**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | File Number EB-02-TP-329     |
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| TOWER PROPERTIES OF FLORIDA,     | ** | NAL/Acct. No. 200232700024   |
| INC.                             |    |                              |
|                                  | *  | FRN: 0006-1541-40            |
| Owner of Antenna Structure       | *) |                              |
| Registration No. 1029137         | ** |                              |
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| in Gainesville, Florida          | *  |                              |
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| Gainesville, Florida             | ** |                              |
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+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: December 15, 2003 Released: December 17, 2003**

By the Chief, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order ("Order*"), we issue a monetary forfeiture
    in the amount of eight thousand dollars (\$8,000), to Tower
    Properties of Florida, Inc. ("Tower Properties"), owner of antenna
    structure number 1029137 located in Gainesville, Florida, for
    willful and repeated violation of Section 17.50 of the Commission's
    Rules ("Rules").[^1] The noted violation involves Tower Properties'
    failure to maintain good visibility of the required antenna
    structure obstruction marking.

2.  On September 20, 2002, the District Director of the Commission's
    Tampa, Florida Field Office ("Tampa Office") issued a *Notice of
    Apparent Liability for Forfeiture ("NAL*") in the amount of ten
    thousand dollars (\$10,000) to Tower Properties for the noted
    violation. Tower Properties filed a response to the NAL on October
    21, 2002 and supplemented its response on October 30, 2002.

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I.  **BACKGROUND**

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3.  On June 4, 2002, an agent from the Tampa Office inspected antenna
    structure registration number 1029137 and observed that unpainted
    cables attached to the structure precluded good visibility of the
    antenna structure in violation of Section 17.50 of the Rules. The
    agent spoke with Mr. Harvey Budd, President of Tower Properties, who
    confirmed that Tower Properties was the registered owner of the
    instant tower.

4.  On July 1, 2002, two agents from the Tampa Office re-inspected the
    transmitter site for tower number 1029137 and observed that the
    cables remained unpainted and continued to preclude good visibility
    of the antenna structure.

5.  On September 20, 2002, the District Director of the Tampa Office
    issued a *NAL* for a \$10,000.00 forfeiture to Tower Properties for
    failure to maintain good visibility of the required antenna
    structure obstruction marking in willful and repeated violation of
    Section 17.50 of the Rules. Tower Properties filed a response to the
    *NAL* on October 21, 2002, and supplemented its response on October
    30, 2003.

    **III. DISCUSSION**

6.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^2] Section 1.80 of the Rules,[^3] 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). In
    examining Tower Properties' 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.[^4]

7.  Section 17.50 of the Rules provides that antenna structures
    requiring painting under the rules shall be cleaned or repainted as
    often as necessary to maintain good visibility. The ASR for this
    tower explicitly requires that the structure be lighted and painted
    in accordance with FAA Advisory Circular AC 70/7460-1J. This
    Advisory Circular, which is incorporated by reference to our rules
    in Section 17.23 of the Rules,[^5] explicitly states that
    "\[a\]lternate bands of aviation orange and white are normally
    displayed on ... coaxial cable, conduits, and other cables attached
    to the face of a tower."[^6] Further, per Section 17.23 of the
    Rules, "the specifications, standards, and general requirements
    stated in \[this Circular\] are mandatory."

8.  Thus, any cables attached to the face of Tower Properties' tower are
    required to be painted to ensure visibility pursuant to Section
    17.50 of the Rules.[^7] On June 4, and July 1, 2002 agents from the
    Tampa Office found that the antenna structure had black cabling
    obscuring the visibility of the required orange and white paint on
    the structure. Based on the foregoing, we find Tower Properties to
    be in willful and repeated violation of Section 17.50 of the
    Rules.[^8]

9.  In its response to the *NAL*, Tower Properties presented multiple
    arguments in support of its position that the forfeiture should be
    cancelled or substantially reduced. First, Tower Properties points
    out that the tower is being used by multiple entities (WGFL, TV; 2
    FM stations, "a beeper company," and a low power television
    station), some of which use the unpainted cables for their
    transmission lines. To the extent that Tower Properties is arguing
    that its tower tenants are primarily responsible for this violation,
    we disagree. The Commission requires the tower owner to be
    responsible for painting the tower.[^9] Tower Properties as the
    tower owner is, therefore, accountable for the installation of the
    unpainted cables and the continuing violations of Section 17.50.

10. Next, Tower Properties challenges the agent's observation by
    asserting that June 4, 2002, was a very hazy day, making observation
    of the tower difficult. This argument ignores the subsequent
    identical violation observations made on July 1, 2002 by two
    Commission field agents that the tower structure paint was obscured
    by multiple black cables. It is therefore without merit.

11. Tower Properties sets forth its efforts, after notification of its
    violations, to have the tower painted as a mitigating factor in its
    favor.[^10] We disagree. Tower Properties' remedial efforts are not
    a mitigating factor.[^11] Accordingly, Tower's argument that various
    unforeseen and unavoidable circumstances caused a delay in
    compliance until September 7, 2002, has no bearing on the subject
    forfeiture. Tower further argues that the Commission field agent
    discussed painting the tower, but never mentioned that the
    transmission lines needed painting and that even though the field
    agent promised to telephone and inform them of any violation found
    in the inspection, no telephone call was ever received. The failure
    to so inform, Tower contends, caused it to delay the immediate
    painting of the cable or transmission lines until the tower could be
    painted. We disagree. There is no requirement that the Commission
    issue a Notice of Violation ("NOV") or provide a violator an
    opportunity to cure a violation prior to issuance of a *NAL*.[^12]
    Moreover, in light of the rules discussed above, when the agent told
    Tower its tower needed painting, Tower should have understood such
    painting included the transmission lines as well.

