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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.