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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Fifth Street Funding, Inc. Antenna Structure Owner Los
Angeles, CA ) ) ) ) ) ) File No.: EB-FIELDWR-13-00007000 File No.:
EB-FIELDWR-13-00007278 Citation No.: C201432900001
CITATION AND ORDER
Antenna Structure Lighting and Registration
Adopted: December 5, 2013 Released: December 6, 2013
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. This is an official CITATION AND ORDER (Citation) issued pursuant to
Section 503(b)(5) of the Communications Act of 1934, as amended
(Communications Act or Act),^ to Fifth Street Funding, Inc. (Fifth
Street Funding), owner of two antenna structures located in Los
Angeles, California. Specifically, Fifth Street Funding is being cited
for failing to: (1) register with the Federal Communications
Commission (Commission) an antenna structure that requires notice to
the Federal Aviation Administration (FAA); (2) notify the FAA of an
antenna structure that exceeds 200 feet in height above ground level;
(3) paint and light antenna structures that exceed 200 feet in height
above ground level; (4) notify the FAA of any known extinguishment of
any top steady burning light or any flashing obstruction light,
regardless of its position, not corrected within 30 minutes; and (5)
notify the Commission within 24 hours of completion of construction of
a registered antenna structure, in violation of Section 303(q) of the
Act,^ and Sections 17.4(a), 17.7(a) 17.21(a), 17.48, and 17.57 of the
Commission's rules (Rules), respectively.^
2. Notice of Duty to Comply With Laws: Fifth Street Funding should take
immediate steps to come into compliance, and to avoid any recurrence
of the misconduct, including applying painting and lighting to both
towers and registering the antenna structures with the Commission.
Fifth Street Funding is hereby on notice that if it subsequently
engages in any conduct of the type described in this Citation,
including any violation of Section 303(q) of the Act, or Sections
17.4(a), 17.7(a), 17.21(a), 17.48 or 17.57 of the Rules, it may be
subject to civil and criminal penalties, including but not limited to
substantial monetary fines (forfeitures). Such forfeitures may be
based on both the conduct that led to this Citation and the conduct
following it.^
3. Your Response Required: Pursuant to Sections 4(i), 4(j), and 403 of
the Communications Act,^ we also direct Fifth Street Funding to
respond in writing, within thirty (30) calendar days after the release
date of this Citation, and signed under penalty of perjury, with
descriptions of the specific action(s) taken to provide the required
notification, registration, and lighting and painting for the antenna
structures, plans to preclude recurrence of the violations, and also a
timeline for completion of any correction action(s).
II. background
4. In 1932, two antenna structures were constructed on top of a building
(the Spring Arcade Building) located at 541 South Spring Street in
downtown Los Angeles, California. The two structures were used from
1932 until approximately 1938 for an AM broadcast station. The height
of each structure is 61 meters (200 feet). However, the height of each
structure above ground level when combined with the height of the
Spring Arcade Building is 108 meters (353 feet). In 2001, one of the
antenna structures was registered with the Commission and received
Antenna Structure Registration Number 1230377 (Structure One).^ An FAA
air safety study was conducted and issued for Structure One on August
30, 2001, which determined that Structure One would not be a hazard to
air navigation only if the structure was painted and lighted in
accordance with Chapters 4, 5, and 12 of FAA Circular Number
70/7460-1K.^ Specifically, Structure One was required to have daytime
and twilight marking, as well as at least one top-mounted red flashing
obstruction beacon and red obstruction lights at intermediate levels,
for nighttime. A subsequent FAA determination, however, was issued on
November 7, 2001, indicating no marking or lighting was required.^ A
review of both FAA and FCC records reveals that no FAA air safety
study has ever been conducted or issued for the second structure
(Structure Two), nor has that structure ever been registered with the
Commission.
5. On February 14, 2013, in response to a complaint from the Los Angeles
Police Department concerning unlit antenna structures atop the Spring
Arcade Building, an agent from the Enforcement Bureau's Los Angeles
Office (Los Angeles Office) inspected the two structures and
determined they were not lit and that no appropriate lighting was
installed on the structures. Finding also that both structures
exceeded 200 feet above ground level and that no notice to airmen
(NOTAM) had been issued for the structures, the Los Angeles agent
asked the FAA to issue NOTAMs for both structures.^ On March 26, 2013,
the Los Angeles Office issued a Letter of Inquiry concerning the two
structures to Fifth Street Funding.^ In their LOI Response, Fifth
Street Funding stated they "have undertaken the necessary steps with
the City of Los Angeles to obtain their approval for the removal and
demolition of these Antennas on the property."^
6. On September 6, 2013, the FAA issued a "Marking & Lighting
Recommendation" for Structure One and Structure Two specifying that
each structure should be "marked/lighted with red lights, Chapters 4,
5 & 12" pursuant to FAA Circular 70/7460-1K.^ Specifically, each
structure is required to have daytime and twilight marking, as well at
least one top-mounted red flashing obstruction beacon and red
obstruction lights at intermediate levels, for nighttime. To date,
neither antenna structure tower has the required marking and lighting
and neither structure has been dismantled.
