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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
El Dorado 900, LLC ) File Number: EB-02-LA-117
) NAL/Acct. No. 200232900004
Antenna Structure Registration ) FRN 0006-7923-03
Number 1041257 )
City of Industry, California )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 28, 2002
By the District Director, Los Angeles Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that El Dorado 900, LLC, (``El Dorado'') the
owner of Antenna Structure Registration # 1041257, in City of
Industry, California has apparently willfully violated Section
303(q) of the Communications Act of 1934, as amended (``Act''),1
and Sections 17.23, 17.47(a), 17.48(a), 17.56 and 17.57 of the
Commission's Rules2 by: (1) not maintaining required lighting on
the antenna structure; (2) not making an observation of the
antenna structures' lights at least once each 24 hours either
visually or by observing an automatic properly maintained
indicator designed to register any failure of such lights; (3)
failing to notify the FAA of 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; (4) not replacing or repairing lights as soon as
practicable; and (5) by failing to properly notify the FCC of a
change in ownership of the antenna structure. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended (``Act''),3 that El Dorado is apparently liable for a
forfeiture in the amount of fifteen thousand dollars ($15,000).
II. BACKGROUND
2. On March 14, 2002, the Los Angeles Office received a
referral from the FCC's Consumer Center regarding a complaint
that all of the lights on Antenna Structure Registration (ASR)
number 1041257 had been out for over a month. The complaint
indicated that the structure was located near Workman High School
in the City of Industry, California and that planes and police
helicopters frequently use the air space in the vicinity of the
tower.
3. According to FCC databases, ASR 1041257 is owned by
Robert Burdette and Associates, Inc., and must comply with
painting and red obstruction lighting specifications contained in
Chapters 3, 4, 5 and 13 of FAA Circular Number 70/7460-1J. The
structure is 75.3 meters above ground level, is located
approximately six miles from an airstrip, and serves as the N#1
antenna structure in a 2-tower AM array for station KALI.
4. An Agent in the Los Angeles Field Office attempted to
contact the registered tower owner but was unable to do so
because the telephone number had been disconnected and was no
longer in service. The Agent then reported the light outage
complaint directly to Multicultural Radio Broadcasting, Inc.,
licensee of station KALI-AM.
5. On the evening of March 14, 2002, Agents from the Los
Angeles Office conducted a visual inspection of the antenna
structure and confirmed that ASR # 1041257 was completely dark.
Specifically, the top mounted flashing red obstruction beacon and
the side mounted steady burning red lights were out. The Agents
reported the light outages to the FAA's Riverside Flight Service
Station and a 15-day NOTAM was issued. Personnel at the
Riverside Flight Service Station stated that there had been no
other light outage report made for ASR 1041257.
6. Subsequent investigation revealed that on or about
February 8, 1999, Robert Burdette and Associates, Inc., had
transferred ownership of the antenna structure to El Dorado 900,
LLC. FCC records do not reflect any notification of change in
ownership for ASR 1041257.
7. Further investigation and inspections by a Los Angeles
Agent on March 19 and March 20, 2002, revealed that an automated
log was generated at the transmitter site on a daily basis, but
no automated alarm system was installed for monitoring the tower
lights. The automated log reflected a continuous light outage
beginning on December 28, 2001 and remaining out on each
consecutive day through March 14, 2002, the last date reflected
on the log. An employee of El Dorado, who also was employed by
the licensee of KALI, stated he periodically retrieved the
automated station log report generated at the transmitter site,
and sent it via fax to the station's chief operator. The El
Dorado employee confirmed that the light indication reading on
the automated station log report reflected a tower light outage
on the N#1 antenna structure.
8. On April 16, 2002, the El Dorado employee notified the
FCC that the lights had been repaired on April 11, 2002. No
explanation was provided for why repair of the lights took a
month.
