####  Before the 

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-02-KC-504

Pinnacle Towers, Inc. )

Owner of Antenna Structure \# 1053157 in ) NAL/Acct. No. 200232560020

Des Moines, Iowa )

)

Sarasota, Florida ) FRN 0006-1561-11

## 

## [FORFEITURE ORDER]{.underline}

**Adopted: August 7, 2003 Released: August 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 Pinnacle
Towers, Inc. ("Pinnacle"), owner of antenna structure number 1053157 in
Des Moines, Iowa, for willful violation of Section 17.50 of the
Commission's Rules ("Rules").[^1] The noted violation involves
Pinnacle's failure to clean and repaint its antenna structure to
maintain good visibility.

2\. On July 22, 2002, the District Director of the Commission\'s Kansas
City, Missouri Field Office ("Kansas City Office") issued a *Notice of
Apparent Liability for Forfeiture* ("*NAL*")[^2] in the amount of twenty
thousand dollars (\$20,000) to Pinnacle. Pinnacle filed a response on
August 21, 2002.

**II.** **BACKGROUND**

3\. On June 24, 2002, a Commission agent from the Kansas City Office
inspected Pinnacle's antenna structure number 1053157, located in Des
Moines, Iowa ("Des Moines tower"). While conducting the inspection, the
agent observed black cabling attached to the lower half to two-thirds of
the structure, which covered the painted metal tower and reduced
visibility of the structure. On July 22, 2002, the District Director of
the Kansas City Office issued a *NAL* for \$20,000 to Pinnacle for
violating Section 17.50 of the Rules. The *NAL* doubled the \$10,000
base forfeiture amount for tower painting violations to \$20,000 because
the Kansas City Office determined that Pinnacle had a history of
violating Section 17.50 of the Rules.

4\. In its response filed on August 21, 2002, Pinnacle claims that the
forfeiture proposed against it is unfair for several reasons. Pinnacle
argues that its recent bankruptcy filing was not taken into account in
the *NAL.* Pinnacle also argues that the finding in the *NAL* that it
has a history of non-compliance with the painting rules is overstated
and is discriminatory against large tower owners. Pinnacle states that
the painting violations cited in the *NAL* as the basis for this finding
are extremely small in number considering that it owns over 2,200
registered towers and that these violations had been fixed or were in
the process of being fixed when the Notices of Violation ("NOVs") in
those cases were issued. Pinnacle also claims that it did not willfully
violate the painting rule because its contracts with new tower lessees
specifically require the lessees to paint their cables, Pinnacle reviews
its towers for Federal Aviation Administration ("FAA") and FCC
compliance on a quarterly basis, and Pinnacle had no other notice of the
alleged violation. Further, Pinnacle maintains that there has been no
demonstration that its violation was repeated. Additionally, Pinnacle
contends that the rule prohibiting obstructions from unpainted cables
has not been articulated, and any determination of obstruction is
therefore arbitrary. Finally, Pinnacle asserts that the *NAL* is
inconsistent with several recent forfeiture orders issued with respect
to Section 17.50 painting violations. For all of these reasons, Pinnacle
requests that the proposed forfeiture be eliminated or substantially
reduced.

### III. DISCUSSION

III. 5\. The proposed forfeiture amount in this case is being 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). In examining Pinnacle'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 provides that antenna structures
     requiring painting under the rules shall be cleaned or repainted as
     often as necessary to maintain good visibility. Antenna structure
     number 1053157, owned by Pinnacle, has specified lighting and
     painting requirements that include painting the structure with
     alternating bands of aviation orange and white. On June 24, 2002,
     an agent from the Kansas City Office found that the antenna
     structure had black cabling obscuring the orange and white paint,
     causing the structure to have an overall dark appearance on the
     lower half to two-thirds of the structure.

