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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
ASR # 1015922                    )                 FRN 0001529171
Los Angeles, California          )


                        FORFEITURE ORDER

Adopted: June 27, 2005                                      
Released: June 30, 2005 

By the Regional Director, Western Region, 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 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.

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 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 # 
          1015922.8

     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.

     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.''

III.  DISCUSSION

     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 
          violator's attention.22 

     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 
          rules.

     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 bycheck or money order may be mailed 
          to Federal Communications Commission, P.O. 
          Box358340,Pittsburgh, PA 15251-8340. Payment by 
          overnight mail may be sent toMellon 
          Bank/LB358340,500 Ross Street, Room 1540670, 
          Pittsburgh, PA 15251. Payment by wire transfer may 
          be made to ABA Number043000261, receiving bankMellon 
          Bank, and account number911-6106.  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 
          10104.

                         FEDERAL COMMUNICATIONS COMMISSION



                         Rebecca L. Dorch
                         Regional Director, Western Region
                         Enforcement Bureau
_________________________

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 
repeated).  

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.