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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                 )
Lotus Communications Corporation )        File Number EB-04-LA-085
                                 )
Registrant of Antenna Structure  )      NAL/Acct. No. 200432900008
Los Angeles, California          )                  FRN 0001529171
ASR # 1015922                    )



             NOTICE OF APPARENT LIABILITY FOR FORFEITURE


                                              Released: September 
                                                         29, 2004  

By the District Director, Los Angeles Office, Western Region, 
Enforcement Bureau:

I.   INTRODUCTION

      1.  In this Notice of Apparent Liability for Forfeiture 
 ("NAL"), we find that Lotus Communications Corporation 
 ("Lotus"), registrant of antenna structure # 1015922, in Los 
 Angeles, California, apparently repeatedly violated Section 
 303(q) of the Communications Act of 1934, as amended, (``the 
 Act''), 1 and Sections 17.21(a), 17.47, 17.48 and 17.49 of the 
 Commission's Rules ("Rules")2 by failing to comply with the 
 antenna structure lighting, monitoring and notification 
 requirements specified for antenna structure # 1015922.  We 
 conclude, pursuant to Section 503(b) of the Act,3 that Lotus is 
 apparently liable for a forfeiture in the amount of ten 
 thousand dollars ($10,000).  

II.  BACKGROUND

      2.  On March 22, 2004, the Los Angeles Police Department 
 (``LAPD'') notified its flight crews of tower light outages on 
 towers near the intersection of Martin Luther King Boulevard 
 and Coliseum Street in Los Angeles, California.  On March 23, 
 2004, the LAPD sent a complaint to the FCC concerning the tower 
 light outages and, later on March 23, 2004, a field agent from 
 the Commission's Los Angeles Field Office inspected antenna 
 structure # 1015922, located at 4557 Martin Luther King 
 Boulevard, Los Angeles, California.4    Lotus is the registered 
 owner of the antenna structure.  Lotus is also the licensee of 
 KWKW(AM) which broadcasts from the antenna structure array.  
 The antenna structure is required to have "Obstruction Marking 
 and Lighting" in accordance with the applicable paragraphs of 
 FCC Form 715/715A.5  Specifically, the structure is required to 
 have a flashing red beacon mounted on the top of the antenna 
 structure.6  On levels at approximately two-thirds and one-
 third of the overall height of the structure, there is a 
 requirement of at least two red obstruction lights.7  The 
 lights on the structure are required to burn continuously or be 
 controlled by a light sensitive device.8  During the inspection 
 on March 23, 2004, the field agent observed that the antenna 
 structure's top beacon and three of the four intermediate level 
 side lights were not functioning.  The field agent then 
 contacted the Federal Aviation Administration (``FAA'') and the 
 FAA representative indicated that they had not previously been 
 notified of the tower light outage for antenna structure # 
 1015922.9  

      3.  On March 24, 2004, a field agent from the Los Angeles 
 Office notified the Senior Vice President of Lotus that the 
 lights on antenna structure # 1015922 were not functioning 
 properly.  The Lotus executive acknowledged that while station 
 personnel are required to check the remote light indicator 
 every night for Lotus, they sometimes failed to do the required 
 checks.  The executive also indicated that the remote automatic 
 alarm system was no longer functioning because of a number of 
 false alarms.  On March 25, 2004, the Lotus executive contacted 
 the field agent, thanked him for ``notifying us of a problem,'' 
 and stated that Lotus was ``trying to develop ways [to] 
 electronically back up the monitoring system,'' noting that the 
 ``biggest problem is operator error . . . .''  The Lotus 
 executive told the field agent that the light outages would be 
 repaired by March 31, 2004.  An inspection by the field agent 
 on April 2, 2004, revealed that the extinguished lights on the 
 tower were still not functioning.  A subsequent inspection on 
 April 9, 2004, showed that the lights had been repaired.

      4.  On April 6, 2004, an agent from the Los Angeles Office 
 conducted an inspection of the station logs with the station 
 engineer for KWKW(AM).  The agent observed that the station 
 logs for March 22, 2004, and March 23, 2004, did not note any 
 outages concerning the antenna structure lights.  Although 
 Lotus, the licensee of KWKW(AM) was notified by the field agent 
 on March 24, 2004, that the lights on the antenna structure 
 were not functioning properly, the station logs from March 24, 
 2004, through April 2, 2004, continued to show no light outages 
 on antenna structure # 1015922.  The station engineer also 
 stated to the field agent that the station personnel are unable 
 to identify which tower has a lighting problem, because the 
 automatic system monitors the combined current draw of both 
 towers in the array.