12. Further, we do not consider the violation to be a mere "technical"
    violation as argued by Tower Properties. The Commission has
    consistently stressed that it expects full compliance with the
    antenna structure rules because of the potential danger to air
    navigation.[^13] Therefore, Tower Properties' failure to clean or
    repaint its antenna structure as often as necessary to maintain good
    visibility is a serious violation warranting a forfeiture
    assessment.[^14]

    13\. Tower Properties contends, citing Section 17.21(a) of the
    Rules, that in light of fact that some of the cables stop below 200
    feet in height, no violation has occurred. Tower Properties argues
    the forfeiture should be dismissed or reduced because painting and
    lighting is only required for the potion of covered structures that
    exceeds 200 feet. We disagree. Section 17.21(a) states that where a
    tower exceeds 200 feet in height, it is required to be painted. In
    no way does it suggest that any portion of the tower, including any
    attached cables, below 200 feet need not be painted and Tower
    Properties cited no case supporting this argument.

    14\. After reviewing the record in the case, we find that cables
    attached to Tower Properties' tower obstructed good visibility of
    the tower in violation of Section 17.50 of the Rules and was willful
    and repeated. Accordingly, cancellation of the \$10,000 forfeiture
    for this violation is not warranted. However, we do find that Tower
    Properties' has a history of overall compliance, and we reduce the
    forfeiture amount from \$10,000 to \$8,000.00.

    **IV. ORDERING CLAUSES**

15\. 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,[^15]
Tower Properties of Florida, Inc. **IS LIABLE FOR A MONETARY
FORFEITURE** in the amount of eight thousand dollars (\$8,000) for
willfully and repeatedly violating Section 17.50 of the Rules.

16\. 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.[^16] 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. 200232700024 and FRN 0006-1541-40.
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.[^17]

17\. **IT IS FURTHER ORDERED** that copies of this *Order* shall be sent
by Certified Mail Return Receipt Requested and by First Class Mail to
Tower Properties of Florida, Inc., 4190 NW 93^rd^ Ave., Gainesville,
FL32653 and its counsel, Aaron P. Shainis, Esq. Shainis & Peltzman,
Chartered, Suite 240, 1850 M Street, N.W., Washington, D.C. 20036.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 17.50.

[^2]: 47 U.S.C. § 503(b).

[^3]: 47 C.F.R. § 1.80.

[^4]: 47 U.S.C. § 503(b)(2)(D).

[^5]: 47 C.F.R. § 17.23. This section requires conformity with the
    Circular for each new or altered structure to be registered on or
    after January 1, 1996. The Tower Proprties tower was constructed
    after 1996.

[^6]: FAA Advisory Circular AC 70/7460-1J, Obstruction Marking and
    Lighting, Chapter 3. Marking Guidelines, Paragraph 33(c)(1)(g).

[^7]: *See* *Pinnacle Towers, Inc*., 18 FCC Rcd. 16365 (Enf. Bur. 2003).

[^8]: A party "willfully" violates the Commission's rules when it knows
    it is taking the action in question, irrespective of any intent to
    violate the Commission's rules, and repeated means more than once.
    *See* *Southern California Broadcasting Co.,* 6 FCC Rcd. 4387,
    4387-88, ¶ 5 (1991). *See also* *Liability of Hale Broadcasting
    Corp*, 79 FCC 2d 169, 171, ¶ 5 (1980); *Western Wireless
    Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^9]: *See Streamlining the Commission's Antenna Structure Clearance
    Procedure and Revision of Part 17 of the Commission's Rules
    Concerning Construction, Marking and Lighting of Antenna Structure*,
    11 FCC Rcd. 4272, 4290 (1995).

[^10]: The Commission received Tower Properties response to the *NAL* on
    October 21, 2002, and its supplemental filing by its attorney on
    October 30, 2002. The supplemental filing contains a letter and
    color photographs of the tower, presumably after our issuance of the
    *NAL* on September 20, 2002, and after its contractor's painting of
    the tower on September 7, 2002.

[^11]: *See. AT &T Wireless Services, Inc*., 17 FCC Rcd. 21866, 21871
    (2002); *Seawest Yacht Brokers*, 9 FCC Rcd. 6099 (1994); *Station
    KGVL, Inc*. 42 FCC 2d 258, 259 (1973).

[^12]: *See* 47 C.F.R. § 1.89; *AT&T Wireless Services, Inc*., at 21871
    n.20; *WOYK, Inc*., 18 FCC Rcd. 15181, 15182, fn.8 (Enf. Bur. 2003);
    *Access.1 Communications Corp.-NY,* 18 FCC Rcd. 22289 (Enf. Bur.
    2003).

[^13]: *See Spectra Site Communications, Inc*. 17 FCC Rcd. 7884, 7888
    (2002).

[^14]: *See* *AT&T Wireless Services, Inc.,* at 21871.

[^15]: 47 C.F.R. §§ 0.111, 0.311, 0.180(f)(4).

[^16]: 47 U.S.C. § 504(a).

[^17]: *See* 47 C.F.R. § 1.1914.