III. applicable law and violations
7. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of the antenna structures as
prescribed by the Commission.^ Section 17.4(a) of the Rules mandates
that an antenna structure that requires notice to the FAA must be
registered with the Commission.^ Section 17.7(a) of the Rules
specifies that notification to the FAA is required for an antenna
structure that exceeds 200 feet in height above ground level.^ Section
17.21(a) of the Rules requires that an antenna structure that is over
200 feet in height above ground level must have painting and
lighting.^ Section 17.48 of the Rules requires antenna structure
owners to notify the FAA immediately of any known extinguishment of
any top steady burning light or any flashing obstruction light,
regardless of its position, not corrected within 30 minutes.^ Section
17.57 of the Rules requires an antenna structure owner to notify the
Commission within 24 hours of completion of construction of a
registered antenna structure.^
8. The record in this case shows that, on February 14, 2013 a Los Angeles
Office agent observed that neither Structure One nor Structure Two was
painted or lighted, despite the fact that both structures exceeded 200
feet in height above ground level, and that no contact had been made
by Fifth Street Funding to notify the FAA of the light outages. In
addition, the agent determined that Fifth Street Funding had not
notified the FAA of the construction of Structure Two and had not
registered the structure with the Commission. Fifth Street Funding
also failed to notify the Commission of the completed construction of
Structure One. As of the date of this Citation and Order, both
structures continue to lack the required painting and lighting,
Structure Two has not been registered with the Commission, and Fifth
Street Funding has not updated the status of Structure One's antenna
structure registration to "constructed." Based on the foregoing
evidence, we find that Fifth Street Funding violated Section 303(q) of
the Act and Sections 17.4(a), 17.7(a), 17.21(a), 17.48, and 17.57 of
the Rules.^
IV. REQUEST FOR INFORMATION
9. Pursuant to Sections 4(i), 4(j), and 403 of the Act,^ Fifth Street
Funding is directed to confirm in writing that it has taken the
necessary measures and made the corrections to ensure that it does not
continue to violate the rules discussed above, and provide the
information requested below within thirty (30) calendar days after the
release date of this Citation. A failure to respond in writing, or
the provision of an inadequate, incomplete, or misleading response,
may subject Fifth Street Funding to additional sanctions.
i. Provide the plan for installing the required lighting and painting for
Structure One and Structure Two. Include a time-frame for such lighting
and painting.
ii. Provide the plan for requesting the issuance of NOTAMs from the FAA on
a timely basis (to ensure air navigation safety) until the structures
are appropriately lighted and painted. Include a time-frame for such
requests.
iii. Provide the plan for updating the registration for Structure One with
the FCC and registering Structure Two with the FCC. Include a
time-frame for completing the required filings.
iv. If Fifth Street Funding is planning on dismantling Structure One and
Structure Two, provide the plan for dismantling the structures. If
applicable, include a time-frame for such dismantlement.
V. RESPONDING TO THIS CITATION
10. In addition to the required written information described in
paragraphs 3 and 9, above, Fifth Street Funding may, if it so chooses,
respond to this Citation--challenging the factual and legal findings
herein--within thirty (30) calendar days from the release date of this
Citation either through (1) a written statement, (2) a teleconference
interview, or (3) a personal interview at the Commission Field Office
nearest to your place of business.
11. If you would like to arrange a teleconference or personal interview,
please contact Charles A. Cooper at (562) 860-7474. The nearest
Commission Field Office is located in Cerritos, California. Such
teleconference or interview must take place within thirty (30)
calendar days of the date of this Citation. If you would like to
submit a written response, including any supporting documentation, you
must send the response within thirty (30) calendar days of the date of
this Citation to the contact and address provided in paragraph 12,
below.
12. All written communications, including the information requested in
paragraphs 3 and 9, above, should be provided to the address below.
Federal Communications Commission
Los Angeles District Office
18000 Studebaker Road, Suite 660
Cerritos, California 90703
Re: EB-FIELDWR-13-00007000
13. Reasonable accommodations for people with disabilities are available
upon request. Include a description of the accommodation you will
need, and include as much detail as you can. Also include a way we can
contact you if we need more information. Please allow at least five
(5) business days advance notice; last minute requests will be
accepted, but may be impossible to fill. Send an e-mail to
fcc504@fcc.gov or call the FCC's Consumer & Governmental Affairs
Bureau:
For sign language interpreters, CART, and other reasonable accommodations:
202-418-0530 (voice), 202-418-0432 (tty);
For accessible format materials (braille, large print, electronic files,
and audio format): 202-418-0531 (voice), 202-418-7365 (tty).
