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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Numbers: EB-07-LA-054
Alfred Plascencia )
EB-07-LA-055
Lazer Broadcasting Corporation )
EB-07-LA-056
Antenna Structure Registrant )
NAL/Acct. No.: 200732900012
ASR Nos. 1062806, 1062807, 1062808 )
FRN: 0016142101
Oxnard, California )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 19, 2007
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 Alfred Plascencia, the president and sole owner of Lazer
Broadcasting Corporation ("Lazer"), and registrant of antenna
structures 1062806, 1062807, and 1062808, in Oxnard, California,
apparently repeatedly violated Section 303(q) of the Communications
Act of 1934, as amended ("Act"), by failing to make observation of the
antenna structure's 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, a violation of Section 17.47(a)
of the Commission's Rules ("Rules"); and by failing to immediately
notify the Commission of change in ownership information, a violation
of Section 17.57 of the Rules. Plascencia's failure to make the
required observations of the lighting on antenna structure #1062806
resulted in its failure to notify the nearest Flight Service Station
of the Federal Aviation Administration ("FAA") of the outage, a
violation of Section 17.48 of the Rules. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Plascencia is apparently liable for a forfeiture in the amount of
five thousand dollars ($5,000).
II. BACKGROUND
2. Antenna structures 1062806, 1062807, and 1062808 comprise the
three-tower array used by KOXR(AM) to serve Oxnard, California. Lazer
Broadcasting Corporation, is the licensee of KOXR(AM). Antenna
structure #1062808, tower three of the three-tower array, is an
antenna tower of 75.6 meters (248.22 feet) in height above ground.
According to the antenna structure registration ("ASR") for antenna
structure #1062808, the structure is required to have painting and
lighting in accordance with specific paragraphs of the Commission's
"Obstruction Marking and Lighting Specifications for Antenna
Structures - FCC Form 715" ("FCC Form 715). Specifically, the
structure is required to be painted, and have, at its top, a flashing
beacon equipped with two lamps and red filters, along with at least
two lamps enclosed in red obstruction light globes located
approximately mid point of the overall height of the tower. The lights
on antenna structure #1062808 are required to burn continuously or be
controlled by a light sensitive device.
3. On February 12, 2007, an agent from the Enforcement Bureau's Los
Angeles Office conducted an inspection of antennas structures 1062806,
1062807, and 1062808. At 6:30 p.m., the agent observed that the top
beacon light on antenna structure #1062808 was not functioning.
4. On February 13, 2007, the agent reported tower light outage for
antenna structure #1062808 to nearest Flight Service Station ("FSS").
A staffer at the FSS stated to the Los Angeles agent that the FSS had
not received a report of a tower light outage for antenna structure
#1062808. The agent asked the FSS to issue a NOTAM for the light
outage. The agent also notified station KOXR(AM) of the antenna light
outage. The KOXR(AM) station engineer told the agent that the radio
station was unaware of the tower light outage, that the nearest FSS
had not been notified, that the station did not visually observe the
lights once every 24 hours, and that the station did not maintain an
antenna lighting log. Later on February 13, 2007, a KOXR(AM) station
staffer contacted the Los Angeles agent and stated that the light
outage problem had been corrected. The staffer also stated that
"beginning this date . . . Lazer will have nightly inspections of the
tower lighting operation . . . ."
5. On February 14, 2007, the Los Angeles agent conducted a follow-up
inspection of the tower lights on antenna structures 1062806, 1062807,
and 1062808 and observed that the lights were functioning properly.
6. At the time of the February 12, 2007 inspection, the Commission's
antenna structure database listed Lotus Oxnard Corporation as the
registrant of antennas structures 1062806, 1062807, and 1062808. When
questioned about the ownership of the antenna structures, a Lazer
representative acknowledged to the Los Angeles agent that Plascencia
purchased antennas structures 1062806, 1062807, and 1062808 on January
16, 2003, and inadvertently neglected to notify the Commission of the
change in ownership to Plascencia.
