**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Morgan Tower, Inc. ) File No. EB-01-PA-331

)

Owner of Antenna Structure ) NAL/Acct. No. 200232400004

Registration \# 1060096 )

Cinnaminson, New Jersey ) FRN 0006-3665-04

## FORFEITURE ORDER 

**Adopted: March 7, 2003 Released: March 11, 2003**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of ten thousand dollars (\$10,000) to
    Morgan Tower, Inc. ("Morgan"), for willful violation of Section
    17.21(a) of the Commission's Rules ("Rules").[^1] The noted
    violation involves Morgan's failure to light and adequately paint
    the captioned antenna structure.

2.  On June 19, 2002, the Commission's Philadelphia, Pennsylvania,
    District Office ("Philadelphia Office") issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") to Morgan for a forfeiture in
    the amount of ten thousand dollars (\$10,000).[^2] Morgan filed its
    response to the *NAL* on July 19, 2002.

####  II. BACKGROUND

3.  Morgan owns an antenna structure, antenna structure registration
    ("ASR") number 1060096, located at 7200 Stenton Avenue in
    Philadelphia, Pennsylvania ("Stenton Avenue tower"). On November 29,
    2001, while inspecting radio apparatus located at the same address,
    an agent from the Philadelphia Office noticed that the antenna
    structure had no painting for visibility[^3] or lighting. The ASR
    for that antenna structure then indicated and still indicates that
    the height of the tower is approximately 288 feet above the ground
    and that painting, top beacon lighting and mid-point lighting are
    required.

4.  On January 10, 2002, the Philadelphia Office issued a Notice of
    Violation ("NOV") to Morgan for violation of Section 17.21(a) of the
    Rules. In its response to the NOV, filed on February 20, 2002,
    Morgan asserted, through its contractor, that: ". . . this site . .
    . originally had been given no hazard status by the FAA. This . . .
    is the reason the . . . tower wasn't painted or lit." The response
    to the NOV also indicated that Morgan could not locate or obtain a
    copy of the original no hazard determination and that it had
    requested a new No Hazard determination by the Federal Aviation
    Administration ("FAA").

5.  On June 19, 2002, the Philadelphia Office issued a *NAL* for a
    forfeiture in the amount of \$10,000 to Morgan for failure to paint
    and light its Stenton Avenue tower, in violation of Section 17.21(a)
    of the Rules. In its response, filed July 19, 2002, Morgan seeks
    cancellation of the monetary forfeiture. Morgan argues that the FAA
    made a No Hazard determination in 1985 exempting the Stenton Avenue
    tower from the Commission's painting and lighting requirements.
    Morgan provides the study number of that determination
    (85-AEA-0329-OE) but cannot provide a copy and states that the FAA
    has no record of it. Morgan does provide a copy of the FAA's No
    Hazard determination issued on March 25, 2002, which specifically
    requires painting and lighting. In addition, Morgan argues that it
    did not act willfully and that it "expeditiously" corrected the
    violations.[^4]

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III. **DISCUSSION**

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6.  The forfeiture amount in this case was assessed in accordance with
    Section 503(b) of the Communications Act of 1934, as amended
    ("Act"),[^5] Section 1.80 of the Rules,[^6] 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) ("*Policy
    Statement*"). In examining Morgan'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.[^7].

7.  Section 17.21(a) of the Rules requires antenna structures to be
    painted and lighted when they exceed 200 feet in height above the
    ground. Morgan's Stenton Avenue tower is subject to this
    requirement. Morgan contends that a No Hazard determination
    (85-AEA-0329-OE) by the FAA in 1985 exempted its Stenton Avenue
    tower from this requirement. Morgan, however, cannot produce a copy
    of that determination and states that the FAA has no record of it.
    The Commission's records, on the other hand, indicate that the
    Commission assigned painting and lighting requirements to the
    Stenton Avenue tower on the basis of FAA determination
    85-AEA-0329-OE. Further, the Commission's tower registration data
    base indicates that Morgan registered the Stenton Avenue tower on
    January 27, 1999,[^8] assigned ASR number 1060096. The ASR issued to
    Morgan assigned the Stenton Avenue tower the same painting and
    lighting requirements as recommended by FAA determination
    85-AEA-0329-OE and the Stenton Avenue tower's ASR indicates that it
    still has the same painting and lighting requirements. We conclude
    that Morgan's Stenton Avenue tower did not have an exemption from
    the Commission's painting and lighting requirements and that Morgan
    violated Section 17.21(a) of the Rules by failing to paint and light
    its tower.

