Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
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
ASR # 1015922 ) FRN 0001529171
Los Angeles, California )
Adopted: June 27, 2005
Released: June 30, 2005
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand
dollars ($10,000) to Lotus Communications Corporation
("Lotus"), registrant of antenna structure # 1015922,
in Los Angeles, California, for repeated violations of
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 On September 29, 2004, the Commission's
Los Angeles Office issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of
$10,000 against Lotus after determining that Lotus had
repeatedly failed to comply with the antenna structure
lighting, monitoring and notification requirements
specified for antenna structure # 1015922. Such
failure by Lotus created a public safety hazard that
Lotus was unaware of until notified by a Commission
agent. In this Order, we consider Lotus' arguments
that its conduct, and compliance history, do not
warrant a $10,000 forfeiture.
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 Los Angeles Office inspected antenna
structure # 1015922, located at 4557 Martin Luther
King Boulevard, Los Angeles, California.3 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.4 Specifically, the structure is required to
have a flashing red beacon mounted on the top of the
antenna structure.5 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.6 The lights on the structure are
required to burn continuously or be controlled by a
light sensitive device.7 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 #
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
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.
5. On September 29, 2004, the Los Angeles Office issued a
NAL in the amount of $10,000 to Lotus.9 After being
granted an extension, Lotus filed a response to the
NAL on November 23, 2004 (``Response''). In its
Response, Lotus does not dispute that the lights on
antenna structure #1015922 were not functioning on the
days cited in the NAL. Instead, Lotus argues that a
forfeiture is unwarranted because the duration of the
outage was merely a small percentage of the time that
Lotus has owned the antenna structure and that Lotus
has a history of ``unblemished compliance'' with the
Commission's Rules. Lotus also argues that the
violation was not willful. Finally, Lotus argues that
because of its ``compliance-oriented operating
practices'' and its ``vigorous corrective action taken
long prior to the issuance of the NAL,'' the
applicable law does not support the proposed
forfeiture and that such a forfeiture would be
contrary to ``sound public policy'' and ``would fail
to serve any public purpose.''
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Act,10 Section 1.80 of the Rules,11 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) (``Forfeiture Policy
Statement''). In examining Lotus' 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.12
7. 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. 13 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."14 Antenna
structures that exceed 200 feet above ground level
("tall antenna structures") are deemed to constitute
or potentially constitute such a menace.15 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.16 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. Lotus does
not deny that the lights on the structure were not
functioning, as described in the NAL, and acknowledges
that the lights were not repaired until April 6, 2004.
8. 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.
Lotus acknowledges that it was not aware of the light
outages on the structure until notified by a
Commission agent on March 24, 2004. Lotus further
acknowledges that the required FAA notification was
made by the Commission agent, and not Lotus, the
antenna structure owner, as required by Section 17.48.
9. 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 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.19 Lotus states that in March 2004, it had a
compliance program in place which included the
requirement of a nightly check by KWKW station
personnel of the remote light indicator, a monitoring
device installed by Lotus to measure the electrical
flow to the tower lights. This nightly check was
backed up by periodic physical inspections of the
tower lights by the KWKW Chief Operator.20
Additionally, KWKW personnel were required to ``notify
management immediately of tower light malfunctions and
to note such problems in the station's transmitter
log.'' Lotus acknowledges that an omission by KWKW
Station personnel to perform the required checks
``derailed the system.'' Because Lotus first learned
of the outage on March 24, 2004, it admits that the
transmitter log does not include any notification of
the outage prior to that date. Lotus does not
explain, however, why the subsequent logs do not
reference the outages.
10. In general, Lotus does not deny that the incidents
detailed in the NAL occurred. Instead, Lotus argues
that its violations were not willful. We note that
the Los Angeles Office did not find any apparent
willful violation of the Communications Act and the
Commission's Rules. Rather, it found that Lotus
apparently repeatedly violated the Communications Act
and the Commission's Rules. Because we find the
violations to be repeated, we need not address Lotus
argument that the violation was not willful.21 Lotus
also argues that it took corrective action prior to
the issuance of the NAL. We find this argument
unpersuasive. The Commission has stated in the past
that a downward adjustment for a forfeiture is not
warranted when the corrections were made only after
the Commission brought the violations to the
11. Lotus also argues that a forfeiture is unwarranted
because the duration of the outage was merely a small
percentage of the time that Lotus has owned the
antenna structure. The duration of Lotus' ownership
is immaterial given the duration of Lotus' violation.