7. On February 26, 2007, Plascencia, notified the Commission of the
change in ownership information for antennas structures 1062806,
1062807, and 1062808. The antenna structure registrations for all
three towers now list Plascencia as the registrant.
III. DISCUSSION
8. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
9. 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. Section 17.47(a) requires that the owner of any
antenna structure which is registered with the Commission and has been
assigned lighting specifications shall make an observation of the
antenna structure's lights at least once each 24 hours either visually
or by observing an automatic properly maintained indicator designed to
register any failure. Section 17.48 of the Rules requires the owner
of an antenna structure to report immediately by telephone or
telegraph to the nearest Flight Service Station or office of the FAA
any observed or otherwise known extinguishment or improper functioning
or any top steady burning light or any flashing obstruction light,
regardless of its position on the antenna structure, not corrected
within 30 minutes. On February 12, 2007, a Los Angeles agent observed
that the top on antenna structure #1062808 was not functioning. The
local FAA FSS confirmed that a NOTAM had not been issued for the
outage. When questioned by the Los Angeles agent, representatives of
Lazer and Plascencia, the owner of antenna structure #1062808,
indicated that they were unaware of the outage and confirmed to the
Los Angeles agent that nightly inspections of the tower light would
begin on February 13, 2007.
10. Plascencia's failure to monitor the lighting on its antenna structures
occurred on more than one day, therefore, it is repeated. Based on the
evidence before us, we find that Plascencia apparently repeatedly
violated Section 17.47(a) of the Rules by failing to monitor the
lighting on antenna structures 1062806, 1062807, and 1062808 once
every 24 hours either visually or by a properly maintained automatic
indicator.
11. Section 17.57 of the Rules requires the owner of an antenna structure
to immediately notify the Commission, using FCC Form 854, upon any
change in structure height or change in ownership information. We
require antenna structure owners to maintain current antenna structure
registration information with the Commission and post ASR numbers at
the base of antenna structures to allow for easy contact if problems
arise. Lazer personnel acknowledged to the Los Angeles agent that
Plascencia purchased antenna structures 1062806, 1062807, and 1062808
in 2003, but had failed to notify the Commission of the change in
ownership of the antenna structures to Plascencia. The violation
occurred on more than one day, therefore, it is repeated. Based on the
evidence before us, we find that Plascencia repeatedly violated
Section 17.57 of the Rules by failing to immediately notify the
Commission of a change in ownership information for antenna structures
1062806, 1062807, and 1062808.
12. 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 conduct required monitoring is
$2,000 and the base forfeiture amount for failure to file required
forms or information with the Commission 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
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 to the instant
case, we conclude that Lazer is apparently liable for a $5,000
forfeiture.
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,
0.314 and 1.80 of the Commission's Rules, Alfred Plascencia is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
five thousand dollars ($5,000) for violations of Sections 17.47(a) and
17.57 of the Rules.
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 for Forfeiture, Alfred Plascencia 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 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.
16. 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.
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 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. 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 Alfred Plascencia.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 C.F.R. S 17.47(a).
47 C.F.R. S 17.57.
47 C.F.R. S 17.48.
47 U.S.C. S 503(b).
FCC Form 715, Paragraphs 1, 3, 11, and 21.
FCC Form, Paragraph 1.
FCC Form 715, Paragraph 3.
FCC Form 715, Paragraph 11.
FCC Form 715, Paragraph 21.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
47 U.S.C. S 303(q).
47 C.F.R. S 17.47(a).
47 C.F.R. S 17.48.
47 C.F.R. S 17.57.
See, e.g., American Tower Corporation, 16 FCC Rcd 1282 (2001) ) (Notice of
Apparent Liability); American Tower Corporation, 16 FCC Rcd 14937 (2001)
(Consent Decree between the Commission and American Tower Corporation ).
.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(E).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 17.47(a),
17.57.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission