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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
El Dorado 900, LLC ) File Numbers: EB-05-LA-224
)
) NAL/Acct. No. 200632900008
Owner of Antenna Structures ) FRN 0006792303
1041256 and 1041257 )
City of Industry, California )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February
9, 2006
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 El Dorado 900, LLC ("El
Dorado"), owner of antenna structures #1041256 and #1041257
in the City of Industry, California, apparently willfully
and repeatedly violated Section 303(q) of the Communications
Act of 1934, as amended, ("the Act"),1 and Sections 17.23,
17.47, 17.48 and 17.57 of the Commission's Rules ("Rules")2
by failing to comply with the antenna lighting, monitoring,
notification and registration requirements specified for
antenna structure #1041257 and for failing to comply with
the Commission's registration requirements for antenna
structure #1041256. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended ("Act"),3 that
El Dorado 900, LLC is apparently liable for a forfeiture in
the amount of thirteen thousand dollars ($13,000).
II. BACKGROUND
2. Antenna structure #1041257 and antenna structure
#1041256 comprise the two-tower AM array located at located
at 751 Echelon Avenue, City of Industry, California and
utilized by station KALI (AM). According to antenna
structure #1041257's4 antenna structure registration, the
structure is required to have ``Obstruction Marking and
Lighting'' in accordance with the applicable paragraphs of
the Federal Aviation Administration (``FAA'') Circular
Number 70/7460-1J. Specifically, the structure is required
to be painted and have obstruction lighting consisting of at
least one flashing red beacon on top and two or more steady-
burning sidelights on opposite sides at the midpoint.5
3. Robert Burdette and Associates, Inc., is the
registered owner of antenna structures #1041256 and
#1041257. However, El Dorado has acknowledged that the
ownership of the towers was transferred to their
organization sometime in 1999. In a 2002 investigation, the
Los Angeles Office found that El Dorado did not maintain the
required lighting on the structure; did not make the
required observations of the lighting or of a properly
maintained indicator to register failure of the lighting;
did not notify the FAA of any observed or otherwise known
lighting outage; and did not notify the Commission of a
change in ownership of the antenna structure. El Dorado was
notified of these findings on June 28, 2002.6
4. On June 6, 2005, the Los Angeles Office received a
complaint that the top mounted flashing red beacon and
intermediate level steady burning side lights were not
functioning on antenna structure #1041257. Later that day,
a Los Angeles agent conducted an inspection of antenna
structure #1041257, and found no lights illuminated on that
structure. The agent reported the outage to the FAA's
Riverside Flight Service Station (``FSS''). The FSS issued
a 15 day Notice to Airmen (``NOTAM'') and informed the Los
Angeles agent that no prior light outage report had been
made for antenna structure #1041257.
5. On June 7, 2005, the agent reviewed the antenna
structure registrations for antenna structures #1041256 and
#1041257 and found that both structures continued to be
registered to Robert Burdette and Associates. Later that
day, the agent contacted MultiCultural Broadcasting, Inc.
(``MultiCultural''), licensee of KALI(AM), a tenant on
antenna structures #1041256 and #1041257, and informed
MultiCultural of the light outage.
6. On June 15, 2005, MultiCultural responded to the
agent stating that they had contacted an engineer for El
Dorado, who stated that he was aware of the outage.
MultiCultural also informed the agent that the damage
appeared to have been caused by vandalism and that a remote
monitoring system had been designed but not yet installed
for the structure.
7. On August 18, 2005, a Los Angeles agent reviewed
the automated antenna light logs for antenna structure
#1041257. The logs reflected a continuous light outage on
antenna structure #1041257 beginning on May 24, 2005,
continuing through June 8, 2005. According to the logs, the
antenna structure lights were brought back to service on
June 9, 2005.
8. On December 15, 2005, Los Angeles staff reviewed
the Commission's antenna structure registration database and
found that antenna structures #1041256 and #1041257
continued to be registered to Robert Burdette and
Associates. No updated information had been filed
reflecting a change in ownership of the structures.