Lotus does not deny that the duration of the
violations listed above was more than one day, and,
therefore, ``repeated'' according to the Act.23
Because the stated purpose of the Part 17 Rules is the
promotion of air safety, we find that long-time
ownership of an antenna structure does not mitigate
repeated violations of these important public safety
12. Finally, and most vigorously, Lotus argues that it has
a history of ``unblemished compliance'' with the
Commission's Rules, and that the issuance of a
forfeiture against a Commission licensee with a 42
year record of unblemished compliance would be against
public policy and serve no public purpose. We note
that Lotus does not have an unblemished record of
compliance with the Commission's Rules, including the
Commission's antenna structure Rules. According to
Commission records, on July 19, 2000, the Los Angeles
Office issued a Notice of Violation (``NOV'') to Lotus
concerning the antenna structure array that is the
subject of the instant NAL because of Lotus' failure
to post correct antenna structure registration numbers
at the site.24 Additionally, antenna structures and
radio stations owned by Lotus or its associated
companies have been the subject of other NOV's
concerning the Commission's antenna structure and
emergency alert system (``EAS'') Rules. Because Lotus
does not have a history of overall compliance with the
Communications Act and the Commission's Rules, we find
Lotus' public policy argument meritless.
13. We have examined Lotus' response to the NAL pursuant
to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement. As a result of
our review, we conclude 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. Considering the
entire record and the factors listed above, we find
that neither reduction nor cancellation of the
proposed $10,000 forfeiture is warranted.
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended
(``Act''), and Sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's Rules, Lotus Communications
Corporation IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $10,000 for repeatedly violating Section
303(q) of the Act, and Sections 17.21(a), 17.47, 17.48
and 17.49 of the Rules. 25
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.26
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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by
overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may
be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106. 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. 20554.27
16. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class Mail and Certified Mail Return
Receipt Requested to Lotus Communications Corporation,
3301 Barham Blvd., Suite 200, Los Angeles, California
90068 and to Lotus Communications Corporation DBA =
KWKW, 6290 Sunset Blvd., Suite 1600, Los Angeles,
California 90028, and Jerome S. Boros, Esquire, Bryan
Cave, LLP, 1290 Avenue of the Americas, New York, NY
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
147 U.S.C. § 303(q).
247 C.F.R. §§ 17.21(a), 17.47, 17.48 and 17.49.
3This 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.
4FCC Forms 715/715A Paragraphs 1, 3, 12, 21.
5FCC Forms 715/715A, Paragraph 3.
6FCC Forms 715/715A, Paragraph 12.
7The 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.
8After 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.
9Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432900008 (Enf. Bur., Western Region, Los Angeles Office,
released September 29, 2004).
1047 U.S.C. § 503(b).
1147 C.F.R. § 1.80.
1247 U.S.C. § 503(b)(2)(D).
1347 U.S.C. § 303(q).
1447 C.F.R. § 17.1(a).
1547 C.F.R. § § 17.7(a).
1647 C.F.R. § 17.21(a). See Max Media of Montana, LLC, 18 FCC
Rcd 21375 (2003).
1747 C.F.R. § 17.47(a)(1).
1847 C.F.R. § 17.47(a)(2).
1947 C.F.R. § 17.49.
20Lotus argues that contrary to the suggestion in the NAL, Lotus'
remote light indicator was fully operational when the events
described in the NAL occurred. The non-functioning piece of
equipment was a ``remote automatic alarm system'' which Lotus had
installed to back up nightly inspections by KWKW station
personnel of the remote light indicator.
21See Section 503(b)(1) of the Act, 47 U.S.C. § 503(b)(1)
(violator liable for forfeiture if violation is willful or
22AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21875-76 (2002).
2347 U.S.C. § 312(f)(2).
24See Section 17.4(g) of the Rules, 47 C.F.R. § 17.4(g).
2547 U.S.C. § 303(q), 503(b), 47 C.F.R. §§ 0.111, 0.311,
1.80(f)(4), 17.21(a), 17.47, 17.48, and 17.49.
2647 U.S.C. § 504(a).
27See 47 C.F.R. § 1.1914.