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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
ASR # 1015922 ) FRN: 0001529171
Los Angeles, California )
)
MEMORANDUM OPINION AND ORDER
Adopted: August 25, 2006 Released: August 29, 2006
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order"), we dismiss as untimely
the Petition for Reconsideration ("Petition") filed on August 30,
2005, by Lotus Communications Corporation ("Lotus") registrant of
antenna structure # 1015922, in Los Angeles, California. Lotus seeks
reconsideration of the Forfeiture Order in which Lotus was found
liable for a monetary forfeiture in the amount of $10,000 for repeated
violations of Section 303(q) of the Communications Act of 1934, as
amended, ("the Act"), and Sections 17.21(a), 17.47, 17.48 and 17.49
of the Commission's Rules ("Rules"). As discussed below, we dismiss
Lotus' Petition because it does not comply with the Act and the Rules,
and is therefore procedurally defective. We also find that even if
Lotus had timely filed its Petition, the Petition would fail on the
merits.
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 Los Angeles Office inspected antenna
structure # 1015922, located at 4557 Martin Luther King Boulevard, Los
Angeles, California. 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. Specifically, the
structure is required to have a flashing red beacon mounted on the top
of the antenna structure. 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. The lights on the
structure are required to burn continuously or be controlled by a
light sensitive device. 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.
3. On March 24, 2004, a field agent from the Los Angeles Office notified
the Senior Vice President of Lotus that not all of the lights on antenna
structure # 1015922 were functioning. 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. In
its response to the NAL, Lotus acknowledged omissions by station personnel
"derailed the system" and explained the difficulties it encountered
contracting for a crew to repair the lights, after it had been notified of
the light outage by the Los Angeles agent.
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.
5. On September 29, 2004, the Los Angeles Office issued a NAL in the
amount of $10,000 to Lotus. After being granted an extension, Lotus filed
a response to the NAL on November 23, 2004 ("Response"). Lotus responded
to the NAL, arguing that its violation was not willful, that the duration
of the light outage was a small percentage of the time that Lotus had
owned the antenna structure, and that it had a history of "unblemished
compliance" with the Rules and that the issuance of a forfeiture against a
licensee with such a history was against public policy. In the Forfeiture
Order, the Western Region, Enforcement Bureau, found that the Los Angeles
Office had determined that Lotus' violation was repeated, but not willful.
The Western Region also found that the duration of the outage measured
against the length of time Lotus owned the structure was immaterial, and
that Lotus did not deny that the outage lasted for more than one day and
was, therefore, repeated, pursuant to Section 312(f)(2) of the Act.
Finally, the Western Region found that Lotus in fact did not have a
history of overall compliance with the Rules because Lotus had previously
been the subject of multiple Notices of Violation ("NOV's") including one
concerning the antenna structure array which was the subject of the NAL.
Consequently, the Western Region issued the subject Forfeiture Order on
June 30, 2005, imposing a $10,000 forfeiture for Lotus' violation of
Section 303(q) of the Act and Sections 17.21(a), 17.47, 17.48 and 17.49
of the Rules. On August 30, 2005, Lotus filed its Petition along with a
Petition for Acceptance of Petition for Reconsideration. Lotus argues that
its Petition should be accepted because of the "protracted, incapacitating
illness" of Lotus' counsel, who was the only lawyer available in the law
firm representing Lotus with a sufficient background to prepare the
Petition. Lotus argues that if the Commission does not grant its request
to accept the late-filed petition, it should accept the Petition as an
Application for Review of the Forfeiture Order. In the Petition, Lotus
acknowledges the light outage that was the basis of the Forfeiture Order,
but argues that the Forfeiture Order should be set aside because Lotus did
not repeatedly violate the Rules, and that Lotus has an overall record of
compliance with the Rules.