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.7 The term "repeated" means the
commission or omission of such act more than once or for
more than one day.8
10. 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.9 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."10 Section 17.23 of the rules requires that
registered antenna structures conform to the mandatory FAA
painting and lighting recommendations set forth on the FAA
Notice issued to the structure owner.11 Antenna structure
# 1041257 is 75.3 meters in height and is assigned FAA
lighting specifications requiring that the structure have at
least one flashing red beacon mounted at the top of the
antenna tower and two or more steady-burning sidelights on
opposite sides of the midpoint. 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.12 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.13
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.14
11. On June 6, 2005, in response to a complaint, a Los
Angeles agent inspected antenna structure #1041257 and
observed that its lights were not functioning. The antenna
tower was completely dark. The agent notified the FAA and a
NOTAM was issued. According to the antenna structure's
automated logs, the lights were out for a total of 16 days.
Although an engineer for El Dorado appeared to be aware of
the outage, no report was filed with the FAA FSS. The El
Dorado engineer acknowledged that no automatic monitoring
system was in place, and there is no evidence that daily
observations were made of the structure. If such
observations were made, there is no evidence El Dorado filed
NOTAM reports with the FAA FSS to ensure the safety of the
public. Finally, El Dorado continues to acknowledge
ownership of antenna structures #1041256 and #1041257, but
also continues to fail to update the ownership information
with the Commission, forcing the Los Angeles agents to
contact tenants on the structures to investigate light
outages.
12. Prior to the light outage that was investigated by
the Los Angeles agent on June 6, 2005, El Dorado was aware
of the Commission's lighting, monitoring, notification and
registration requirements. Therefore, El Dorado's
violations were willful. The violations occurred for more
than one day, therefore, they were repeated. Based on the
evidence before us, we find that El Dorado 900, LLC,
apparently willfully and repeatedly violated Section 303(q)
of the Act and Sections 17.23, 17.47, 17.48 and 17.57 of the
Rules by failing to comply with the antenna lighting,
monitoring, notification and registration requirements
specified for antenna structure #1041257, and for failing to
comply with the registration requirements for antenna
structure #1041256.
13. 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"),16 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.
The base forfeiture amount for failing 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,17 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.
Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors, a $13,000 forfeiture is warranted.
III. ORDERING CLAUSE
14. 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
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
thirteen thousand dollars ($13,000) for violations of
Section 303(q) of the Act, and Sections 17.23, 17.47, 17.48,
and 17.57 of the Rules.18
15. 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, 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.
16. 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.
17. 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.
18. 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.
19. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Associate Managing
Director - Financial Operations, Room 1A625, 445 12th Street,
S.W., Washington, D.C. 20554.19
20. 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
El Dorado 900, LLC, 9426 Old Katy Road, Bldg. 10, Houston,
Texas 77055.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
_________________________
1 47 U.S.C. § 303(q).
2 47 C.F.R. §§ 17.23, 17.47, 17.48 & 17.57.
3 47 U.S.C. § 503(b).
4 This antenna structure is designated as tower one (TWR1) of a
two-tower transmitting array. The other tower included in this
array is ASR #1041256.
5 See FAA Circular Number 70/7460-1J, Chapters 3, 4, 5, 13.
6 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232900004 (Enf. Bur., Western Region, Los Angeles Office,
released June 28, 2002). El Dorado paid the forfeiture amount in
that case. See 47 U.S.C. 504(c). Pursuant to 47 U.S.C.
§503(b)(6), we may only propose forfeitures to non-licensees for
apparent violations that occurred within one year of the date of
this NAL. However, Section 503(b) does not bar us from assessing
whether El Dorado's conduct prior to that time period apparently
violated the Act in determining the appropriate forfeiture amount
for violations that occurred within the one-year statute of
limitations. Inphonic, Inc., 2005 WL 1750418 (FCC 05-145,
released July 25, 2005) at ¶ 24.
7 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 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).
8 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."
9 47 U.S.C. § 303(q).
10 47 C.F.R. § 17.1(a).
11 47 C.F.R. § 17.23.
12 47 C.F.R. § 17.47.
13 47 C.F.R. § 17.48.
14 47 C.F.R. § 17.57.
1612 FCC Rcd 17087(1997), Recon. Denied 15 FCC Rcd 303 (1999).
1747 U.S.C. § 503(b)(2)(D).
18 47 U.S.C. §§ 303(q), 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80,
17.23, 17.47, 17.48 and 17.57.
19 See 47 C.F.R. § 1.1914.