####  Before the 

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-04-DL-047

Andrews Tower Rental, Inc. )

Owner of Antenna Supporting Structure ) NAL/Acct. No. 200432500006

1058251 near Brownwood, Texas )

Fort Worth, Texas ) FRN 0006139463

)

## 

## FORFEITURE ORDER

**Adopted: July 29, 2004 Released: August 2, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1\. In this *Forfeiture Order* ("*Order*"), we issue a monetary
forfeiture in the amount of six thousand dollars (\$6,000) to Andrews
Tower Rental, Inc. ("Andrews Tower"), owner of antenna structure 1058251
near Brownwood, Texas, for willful and repeated violation of Section
17.50 of the Commission's Rules ("Rules").[^1] The noted violation
involves Andrews Tower's failure to clean and repaint its antenna
structure to maintain good visibility.

**II.** **BACKGROUND**

2\. On February 18, 2004, an agent from the Commission's Dallas Office
("Dallas Office") inspected Andrews Tower's antenna structure number
1058251. The Antenna Structure Registration for this structure specifies
that the structure must be painted. The agent observed that the paint
bands were faded, dull, and discolored. The paint band marking had
deteriorated over time, such that the bands could not be distinguished
at a distance of one-fourth of a mile from the structure. The
deteriorated condition of the marking significantly reduced the antenna
structure visibility. The agent made additional observations of the
antenna structure on February 19 and 20, 2004.

3.  On February 24, 2004 and March 3, 2004, the agent interviewed John
    Andrews, Executive Vice President, of Andrews Tower. Mr. Andrews
    stated he planned to repaint the tower after some restructuring of
    the tower was completed. Construction on the tower, however, was not
    scheduled to commence until after the spring storm season.

4.  On June 10, 2004, the Dallas Office issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") to Andrews Tower in the amount
    of ten thousand dollars (\$10,000).[^2] Andrews Tower filed a
    response to the *NAL* on July 9, 2004 seeking a reduction of the
    proposed forfeiture based on its efforts to comply with the Rules
    and the company's nearly 50-year history of operations. Andrews
    Tower asserts that it made arrangements with two different painting
    companies to have the tower repainted in 2003 but that both
    contractors failed to meet their commitments. Andrews Tower then
    hired a third contractor to complete the job. It states that there
    is a shortage of reliable painting crews in the area and that
    weather conditions in 2003 limited when painting could be completed
    safely. It also notes that Mr. Andrews and his wife both experienced
    serious health problems during 2002 and 2003, which required lengthy
    hospital stays and interfered with Mr. Andrews' ability to oversee
    the operations and maintenance of the tower. Finally, Andrews Tower
    states that the proposed forfeiture is its first fine or violation
    from the Commission

### III. DISCUSSION

III. 

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5.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^3] Section 1.80 of the Rules,[^4] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC
    Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("*Forfeiture Policy Statement*"). In examining Andrews Tower's
    response, Section 503(b) of the Act requires that the Commission
    take into account the nature, circumstances, extent and gravity of
    the violation and, with respect to the violator, the degree of
    culpability, any history of prior offenses, ability to pay, and
    other such matters as justice may require.[^5]

6.  Section 17.50 of the Rules requires antenna structures requiring
    painting to be cleaned or repainted as often as necessary to
    maintain good visibility.[^6] On February 18, 2004 through February
    20, 2004, Andrews Tower's antenna structure 1058251 near Brownwood,
    Texas had severely faded, dull and discolored paint, making the
    bands indistinguishable at a distance of one-fourth of a mile from
    the structure and resulting in poor visibility of the structure's
    obstruction markings. Andrews Tower acknowledges that the tower
    needed painting at that time. We find that Andrews Tower's violation
    of Section 17.50 of the Rules was willful [^7] and repeated.[^8]

7.  Andrews Tower asserts that the forfeiture should be reduced because
    it placed orders to repaint the tower in 2003 prior to the agents'
    inspection. Although we do not believe that Andrews Tower\'s efforts
    to comply are sufficient to justify canceling the forfeiture, we do
    believe that those same efforts constitute good faith on its part
    that merit a reduction of the proposed forfeiture.[^9]

8.  Finally, Andrews Tower argues the forfeiture should be reduced
    because it has not received a Notice of Forfeiture prior to this
    *NAL*. After considering Andrews Tower's past history of compliance,
    we conclude that a further reduction of the forfeiture amount is
    appropriate.[^10]

9.  We have examined Andrews Tower's response to the *NAL* pursuant to
    the statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that
    Andrews Tower willfully and repeatedly violated Section 17.50 of the
    Rules and find that, although cancellation of the proposed monetary
    forfeiture is not warranted, reduction of the forfeiture amount to
    \$6,000 is appropriate based on Andrews Tower's good faith efforts
    to comply and its past history of compliance with the Rules.

#### IV. ORDERING CLAUSES

10. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311 and 1.80(f)(4) of the Commission's Rules,[^11] Andrews Tower
    Rental, Inc. **IS LIABLE FOR A MONETARY FORFEITURE** in the amount
    of ­six thousand dollars (\$6,000) for willfully and repeatedly
    violating Section 17.50 of the Rules.

11. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    *Order*. If the forfeiture is not paid within the period specified,
    the case may be referred to the Department of Justice for collection
    pursuant to Section 504(a) of the Act.[^12] Payment shall be made by
    mailing a check or similar instrument, payable to the order of the
    \"Federal Communications Commission,\" to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should note NAL/Acct. No. 200432500006, and FRN 0006139463.
    Requests for full payment under an installment plan should be sent
    to: Chief, Revenue and Receivables Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^13]

12. **IT IS FURTHER ORDERED** that, a copy of this *Order* shall be sent
    by Certified Mail Return Receipt Requested and by First Class Mail
    to John Andrews, President, Andrews Tower Rental, Inc.,1420 Layton
    Avenue, Fort Worth, TX, 76117.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 17.50.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200432500006 (Enf. Bur., Dallas Office, released June 10, 2004).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 47 C.F.R. § 17.50.

[^7]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that "\[t\]he term 'willful,' ... means
    the conscious and deliberate commission or omission of such act,
    irrespective of any intent to violate any provision of this Act or
    any rule or regulation of the Commission authorized by this Act
    ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^8]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The *Conference
    Report* for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^9]: *See* *Radio One Licenses, Inc.*, 18 FCC Rcd 15964 (2003).

[^10]: *See South Central Communications Corp*., 17 FCC Rcd 22701 (Enf.
    Bur. 2002).

[^11]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^12]: 47 U.S.C. § 504(a).

[^13]: *See* 47 C.F.R. § 1.1914.