III. DISCUSSION
6. Section 405(a) of the Act and Section 1.106(f) of the Rules provide
that a petition for reconsideration be filed within thirty days from the
date of public notice of the final action. In this case, public notice of
the Forfeiture Order occurred on June 30, 2005, upon its release. The
thirtieth day after June 30, 2005, was July 30, 2005, a Saturday. When
the computation of the filing date indicates that a document is due to be
filed on a Saturday, the document is due on the next business day. Thus to
have been timely, any request for reconsideration was due to be filed with
the Commission no later than August 1, 2005. Lotus' submission was filed
August 30, 2005. While Lotus argues that the Commission, "from time to
time, has found that exigent circumstances permit out-of-time filings," it
provides no caselaw to support its claim. Accordingly, we find that Lotus
did not timely file its petition for reconsideration and that dismissal is
warranted.
7. We further find that even if Lotus had timely filed its petition, the
Petition would fail on the merits. Lotus first contends that it did not
commit repeated error, but that only a "single oversight occurred, which
persisted for a number of days despite strenuous remedial efforts" by
Lotus. Section 312(f)(2) of the Act, which 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." In the Forfeiture Order, the Western Region correctly found that
Lotus' repeatedly failed to comply with Section 303(q) of the Act, and the
relevant Part 17 Rules. Specifically, the lights on antenna structure #
1015922 were extinguished from at least March 22, 2004, through April 2,
2004, in violation of Section 17.21(a) of the Rules.
8. The Commission's Part 17 Rules are important public safety mandates
which require diligence on the part of antenna structure owners to ensure
that antenna structures do not become a "menace to air navigation."
Despite Lotus' insistence that it is being punished for a "single
oversight," the record shows that for at least three days, from March 22,
2004 to March 24, 2004, when Lotus was told of the outage by a Los Angeles
agent, Lotus failed to even notice that its antenna structure's top beacon
and three intermediate level side lights were not functioning. In
addition, the Los Angeles agent contacted the local FAA Flight Service
Station ("FSS"), and found that Lotus had not notified the FAA FSS of the
outage, in violation of Section 17.48 of the Rules. A Lotus executive
indicated to the Los Angeles agent that station personnel did not
routinely perform the required observations, and also indicated that the
remote automatic alarm system was no longer functioning, in violation of
Section 17.47 of the Rules. A review of the logs kept by KWKW(AM)
concerning antenna structure # 1015922 revealed no records indicated any
outages between March 22 and April 2, 2004, in violation of Section 17.49
of the Rules. All of these events occurred for more than one day and,
contrary to Lotus' assertion, amount to more than a single oversight.
9. The other argument proffered by Lotus was already considered by the
Western Region in the Forfeiture Order, namely, that Lotus has an overall
history of compliance with the Commission's Rules. As detailed in the
Forfeiture Order, on July 19, 2000, the Los Angeles Office issued an NOV
to Lotus concerning the antenna structure array that was the subject of
the NAL and Forfeiture Order because of Lotus' failure to post correct
antenna structure registration numbers at the site. Additionally, antenna
structures and radio stations owned by Lotus or its associated companies
have been the subject of other NOV's concerning the Commission's antenna
structure and emergency alert system ("EAS") Rules. We have consistently
rejected history of overall compliance claims based on issuance of NOV's
in other cases. Thus, we concur with the Western Region's conclusion in
the Forfeiture Order that Lotus' overall history does not mitigate its
liability in this case.
10. The record indicates that Lotus' argument concerning the repeated
nature of its violations, and its claim of a history of compliance, are
without merit. Therefore, Lotus' repeated violations of the Act and the
Rules would not warrant cancellation or reduction of the monetary
forfeiture, even if its Petition had been timely filed.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 4(j), 405
of the Act and Section 1.106 of the Rules, that the Petition for Extension
of Time to file an Application for Review and the Petition for Acceptance
of Petition for Reconsideration, filed by Lotus Communications
Corporation, ARE DENIED, and the Petition for Reconsideration filed by
Lotus Communications Corporation IS DISMISSED.
12. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's Rules, Lotus
Communications Corporation IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $10,000 for violating Section 303(q) of the Act, and Sections
17.21(a), 17.47, 17.48 and 17.49 of the Rules.
13. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order. If
the forfeiture is not paid within the period specified, the case may be
referred to the Department of Justice for collection pursuant to Section
504(a) of the Act. 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. Requests for full payment
under an installment plan should be sent to: Associate Managing Director -
Financial Operations, Room 1A625, 445 12th Street, S.W., Washington, D.C.
20554.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail, Return Receipt Requested, to Lotus
Communications Corporation, at its address of record, and its counsel of
record, Jerome S. Boros, Esquire, Bryan Cave.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Lotus initially filed a Petition for Extension of Time to file an
Application for Review on July 28, 2005. Lotus later filed a Petition for
Acceptance of Petition for Reconsideration along with the Petition on
August 30, 2005.
Lotus Communications Corporation, 20 FCC Rcd 11549 (EB 2005).
47 U.S.C. S 303(q).
47 C.F.R. SS 17.21(a), 17.47, 17.48 and 17.49.
This 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.
FCC Forms 715/715A Paragraphs 1, 3, 12, 21.
FCC Forms 715/715A, Paragraph 3.
FCC Forms 715/715A, Paragraph 12.
The 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.
After 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.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200432900008
(Enf. Bur., Western Region, Los Angeles Office, released September 29,
2004).
47 U.S.C. S 312(f).
47 U.S.C. S 303(q).
47 C.F.R. SS 17.21(a), 17.47, 17.48 and 17.49.
47 U.S.C. S 405(a).
47 C.F.R. S 1.106(f).
See 47 C.F.R. S 1.4(b).
See 47 C.F.R. S 1.4(j).
See 47 C.F.R. SS 1.106(f), 1.4(j).
See Washington Broadcast Management Co., Inc., 15 FCC Rcd 6607 (2000); Bay
Broadcasting Corporation, 15 FCC Rcd 23449 (EB 2000). We also decline to
consider Lotus' request that we treat its Petition as an Application for
Review.
We note that Lotus' remedial actions only began after being notified of
the light outage by a Los Angeles agent. The Commission has stated in the
past that a downward adjustment in a forfeiture is not warranted when the
corrections were made only after the Commission brought the violations to
the violator's attention. AT&T Wireless Services, Inc. 17 FCC Rcd 21866
(2002).
47 U.S.C. S 312(f)(2).
47 C.F.R. S 17.21(a).
47 C.F.R. S 17.1(a).
47 C.F.R. S 17.48.
47 C.F.R. S 17.47.
47 C.F.R. S 17.49.
See Section 17.4(g) of the Rules, 47 C.F.R. S 17.4(g). See Notice of
Violation to Lotus Communications Corp. d/b/a KWKW, EB-00-LA-285, (Enf.
Bur., Western Region, Los Angeles Office, issued July 19, 2000). See also,
Notice of Violation to Lotus Broadcasting Corp., EB-01-LA-117, (Enf. Bur.,
Western Region, Los Angeles Office, issued April 24, 2001); Notice of
Violation to Lotus Broadcasting Corp., EB-01-LA-220, (Enf. Bur., Western
Region, Los Angeles Office, issued September 19, 2001); Notice of
Violation to Radio Station KCMT(AM), Arizona Lotus Corp., EB-01-SD-223,
(Enf. Bur., Western Region, San Diego Office, issued January 10, 2002);
Notice of Violation to Radio Station KTKT(AM), Arizona Lotus Corp.,
EB-01-SD-224, (Enf. Bur., Western Region, San Diego Office, issued January
10, 2002).
See, e.g., Rio Grande Transmission, Inc., 16 FCC Rcd 17040 (EB 2001); Hill
Country Real Estate Development Corp., 18 FCC Rcd 21079 (EB 2003).
47 U.S.C. SS 154(i), 154(j), 405.
47 C.F.R. S 1.106.
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 303(q).
47 C.F.R. SS 17.21(a), 17.47, 17.48 and 17.49.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 06-1720
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Federal Communications Commission DA 06-1720