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 Federal  Communications  Commission  DA  03-  2140 
 Before  the  Federal  Communications  Commission 


 Washington,  D.  C.  20554 


 In  the  Matter  of  )  File  No.  EB-  02-  KC-  301  ) 
 Midwest  Tower  Partners,  LLC  )  NAL/  Acct.  No.  20023256007  ) 
 Owner  of  Antenna  Structure  1045073  )  FRN  #0006-  1628-  53  ) 
 Milwaukee,  Wisconsin  ) 
 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  June  30,  2003  Released:  July  2,  2003 
 By  the  Chief,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order  (  Order),  we  cancel  the  proposed  monetary  forfeiture  in  the  amount  of  ten  thousand  dollars  ($  10,000),  issued  to  Midwest  Tower 
 Partners,  LLC  (  Midwest)  for  its  apparent  willful  violation  of  Section  17.50  of  the  Commissions  Rules  (  Rules).  1  The  alleged  violation  involved  Midwests  failure  to  clean  or 
 repaint  its  antenna  structure  as  often  as  necessary  to  maintain  good  visibility. 
 2.  On  June  4,  2002,  the  District  Director  of  the  Commissions  Kansas  City,  Missouri  Field  Office  (  Kansas  City  Office)  issued  a  Notice  of  Apparent  Liability  for  Forfeiture 
 (  NAL)  2  to  Midwest  for  $10,000.  On  June  28,  2002,  Midwest  filed  a  response  to  the  NAL. 
 II.  BACKGROUND 
 3.  On  May  1,  2002,  an  agent  from  the  Kansas  City  Office  inspected  Midwests  antenna  structure  with  registration  number  1045073  located  at  41  42  20  N  latitude  &  091  28 
 08  W  longitude,  1.24  miles  east  of  Iowa  City,  Iowa.  The  agent  observed  black,  unpainted  coaxial  cable  on  all  three  legs  of  the  structure  and  over  its  entire  length.  The  agent  determined 
 that  the  coaxial  cables  obscured  the  towers  paint,  to  the  degree  that  it  reduced  its  visibility  in  violation  of  Section  17.50  of  the  Rules. 


 4.  On  June  4,  2002,  the  Kansas  City  Office  issued  a  NAL  to  Midwest  for  its  failure  to  maintain  good  visibility  of  its  tower  in  apparent  willful  violation  of  Section  17.50  of  the  Rules. 
 On  June  28,  2002,  Midwest  filed  a  response  to  the  NAL  seeking  cancellation  or  reduction  of  the  proposed  forfeiture.  In  its  response,  Midwest  denies  that  the  coaxial  cables  referred  to  in  the  NAL 
 compromised  the  good  visibility  of  the  antenna  structure  in  violation  of  Section  17.50.  In  support 