7\. In its response to the *NAL*, Pinnacle presented several arguments
in support of its position that the forfeiture should be cancelled or
substantially reduced. First, Pinnacle argues that its recent bankruptcy
filing was not taken into account in the *NAL.* It is unclear whether
Pinnacle is asserting an inability to pay claim or is simply arguing
that the forfeiture amount should have been affected by its bankruptcy
filing. If Pinnacle is claiming an inability to pay, the *NAL*
explicitly stated that the Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most recent
three-year period; (2) financial statements prepared according to
generally accepted accounting practices; or (3) some other reliable and
objective documentation that accurately reflects the petitioner\'s
current financial status. Pinnacle did not provide any financial
documentation in support of its request for cancellation or reduction of
the forfeiture and, therefore, we have no basis upon which to analyze an
inability to pay claim. Further, although there is precedent for
reducing or rescinding a forfeiture based on bankruptcy in certain
circumstances,[^6] we do not believe that Pinnacle has justified a
reduction or rescission in this case because it has not provided
financial documentation for the Bureau's analysis, and because, even
though it has filed bankruptcy, it retains control over its assets.
Moreover, filing for bankruptcy does not preclude the Commission from
issuing an order imposing a forfeiture upon Pinnacle.[^7]

8\. Pinnacle also argues that the finding in the *NAL* that it has a
history of non-compliance with the painting rules is overstated and is
discriminatory against large tower owners. Pinnacle states that the
painting violations cited in the *NAL* as the basis for this finding are
extremely small in number considering that it owns over 2,200 registered
towers and that they had been fixed or were in the process of being
fixed when the NOVs were issued. The *NAL* doubled the \$10,000 base
amount for this violation to \$20,000 because Pinnacle had been issued
three prior NOVs for violations of Section 17.50 of the Rules. However,
the record reflects that in two of these prior cases, Pinnacle was aware
of the painting problems and had begun to take corrective measures prior
to the inspections that led to the NOVs. We do not believe that the one
remaining prior violation of Section 17.50 is sufficient to justify
doubling the base forfeiture amount for the violation in the instant
case. Consequently, we reduce the forfeiture amount to \$10,000.

9\. Next, Pinnacle claims that it did not willfully violate the painting
requirement because Pinnacle's contracts with new tower lessees
specifically require them to paint their cables, Pinnacle reviews its
towers for FAA and FCC compliance on a quarterly basis, and Pinnacle had
no notice of alleged violations. Pinnacle asserts that "The latest
quarterly report for the Des Moines tower did not indicate that the
tower had any marking problem. The contractor employed by Pinnacle did
not understand that unpainted lines can obstruct a tower's visibility in
violation of FCC rules."

10\. As the Commission recently reiterated, "the Commission has long
held that licensees and other Commission regulatees are responsible for
the acts and omissions of their employees and independent contractors
and has consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent contractors have
resulted in violations."[^8] Pinnacle is, therefore, chargeable with
knowledge of its contractor's observation of unpainted cables at the Des
Moines tower even if the contractor failed to provide this information
to Pinnacle. Additionally, one of the NOVs referenced in Paragraph 8,
above,[^9] put Pinnacle on notice concerning the need to paint the
cables. We conclude that Pinnacle's violation of the painting
requirement was willful.

11\. 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. In light of our determination that Pinnacle's violations
were willful, it is not necessary to determine whether they were also
repeated. [^10]

12\. Additionally, Pinnacle contends that the rule prohibiting
obstructions from unpainted cables has not been articulated and any
determination of obstruction is therefore arbitrary. We disagree.
Pinnacle acknowledges that the antenna structure registration for its
Des Moines tower requires it to comply with FAA Advisory Circular AC
70/7460-1J. This Advisory Circular explicitly states that "alternative
bands of aviation orange and white are normally displayed on ... coaxial
cable, conduits and other cables attached to the face of a tower."[^11]
Thus, any cables attached to the face of Pinnacle's tower are required
to be painted.[^12] Moreover, the agent inspected the tower and
determined that the unpainted cables did, in fact, obscure the
visibility of the tower in violation of Section 17.50 of the Rules.
Further, the photographic evidence provided by the agent supports his
determination that Pinnacle's tower was indeed obstructed by the cables.

