*Pages 1--4 from  Microsoft Word - 25633.doc*
 Federal  Communications  Commission  DA  03-  691 
 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  Commissions  Rules  (  Rules).  1  The  noted  violation  involves  Morgans  failure  to  light  and  adequately  paint  the  captioned  antenna  structure. 

 2.  On  June  19,  2002,  the  Commissions  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. 

 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. 
1
 Federal  Communications  Commission  DA  03-  691 
 2 
 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  wasnt  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  Commissions  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  FAAs  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 
 III.  DISCUSSION 
 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  Commissions 
 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  Morgans  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.  Morgans  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  Commissions  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  Commissions  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 

 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. 
2
 Federal  Communications  Commission  DA  03-  691 
 3 
 Stenton  Avenue  towers  ASR  indicates  that  it  still  has  the  same  painting  and  lighting  requirements.  We  conclude  that  Morgans  Stenton  Avenue  tower  did  not  have  an  exemption  from  the  Commissions 
 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  Commissions  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  Morgans 
 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,  Morgans 
 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  Morgans  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 

 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  towers  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). 
3
 Federal  Communications  Commission  DA  03-  691 
 4 
 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 

 14  47  U.  S.  C.    504(  a). 
 15  See  47  C.  F.  R.    1.1914. 
4