 1  47  C.  F.  R.    17.50. 
 2  Notice  of  Apparent  Liability  for  Forfeiture,  NAL  Acct.  No.  200232560007  (Enf.  Bur.,  Kansas  City 
 Office,  rel.  June  4,  2002). 
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 of  this  position,  Midwest  submitted  photographs  with  its  response  from  various  angles  and  distances  evincing  the  good  visibility  of  the  antenna  structure.  Furthermore,  Midwest  asserts  that 
 Chapter  3  of  the  Federal  Aviation  Administrations  (  FAAs)  Advisory  Circular  AC70/  7460-  1K  on  Obstruction  Marking  and  Lighting  (  Advisory  Circular)  states  that  the  purpose  of  the 
 marking  guidelines  is,  to  make  certain  structures  conspicuous  to  pilots  during  daylight  hours  3  and  that  Midwests  tower  complies  with  these  guidelines  because  the  coaxial  cable  is  narrower 
 than  the  legs  of  the  structure  and  thus  does  not  impair  the  visibility  of  the  paint  such  that  it  is  harmful  to  aircraft.  Midwest  further  states  that  the  painted  surface  on  the  structure  does  not  show 
 signs  of  scaling,  oxidation,  chipping,  layers  of  contamination,  or  other  defects  that  would  require  repainting  under  Section  17.50  of  the  Rules  or  the  Advisory  Circular.  Finally,  Midwest  cites  its 
 history  of  overall  compliance  in  requesting  a  cancellation  or  reduction  of  the  proposed  forfeiture. 
 III.  DISCUSSION 
 5.  The  forfeiture  amount  in  this  case  was  proposed  in  accordance  with  Section  503(  b)  of  the  Communications  Act  of  1934  as  amended  (  Act),  4  Section  1.80  of  the  Rules,  5  and 
 The  Commissions  Forfeiture  Policy  Statement  and  Amendment  of  Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines.  6  In  examining  Midwests  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 
 6.  Section  17.50  of  the  Rules  states  that  [  a]  ntenna  structures  requiring  painting  under  this  part  shall  be  cleaned  or  repainted  as  often  as  necessary  to  maintain  good  visibility.  8 
 After  reviewing  the  record  in  this  case,  including  the  photographs  submitted  by  Midwest,  we  conclude  that  the  evidence  does  not  support  a  finding  that  the  black,  unpainted  coaxial  cables 
 attached  to  Midwests  antenna  structure  obstructed  the  good  visibility  of  the  structure  in  violation  of  Section  17.  50  of  the  Rules.  9  We  therefore,  cancel  the  NAL. 


 3  FAA  Advisory  Circular  AC  70/  7460-  1k,  Obstruction  Marking  and  Lighting,  Chapter  3.  Marking 
 Guidelines,  Paragraph  30. 
 4  47  U.  S.  C.    503(  b). 


 5  47  C.  F.  R.    1.80. 
 6  12  FCC  Rcd  17087  (1997),  recon.  denied,  15  FCC  Rcd  303  (1999). 
 7  47  U.  S.  C.    503(  b)(  2)(  D). 
 8  47  C.  F.  R.    17.50. 
 9  Separate  from  our  finding  above,  and  in  response  to  Midwests  assertion  that  it  is  in  compliance  with  the 
 Advisory  Circular  because  the  unpainted  coaxial  cables  are  narrower  than  the  legs  of  the  structure,  we  note  that  the  Advisory  Circular  explicitly  states  that  [  a]  lternate  bands  of  aviation  orange  and  white  are  normally 


 displayed  on  [c]  oaxial  cable,  conduits,  and  other  cables  attached  to  the  face  of  the  tower.  FAA  Advisory  Circular  AC  70/  7460-  1K,  Obstruction  Marking  and  Lighting,  Chapter  3.  Marking  Guidelines, 
 Paragraph  33(  d).  Thus,  compliance  with  the  Advisory  Circular  would  additionally  require  any  cables  attached  to  the  face  of  the  tower  to  also  be  painted.  See  Pinnacle  Towers  Inc.,  18  FCC  Rcd.  6419  (Enf. 
 Bur.  2003). 
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 7.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Section  504(  b)  of  the  Act,  10  and  Section  1.80(  f)(  4)  of  the  Rules,  11  the  NAL,  NAL/  Acct.  No.  200232560007  issued  to  Midwest 
 Tower  Partners,  LLC  IS  CANCELLED. 
 8.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Order  shall  be  sent  by  first  class  mail  and  certified  mail,  return  receipt  requested,  to  Midwest  Tower  Partners,  LLC,  12323 
 W.  Fairview  Avenue,  Milwaukee,  Wisconsin  53226  and  to  its  counsel,  B.  Lynn  F.  Ratnavale,  Esq.,  at  Lukas,  Nace,  Gutierrez  &  Sachs,  Chartered,  1111  19th  Street,  N.  W.,  Suite  1200, 
 Washington,  D.  C.  20036. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 David  H.  Solomon  Chief,  Enforcement  Bureau 


 10  47  U.  S.  C.    504(  b). 
 11  47  C.  F.  R.    1.80(  f)(  4). 
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