13\. Finally, Pinnacle asserts that the *NAL* is inconsistent with
several recent forfeiture orders issued with respect to Section 17.50
painting violations. Specifically, Pinnacle argues that in three prior
cases, forfeitures of \$19,000 or \$20,000 were assessed for multiple
rule violations, including a Section 17.50 violation, whereas in this
case a \$20,000 forfeiture was proposed for a single violation of
Section 17.50. Because we have reduced the forfeiture in this case to
the \$10,000 base forfeiture amount, we need not address this argument.
Pinnacle also asserts that in these prior cases, the tower owner was
given an NOV and an opportunity to cure the violation prior to issuance
of the *NAL*. However, there is no requirement that the Commission issue
an NOV or provide a violator an opportunity to cure a violation prior to
issuing an *NAL.*[^13]

#### ORDERING CLAUSES

14\. 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,[^14]
Pinnacle **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of ten
thousand dollars (\$10,000) for failure to clean and repaint its antenna
structure to maintain good visibility, in willful violation of Section
17.50 of the Rules.

15\. 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.[^15] 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. 200232560020 and FRN 0006-1561-11.
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.[^16]

16\. **IT IS FURTHER ORDERED** that copies of this *Order* shall be sent
by Certified Mail Return Receipt Requested and by First Class Mail to
Pinnacle Towers, Inc., 301 N. Cattlemen Road, 3rd Floor, Sarasota,
Florida 34232 and its counsel, Thomas B. Magee, Esq. Keller and Heckman
LLP, 1001 G Street, Suite 500 West, Washington, DC 20001.

**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.
    200232560020 (Enf. Bur., Kansas City Office, released July 22,
    2002).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: ^?^ *See, e.g., Dennis Elam, Trustee for Bakcor Broadcasting,
    Inc., Debtor*, 11 FCC Rcd 1137 (1996) (forfeiture rescinded after
    bankruptcy trustee was appointed and the violator was no longer
    associated with the subject radio stations); *Interstate Savings,
    Inc.* *d/b/a ISI Communications*, 12 FCC Rcd 2934 (CCB 1997)
    (forfeiture rescinded where trustee was appointed in Chapter 7
    liquidation, removing violator from operating as a common carrier
    and from involvement in dissolution or distribution of assets.
    Requiring trustee to pay the forfeiture would diminish estate assets
    available to innocent creditors and serve no public interest
    purpose.).

[^7]: ^?^ *See* 11 U.S.C. § 362(b)(4). *See Coleman Enterprises, Inc.*,
    16 FCC Rcd 24385, 24389 n. 28 (2000) (filing for chapter 11
    bankruptcy does not preclude the Commission from issuing an *Order
    of Forfeiture*). *See also United States of America v. Commonwealth
    Companies, Inc.*, 913 F.2d 518 (8^th^ Cir. 1990).

[^8]: ^?^ *See, e.g., Eure Family Limited Partnership,* 17 FCC Rcd
    21861, 21863-64 (2002) (internal quotation marks omitted) and cases
    cited therein.

[^9]: That *NOV* was issued on January 15, 2001, by the Commission's
    Tampa, Florida, Field Office, for violation of Section 17.50 of the
    Rules because of unpainted cables running along the side of the
    antenna structure.

[^10]: *Koke, Inc.*, 23 FCC 2d 191 (1970).

[^11]: FAA Advisory Circular AC 70/7460-1J, Obstruction Marking and
    Lighting, Chapter 3, Marking Guidelines, Paragraph 33(d)(7).

[^12]: *See Pinnacle Towers, Inc.*, 18 FCC Rcd 6419, 6419-6420 (Enf.
    Bur. 2003).

[^13]: ^?^ *See* 47 C.F.R. § 1.89; *AT&T Wireless Services, Inc.*, 17
    FCC Rcd 21866, 21871 n. 20; and *WOYK, Inc.*, DA 03-2367, fn. 8
    (Enf. Bur. released July 22, 2003).

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^15]: 47 U.S.C. § 504(a).

[^16]: *See* 47 C.F.R. § 1.1914.