8.  Morgan also argues that it did not "willfully" violate the
    Commission's rules. Section 503(b) of the Act gives the Commission
    authority to assess a forfeiture penalty against any person if the
    Commission determines that the person has "willfully or repeatedly"
    failed to comply with the provisions of the Act or with any rule,
    regulation or order issued by the Commission.[^9] It is evident from
    Morgan's response to the NOV that Morgan made a conscious decision
    not to paint or light the Stenton Avenue tower.[^10] We conclude
    that Morgan willfully violated Section 17.21(a) of the Rules.

9.  Morgan contends that it corrected the violations expeditiously. An
    observation on January 29, 2003, indicates that Morgan has not
    painted the Stenton Avenue tower for visibility but instead has
    installed a white lighting system. Paragraph 36 of FAA Advisory
    Circular AC 70/7460-1K permits the substitution of white lighting
    for painting but requires that the Commission be notified. Morgan,
    however, has not notified the Commission of this substitution and,
    as a result, the ASR still indicates that painting is required.
    Morgan, therefore, is not yet in full compliance.[^11] Furthermore,
    Morgan's installation of lighting, completed on or about June 1,
    2002, cannot be considered expeditious because Morgan had been
    notified of the painting and lighting violation more than 4 1/2
    months earlier, on January 10, 2002. In any event, even if Morgan
    had expeditiously corrected the violations, no mitigation would be
    warranted. As the Commission stated in *Seawest Yacht Brokers*, 9
    FCC Rcd 6099, 6099 (1994), "corrective action taken to come into
    compliance with Commission rules or policy is expected, and does not
    nullify or mitigate any prior forfeitures or violations."[^12]

10. We have examined Morgan's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that
    Morgan willfully violated Section 17.21(a) of the Rules and find no
    basis for cancellation or reduction of the proposed \$10,000
    monetary forfeiture.

    **IV. ORDERING CLAUSES**

11. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^13]
    Morgan **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of ten
    thousand dollars (\$10,000) for failure to light and adequately
    paint the captioned antenna structure, in willful violation of
    Section 17.21(a) of the Rules.

12. 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.[^14] Payment may 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 reference NAL/Acct. No. 200232400004 and FRN
    0006-3665-04. 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.[^15]

13. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to Morgan
    Tower, Inc., 700 Route 130 N., Suite 204, Cinnaminson, New Jersey
    08077.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 17.21(a).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200232400004 (Enf. Bur., Philadelphia Office, released June 19,
    2002).

[^3]: The Stenton Avenue tower was painted but apparently only for the
    purpose of extending the life of the structure, not for visibility.

[^4]: According to its response to the *NAL*, Morgan completed the
    installation of tower lighting on or about June 1, 2002.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: Only towers having painting and lighting requirements are required
    to be registered. *See* Section 17.4 of the Rules, 47 C.F.R. § 17.4.

[^9]: Section 312(f)(1) of the Act, 47 USC § 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); *see also* *Nan Tan Computer Co*., 9 FCC Rcd 3092 (1994).

[^10]: *See* Paragraph 4, *supra*.

[^11]: To bring its Stenton Avenue tower into compliance, Morgan must
    file FCC Form 854 together with a copy of the most recent FAA
    determination and a statement describing the change in the tower's
    marking and lighting.

[^12]: *See also Radio Station KGVL, Inc.,* 42 FCC 2d 258, 259 (1973);
    and *Executive Broadcasting Corp*., 3 FCC 2d 699, 700 (1966).

[^13]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^14]: 47 U.S.C. § 504(a).

[^15]: *See* 47 C.F.R. § 1.1914.