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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                    )                                
                                                                     
                                    )                                
     In the Matter of                                                
                                    )                                
     Hawaiian Telcom, Inc.               File Number: EB-09-HL-0094  
                                    )                                
     Antenna Structure Registrant       NAL/Acct. No.: 200932860003  
                                    )                                
     Kamuela, Hawaii                                FRN: 0001520980  
                                    )                                
     ASR No. 1002607                                                 
                                    )                                
                                                                     
                                    )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                Released: September  28, 2009

   By the Resident Agent, Honolulu Office, Western Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Hawaiian Telcom, Inc. ("Hawaiian Telcom), registrant of antenna
       structure #1002607 near Kamuela, Hawaii, apparently repeatedly
       violated Section 303(q) of the Communications Act of 1934, as amended,
       ("Act"), and Section 17.51(a)  of the Commission's Rules ("Rules") by
       failing to exhibit the structure's red obstruction lighting from
       sunset to sunrise; by failing to maintain the antenna structure
       painting and lighting in accordance with their Antenna Structure
       Registration ("ASR"), a violation of Section 17.6(a) of the Rules; and
       by failing to monitor the antenna structure's lights, using a properly
       maintained indicator to register any failure of such lights, a
       violation of Section 17.47(a) of the Rules. Hawaiian Telcom's failure
       to make the required observations of the lighting on the antenna
       structure resulted in its failure to notify the nearest Flight Service
       Station of the Federal Aviation Administration ("FAA") of the outage
       of the flashing obstruction light, 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 Hawaiian Telcom is apparently
       liable for forfeiture in the amount of ten thousand dollars ($10,000).

   II. BACKGROUND

    2. Antenna structure #1002607 is an antenna tower of 47 meters
       (approximately 154 feet) in height above ground. The registered owner
       is Hawaiian Telcom. According to the antenna structure registration
       ("ASR") for antenna structure #1002607, the structure is required to
       be painted and lit in accordance with specific Chapters of the FAA
       Advisory Circular for Obstruction Marking and Lighting. Specifically,
       the structure is required to be painted and have, at its top, a
       flashing red obstruction beacon, along with steady burning red side
       obstruction lights at the mid-point of its overall height.

    3. On June 25, 2009, the Enforcement Bureau's Honolulu Resident Agent
       Office received a complaint that the antenna structure at the Hawaiian
       Telecom station/tower in Kamuela, Hawaii, located next to Highway 19
       had been unlit for over a month. The Honolulu agent performed a search
       of the FCC databases for a tower in Kamuela, Hawaii, that was
       associated with Hawaiian Telcom and found an ASR record of #1002607
       registered to Hawaiian Telcom. The Honolulu agent contacted the
       Federal Aviation Administration ("FAA") Flight Service Station ("FSS")
       to determine if the tower light outage had been reported. The FAA
       informed the Honolulu agent that no prior light outage report had been
       made for antenna structure #1002607. The Honolulu agent then contacted
       Hawaiian Telcom to request they investigate the tower light status of
       antenna structure in Kamuela, Hawaii.

    4. On June 26, 2009, the Honolulu agent received an email from Hawaiian
       Telcom advising that they confirmed that the Hawaiian Telcom tower,
       antenna structure #1002607, in Kamuela, Hawaii was unlit, and stated
       that they had scheduled a contractor to replace the bulb the following
       week. Hawaiian Telcom acknowledged that they were unaware of the both
       the tower light outage and the requirements to file a NOTAM with the
       FAA FSS. The Honolulu agent informed Hawaiian Telcom that they were
       required to contact the FAA FSS to generate a NOTAM for the unlit
       structure. According to the FAA FSS log, a NOTAM was initiated by
       Hawaiian Telcom on June 26, 2009 at approximately 1:57pm HST.

    5. On June 29, 2009 the Honolulu agent contacted the Waimea Police
       Department, Waimea, Hawaii, and asked that they dispatch an officer
       during nighttime hours to observe antenna structure #1002607. The
       agent received a phone call from the Waimea Police Department at 9:15
       p.m. HST that evening confirming that the structure was unlit.

    6. On July 1, 2009 a  Honolulu agent inspected antenna structure
       #1002607. The agent observed, at approximately 7:05 p.m.  HST and
       until about 7:30 p.m. HST, that the nighttime red obstruction top
       beacon light for antenna structure #1002607 was  lit, but not flashing
       as required.  The agent also noted that there were no side obstruction
       lights on the tower, and that the structure painting was severely
       cracked, chipped, and faded. The agent contacted Hawaiian Telcom on
       July 2, 2009, requesting the logs concerning the light outage on
       antenna structure #1002607.

    7. On July 27, 2009, Hawaiian Telcom eventually provided a single written
       record, which showed only that the top beacon was inoperative and then
       restored to service on June 30, 2009, the day of repair. Hawaiian
       Telcom acknowledged that the "[t]he site alarms for the beacon failure
       were not received for this specific event.  In speaking to our . . .
       administrator, there have been some intermittent trap queue problems
       that may have contributed to the alarms not being received."  

   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 17.51(a) of the Rules states that all red
       obstruction lighting shall be exhibited from sunset to sunrise unless
       otherwise specified. The FAA Advisory Circular chapters for antenna
       structure #1002607 require that the structure be painted and have, at
       its top, a flashing red beacon, along with mid-point steady burning
       red side obstruction lights. Section 17.6(a) of the Rules requires
       that the antenna structure owner maintain the painting and lighting in
       accordance with the specifications set forth in the ASR. Section
       17.47(a) of the Rules 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 that registered antenna
       structures that have been assigned lighting specifications shall
       report immediately by telephone or telegraph to the FSS or FAA any
       observed or otherwise known extinguishment of any flashing obstruction
       light not corrected within 30 minutes.

   10. On June 25, 2009, the Enforcement Bureau's Honolulu Resident Agent
       Office received a complaint that antenna structure #1002607 located
       near Kamuela, Hawaii had been unlit for over a month. A Honolulu agent
       contacted the FAA Flight Service Station and found that Hawaiian
       Telcom had not reported the outage, and then contacted Hawaiian Telcom
       to request that they investigate the tower light status of antenna
       structure #1002607. On June 26, 2009, Hawaii Telcom confirmed to the
       Honolulu agent that antenna structure #1002607 was unlit. At that
       time, Hawaiian Telcom was not aware of the tower light outage, or of
       the need to issue a NOTAM. On June 29, 2009, a Waimea Police Officer
       observed that the top red beacon on antenna structure #1002607 was not
       functioning. On July 1, 2009, at approximately 7:05 p.m., and until
       approximately 7:30 p.m., a Honolulu agent observed that the top red
       obstruction light on antenna structure #1002607 was lit, but not
       flashing, as required. The agent also confirmed that the ASR Number
       was not displayed, and that the structure did not have the two
       required steady burning red obstruction lights installed at the tower
       midpoint. In response to a request from the Honolulu agents, Hawaiian
       Telcom was only able to produce one day of logs concerning the light
       outage on antenna structure #1002607, and acknowledged that the site
       alarms for the failure of the beacon on antenna structure #1002607 had
       not been received.

   11. Hawaiian Telcom's failure to properly observe and maintain an
       indicator designed to register any lighting failure resulted in
       Hawaiian Telcom's failure to monitor the lights on antenna structure
       #1002607. This failure to monitor resulted in Hawaiian Telcom's
       failure to notify the FAA Flight Service Station of the outage of the
       flashing obstruction light, which is required to be exhibited from
       sunset to sunrise. Based on the evidence before us, we find that
       Hawaiian Telcom apparently repeatedly violated Section 303(q) of the
       Act, and Sections 17.51(a), 17.47(a), 17.6(a) and 17.48 of the Rules,
       by failing to maintain the required red obstruction lighting on
       antenna structure #1002607; by failing to monitor the antenna
       structure's lights, using a properly maintained indicator designed to
       register any lighting failure; by failing to maintain the structure
       painting and lighting in accordance with the ASR specifications, and
       by failing to report the extinguishment of the top flashing red beacon
       on antenna structure #1002607.

   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 comply with the prescribed
       lighting and/or marking for an antenna structure is $10,000. In
       assessing the monetary forfeiture amount, we must also take into
       account the statutory factors set forth in Section 503(b)(2)(E) 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 Hawaiian Telcom is apparently liable for a
       $10,000 forfeiture.

   IV. ORDERING CLAUSE

   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, Hawaiian Telcom, Inc. 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 17.6(a), 17.47(a), 17.48 and 17.51(a) 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, Hawaiian Telcom, Inc., 
       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/Account Number and FRN Number referenced
       above. Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
       Payment by overnight mail may be sent to U.S. Bank - Government
       Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
       63101. Payment by wire transfer may be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and account number 27000001. For payment by
       credit card, an FCC Form 159 (Remittance Advice) must be submitted.
        When completing the FCC Form 159, enter the NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to:  Chief Financial Officer --
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C.  20554.    Please contact the Financial Operations Group Help
       Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
       questions regarding payment procedures.  Hawaiian Telcom, Inc., shall
       also send electronic notification on the date said payment is made to
       WR-Response@fcc.gov.

   16. The response, if any, must be mailed to Federal Communications
       Commission, Enforcement Bureau, Western Region, Honolulu Resident
       Agent Office, P.O. Box 971030, Waipahu, Hawaii 96797-1030 and must
       include the NAL/Acct. No. referenced in the caption. An electronic
       copy shall be sent to WR-Response@fcc.gov.

   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. 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 Hawaiian Telcom, Inc., Attention To:
       HIA5, P.O. Box 2200, Honolulu, Hawaii 96841.

   FEDERAL COMMUNICATIONS COMMISSION

   John R. Raymond

   Resident Agent

   Honolulu Resident Agent Office

   Western Region

   Enforcement Bureau

   "Kamuela" and "Waimea" refer to the same geographic location, and are used
   interchangeably.

   47 U.S.C. S: 303(q).

   47 C.F.R. S: 17.51(a).

   47 C.F.R. S: 17.6(a).

   47 C.F.R. S: 17.47(a).

   47 C.F.R. S: 17.48.

   47 U.S.C. S: 503(b).

   See FAA Circular Number 70/7460-1G, Chapters 3, 4, 5 and 9.

   FAA Circular Number 70/7460-1J, Appendix 1, Figure 11.

   According to the U.S. Naval Observatory, sunset occurred at 7:06 p.m. HST
   on July 1, 2009, in the Waimea/Kamuela area.

   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: 17.51(a).

   FAA Circular Number 70/7460-1G, Chapters 3, 4, 5 and 9, Appendix 2, Figure
   1.

   47 C.F.R. S: 17.47(a).

   47 C.F.R. S: 17.48.

   FAA Circular Number 70/7460-1G, Chapters 3, 4, 5 and 9, Appendix 2, Figure
   1.

   12 12 FCC Rcd 17087(1997), recon. denied 15 FCC Rcd 303 (1999).

   13 47 U.S.C. S: 503(b)(2)(E).

   14 47 U.S.C. S:S: 303(q), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80, 17.6,
   17.47(a), 17.48, 17.51(a).

   See 47 C.F.R. S: 1.1914.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

                                       5

   Federal Communications Commission