III.      DISCUSSION

      5.  Section 503(b) of the Act provides that any person who 
 willfully or repeatedly fails to comply substantially with the 
 terms and conditions of any license, or willfully or repeatedly 
 fails to comply with any of the provisions of the Act or of any 
 rule, regulation or order issued by the Commission thereunder, 
 shall be liable for a forfeiture penalty.  The term "willful" 
 as used in Section 503(b) has been interpreted to mean simply 
 that the acts or omissions are committed knowingly.10  The term 
 "repeated" means the commission or omission of such act more 
 than once or for more than one day.11  

      6.  Section 303(q) of the Act states that antenna structure 
 owners shall maintain the painting and lighting of antenna 
 structures as prescribed by the Commission. 12  Part 17 of the 
 Rules is designed to promote air safety, by prescribing 
 regulations for antenna structures that constitute or that 
 potentially constitute "a menace to air navigation."13 Antenna 
 structures that exceed 200 feet above ground level ("tall 
 antenna structures") are deemed to constitute or potentially 
 constitute such a menace.14  Section 17.21(a) of the Rules 
 states antenna structures shall be painted and lighted when 
 they exceed 60.96 meters (200 feet) in height above the ground 
 or they require special aeronautical study.15   Antenna 
 structure # 1015922 is 112.5 meters in height and is assigned 
 FCC lighting specifications requiring that the structure have a 
 red obstruction beacon mounted at the top of the antenna 
 structure and at least two red obstruction lights on levels at 
 approximately two-thirds and one-third of the overall height of 
 structure.  On March 22, 2004, a LAPD representative notified 
 its flight crews of the tower light outage on the antenna 
 structure # 1015922 and then complained to the FCC.16  On March 
 23, 2004, a Commission field agent observed that the top beacon 
 and three of the four intermediate side lights were not 
 functioning.  On March 25, 2004, a Lotus executive thanked the 
 field agent for ``notifying us of a problem'' and stated that 
 the lights would be replaced by March 31, 2004.  However, the 
 lights were not replaced until after April 2, 2004.

      7.    Section 17.48 of the Rules requires the owner of any 
 antenna structure which is registered with the Commission and 
 has been assigned lighting specifications to report immediately 
 by telephone or telegraph to the nearest Flight Service Station 
 (``FSS'') or office of the FAA any observed or otherwise known 
 extinguishment or improper functioning of any top steady 
 burning light or any flashing obstruction light, regardless of 
 its position on the antenna structure, not corrected within 30 
 minutes.  The Commission was notified that the light outages on 
 antenna structure # 1015922 occurred as early as March 22, 
 2004.  On March 23, 2004, a Commission field agent contacted 
 the FAA and a FAA representative indicated that no outage for 
 antenna structure # 1015922 had been reported.    

      8.  Section 17.47(a)(1) of the Rules requires the owner of 
 any antenna structure which is registered with the Commission 
 and has been assigned lighting specifications to make an 
 observation of the antenna structure's lights at least once 
 every 24 hours either visually or by observing an automatic 
 properly maintained indicator designed to register any failure 
 of such lights.17  Alternatively, Section 17.47(a)(2) of the 
 Rules requires antenna structure owners to provide and properly 
 maintain an automatic alarm system designed to detect any 
 failure of such lights and to provide indication of such 
 failure to the owner.18  On March 24, 2004, an executive for 
 the tower owner indicated that station personnel did not 
 routinely perform the required observations, and also indicated 
 that the remote automatic alarm system was no longer 
 functioning.  To the extent an automatic monitoring system was 
 functioning, the station engineer indicated to a Commission 
 field agent that station personnel were unable to determine 
 which tower had lighting outages when using it.

      9.    Section 17.49 of the Commission's Rules requires the 
 owner of each antenna structure which is registered with the 
 Commission and has been assigned lighting specifications to 
 maintain a record of any observed or otherwise known 
 extinguishment or improper functioning of a structure light and 
 include information concerning the date, time and nature of the 
 extinguishment or improper functioning; the date and time of 
 FAA notification; and the date, time and nature of adjustments, 
 repairs, or replacements made.  A review of the logs kept by 
 KWKW(AM) concerning the tower reveals that no records were kept 
 that indicated any outages on March 22 and 23, 2004.  The logs 
 further failed to indicate any outages between March 24 and 
 April 2, 2004, even though Lotus, the licensee of the station, 
 was notified of the outages on March 24, 2004, by a Commission 
 field agent.

      10.      The tower light outages on antenna structure # 
 1015922 began as early as March 22, 2004, and perhaps earlier, 
 and extended at least through April 2, 2004.  It appears that 
 Lotus was not aware of the outages until notified by a 
 Commission field agent on March 24, 2004, apparently because 
 Lotus repeatedly failed to effectively monitor the lights on 
 the tower and that Lotus repeatedly failed to record observed 
 or known outages. Lotus' lack of vigilance also, apparently, 
 resulted in its failure to notify the FAA within 30 minutes of 
 the extinguishment of the obstruction lighting on its antenna 
 structure.  Based on the evidence before us, we find that Lotus 
 repeatedly violated Section 303(q) of the Act and Sections 
 17.21(a), 17.47, 17.48, and 17.49 of the Rules by failing to 
 comply with the antenna structure lighting, monitoring and 
 notification requirements for its antenna structure # 1015922.  

      11.      Pursuant to The Commission's Forfeiture Policy 
 Statement and Amendment of Section 1.80 of the Rules to 
 Incorporate the Forfeiture Guidelines, ("Forfeiture Policy 
 Statement"), and Section 1.80 of the Rules, the base forfeiture 
 amount for failing to comply with the prescribed lighting 
 and/or marking for an antenna structure is $10,000.19  In 
 assessing the monetary forfeiture amount, we must also take 
 into account the statutory factors set forth in Section 
 503(b)(2)(D) of the Act, which include the nature, 
 circumstances, extent, and gravity of the violations, and with 
 respect to the violator, the degree of culpability, and history 
 of prior offenses, ability to pay, and other such matters as 
 justice may require.20  Applying the Forfeiture Policy 
 Statement, Section 1.80, and the statutory factors, a $10,000 
 forfeiture is warranted.  
  
IV.  ORDERING CLAUSES

      12.      Accordingly, IT IS ORDERED that, pursuant to 
 Section 503(b) of the Communications Act of 1934, as amended, 
 and Sections 0.111, 0.311 and 1.80 of the Commission's Rules, 
 Lotus Communication Corp. is hereby NOTIFIED of this APPARENT 
 LIABILITY FOR A FORFEITURE in the amount of ten thousand 
 dollars ($10,000) for violations of Section 303(q) of the Act, 
 and Sections 17.21(a), 17.47, 17.48 and 17.49 of the Rules.21  

      13.      IT IS FURTHER ORDERED that, pursuant to Section 
 1.80 of the Commission's Rules within thirty days of the 
 release date of this Notice of Apparent Liability for 
 Forfeiture, Lotus Communication Corp. shall pay the full amount 
 of the proposed forfeiture or shall file a written statement 
 seeking reduction or cancellation of the proposed forfeiture.  

      14.      Payment of the forfeiture must be made by check or 
 similar instrument, payable to the order of the Federal 
 Communications Commission.  The payment must include the 
 NAL/Acct. No. and FRN No. referenced above.  Payment by check 
 or money order may be mailed to Forfeiture Collection Section, 
 Finance Branch, Federal Communications Commission, P.O. Box 
 73482, Chicago, Illinois 60673-7482.  Payment by overnight mail 
 may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor 
 Mailroom, Chicago, IL 60661.   Payment by wire transfer may be 
 made to ABA Number 071000013, receiving bank Bank One, and 
 account number 1165259.

      15.      The response, if any, must be mailed to Federal 
 Communications Commission, Enforcement Bureau, Western Region, 
 Los Angeles Office, 18000 Studebaker Rd., Suite 660, Cerritos, 
 California, 90703 and must include the NAL/Acct. No. referenced 
 in the caption.  

      16.      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 
 ("GAAP"); or (3) some other reliable and objective 
 documentation that accurately reflects the petitioner's current 
 financial status.  Any claim of inability to pay must 
 specifically identify the basis for the claim by reference to 
 the financial documentation submitted.  

      17.      Requests for payment of the full amount of this 
 Notice of Apparent Liability for Forfeiture under an 
 installment plan should be sent to: Chief, Revenue and 
 Receivables Operations Group, 445 12th Street, S.W., 
 Washington, D.C. 20554.22  

      18.      Under the Small Business Paperwork Relief Act of 
 2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the 
 FCC is engaged in a two-year tracking process regarding the 
 size of entities involved in forfeitures.  If you qualify as a 
 small entity and if you wish to be treated as a small entity 
 for tracking purposes, please so certify to us within thirty 
 (30) days of this NAL, either in your response to the NAL or in 
 a separate filing to be sent to the address indicated above for 
 the response.  Your certification should indicate whether you, 
 including your parent entity and its subsidiaries, meet one of 
 the definitions set forth in the list provided by the FCC's 
 Office of Communications Business Opportunities (OCBO) set 
 forth in Attachment A of this Notice of Apparent Liability.  
 This information will be used for tracking purposes only.  Your 
 response or failure to respond to this question will have no 
 effect on your rights and responsibilities pursuant to Section 
 503(b) of the Communications Act.  If you have questions 
 regarding any of the information contained in Attachment A, 
 please contact OCBO at (202) 418-0990.  

      19.      IT IS FURTHER ORDERED that a copy of this Notice 
 of Apparent Liability for Forfeiture shall be sent by Certified 
 Mail, Return Receipt Requested, and regular mail, to Lotus 
 Communications Corporation, 3301 Barham Blvd., Suite 200, Los 
 Angeles, California 90068 and to Lotus Communications 
 Corporation DBA = KWKW, 6290 Sunset Blvd., STE 1600, Los 
 Angeles, California 90028.  


                              FEDERAL COMMUNICATIONS COMMISSION




                              Catherine Deaton
                              District Director
                              Los Angeles Office
                              Western Region
                              Enforcement Bureau


Enclosure:  FCC List of Small Entities

_________________________

147 U.S.C.  303(q).  
247 C.F.R.  17.21(a), 17.47, 17.48 and 17.49.  
347 U.S.C.  503(b).  
4This antenna structure is designated as tower two (2TA2) of a 
two-tower transmitting array.  The other tower of this array is 
ASR # 1015921, also registered to Lotus.
5FCC Forms 715/715A Paragraphs 1, 3, 12, 21.  
6FCC Forms 715/715A, Paragraph 3.  
7FCC Forms 715/715A, Paragraph 12.  
8The light  sensitive  device shall  be  ``adjusted so  that  the 
lights will be turned on at a north sky light intensity level  of 
about 35 foot candles and turned off at a north sky intensity  of 
about 58 foot candles.''  FCC Forms 715/715A Paragraph 21. 
9After a subsequent conversation with the field agent on March 
23, 2004, the FAA issued a Notice to Airmen (``NOTAM'') advising 
pilots of the light outage on the antenna structure.  
10Section 312(f)(1) of the Act, 47 U.S.C.  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', 
when used with reference to the commission or omission of any 
act, 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).  
11Section 312(f)(2) of the Act, 47 U.S.C.  312(f)(2), which also 
applies to violations for which forfeitures are assessed under 
Section 503(b) of the Act, provides that "[t]he term 'repeated', 
when used with reference to the commission or omission of any 
act, means the commission or omission of such act more than once 
or, if such commission or omission is continuous, for more than 
one day."  
1247 U.S.C.  303(q).  
1347 C.F.R.  17.1(a). 
1447 C.F.R.   17.7(a).
1547 C.F.R.  17.21(a).   See Max Media of  Montana, LLC, 18  FCC 
Rcd 21375 (2003).  
16See AAT Communications Corporation, 19 FCC Rcd 2357 (2004).
1747 C.F.R.  17.47(a)(1).  
1847 C.F.R.  17.47(a)(2).  
1912 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.  
2047 U.S.C.  503(b)(2)(D).  
2147 U.S.C.  303(q), 503(b), 47 C.F.R.  0.111, 0.311, 1.80, 
17.21(a), 17.47, 17.48, 17.49.  
22 See 47 C.F.R.  1.1914.