III. DISCUSSION
9. 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.4 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.5
10. The Commission's antenna structure construction,
marking and lighting requirements operate in concert with FAA
regulations to ensure that antenna structures do not present
hazards to air navigation. Generally, Sections 17.21 and 17.23
of the Rules require owners of antenna structures located close
to airports or that are greater than 200 feet in height to comply
with prescribed painting and lighting specifications designed to
ensure air safety. Because of the substantial public safety
issues involved, Section 17.47 of the Rules further requires
antenna structure owners to monitor lights daily or install
automatic alarm systems to ensure lights function properly.
Antenna structure owners are required to maintain lighting
equipment and replace or repair inoperative lights, indicators
and control and alarm systems as soon as practicable.
Additionally, Section 17.48(a) requires antenna structure owners
to immediately notify the FAA of 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 FAA then issues a Notice to Airmen (``NOTAM'') for
a period of 15 days advising aircraft that there is an antenna
structure at a specific location with a temporary light outage.
Section 17.56 required the replacement or repair of lights to be
accomplished as soon as practicable. Section 17.57 further
requires antenna structure owners to immediately notify the
Commission using FCC Form 854 upon any change in ownership
information to facilitate contact if problems arise.
11. El Dorado failed to detect a total light outage on a
75-meter tower near an airstrip for 77 days. El Dorado's failure
to update the ASR ownership report complicated efforts to notify
it of the serious potential hazard to air navigation posed by the
dark tower. Once notified of the light outage, El Dorado took
another month to repair or replace the extinquished lights.
Based on the evidence before us, we find that El Dorado willfully
and repeatedly violated Sections 17.23 and 17.56 by failing to
maintain proper lighting on ASR 1041257 and failing to repair or
replace the lights for over three months. We further find that
El Dorado willfully violated Sections 17.47(a), 17.48(a) and
17.57 of the Rules by not making an observation of the antenna
structures' lights at least once each 24 hours either visually or
by observing an automatic properly maintained indicator designed
to register any failure of such lights; by failing to report the
flashing obstruction lighting outage to the FAA, and by failing
to update the antenna tower registration to reflect the change in
ownership.
12. The base forfeiture amount set by 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 Rules6, for failure
to comply with prescribed lighting and/or marking is $10,000, for
failure to conduct required monitoring is $2,000, and for failure
to file required forms is $3,000. 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
includes the nature, circumstances, extent, and gravity of the
violation(s), 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. The automated log
reflects that the N#1 tower lights for Antenna Structure
Registration # 1041257 were out continuously beginning on
December 28, 2001, and remaining out for each consecutive day
through March 14, 2002. The lights remained out through April
11, 2002, when finally repaired. Further, an El Dorado employee
periodically picked up the automated log report at the
transmitter site but failed to take any corrective action in
order to bring the antenna tower into compliance with the
prescribed lighting or to notify the FAA. These rule violations
are grave and posed a potential danger to air traffic safety.
Applying the Forfeiture Policy Statement and the statutory
factors to the instant case, an $15,000 forfeiture is warranted.
IV. ORDERING CLAUSES
13. 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, El
Dorado 900, LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR
A FORFEITURE in the amount of fifteen thousand dollars ($15,000)
for violations of Sections 17.21, 17.23, 17.47(a), 17.48(a),
17.56 and 17.57 of the Rules.7
14. 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, El Dorado 900, LLC SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
15. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200232900004 and FRN # 0006-7923-03.
16. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200232900004.
17. 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.
18. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.8
19. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 2510 0001 9914
6132, Return Receipt Requested, to El Dorado 900, LLC at 1980
Post Oak Boulevard, Suite 1500, Houston, TX. 77056.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director, Los Angeles
Office
_________________________
1 47 U.S.C. § 303(q) (Antenna structure owners shall maintain the
painting and lighting of antenna structures as prescribed by the
Commission).
2 47 C.F.R. §§ 17.23, 17.47(a), 17.48(a), 17.56 and 17.57.
3 47 U.S.C. § 503(b).
4 Section 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 provisions of
this Act....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
5 Section 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.''
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
7 47 U.S.C. § 503(b); 47 C.F.R §§ 0.111, 0.311, 1.80, 17.21,
17.23, 17.47, 17.48(a), 17.56 and 17.57.
8 See 47 C.F.R. C.F.R. § 1.1914.