14. Please be advised that it is a violation of Section 1.17 of the Rules
(47 C.F.R. S 1.17) for any person or a staff member of that person to
make any false or misleading written or oral statement of fact.
Specifically, no person shall:
(1) In any written or oral statement of fact, intentionally provide
material factual information that is incorrect or intentionally omit
material information that is necessary to prevent any material factual
statement that is made from being incorrect or misleading; and
(2) In any written statement of fact, provide material factual information
that is incorrect or omit material information that is necessary to
prevent any material factual statement that is made from being incorrect
or misleading without a reasonable basis for believing that any such
material factual statement is correct and not misleading.^
15. Further, the knowing and willful making of any false statement, or the
concealment of any material fact, in reply to this Citation is
punishable by fine or imprisonment under 18 U.S.C. S 1001.
16. If you violate Section 1.17 of the Rules or the criminal statute
referenced above, you may be subject to further legal action,
including monetary fines pursuant to Section 503 of the Act.^
17. Under the Privacy Act of 1974, 5 U.S.C. S 552a(e)(3), we are informing
you that the Commission's staff will use all relevant material
information before it, including information that you disclose in your
interview or written statement, to determine what, if any, enforcement
action is required to ensure your compliance with the Act and the
Rules.
VI. FUTURE VIOLATIONS
18. If, after receipt of this Citation, Fifth Street Funding again
violates Section 303(q) of the Act, or Sections 17.4(a), 17.7(a),
17.21(a), 17.48, or 17.57 of the Rules by engaging in conduct of the
type described herein, the Commission may impose monetary forfeitures
not to exceed $16,000 for each such violation or each day of a
continuing violation, and up to $122,500 for any single act or failure
to act.^ Further, as discussed above, such forfeitures may be based on
both the conduct that led to the Citation and the conduct following
it.^ In addition, violations of the Act or the Rules also can result
in seizure of equipment through in rem forfeiture actions,^ as well as
criminal sanctions, including imprisonment.^
VI. ORDERING CLAUSES
19. IT IS ORDERED that, pursuant to Sections 4(i), 4(j), and 403 of the
Communications Act, Fifth Street Funding must provide the written
information requested in paragraphs 3 and 9, above. The response to
the request for information must be provided in writing, signed under
penalty of perjury by an authorized official at Fifth Street Funding
with personal knowledge of the information and representations
provided in the written response, and must be received by the FCC
within thirty (30) calendar days after the release date of this
Citation and Order.
20. IT IS FURTHER ORDERED that a copy of this Citation and Order shall be
sent both by First Class U.S. Mail and Certified Mail, Return Receipt
Requested, to Fifth Street Funding at 541 South Spring Street, Suite
204, Los Angeles, CA 90013
FEDERAL COMMUNICATIONS COMMISSION
Charles A. Cooper
District Director
Los Angeles Office
Western Region
Enforcement Bureau
^ 47 U.S.C. S 503(b)(5). Section 503(b)(5) of the Act provides that a
Citation is not required in the case of violations of Section 303(q) of
the Act, 47 U.S.C. S 303(q), if the person/entity involved is a
nonlicensee tower owner who has previously received notice of the
obligations imposed by Section 303(q) from the Commission or the permittee
or licensee who uses that tower. In this case, however, we are providing a
Citation to Fifth Street Funding because such notice may not have been
previously provided. See North Chapel Investments, Citation and Order, 27
FCC Rcd 4813 (Enf. Bur. 2012) (citation issued to nonlicensee antenna
structure owner which may not have had notice of its obligations
concerning its antenna structures).
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. SS 17.4(a), 17.7(a), 17.21(a), 17.48, 17.57.
^ See 47 U.S.C S 503(b)(5). See also S. Rep. No. 95-580, 95th Cong., 1st
Sess. at 9 (1977) (If a person or entity that has been issued a citation
by the Commission thereafter engages in the conduct for which the citation
of violation was sent, the subsequent notice of apparent liability "would
attach not only for the conduct occurring subsequently but also for the
conduct for which the citation was originally sent.") (emphasis added).
^ 47 U.S.C. SS 154(i), 154(j), 403.
^ See Antenna Structure Registration Number 1230377. The status of the
structure is currently listed as "granted."
^ See Form 7460-1 for FAA Aeronautical Study Number 2001-AWP-3318-OE,
issued August 30, 2001; see also Antenna Structure Registration Number
1230377.
^ See Form 7460-1 for FAA Aeronautical Study Number 2001-AWP-4212-OE,
issued November 7, 2001.
^ NOTAMs alert aircraft pilots of potential hazards, including antenna
structure light outages, which could affect flight safety.
^ See Fifth Street Funding, Inc., Letter of Inquiry (Mar. 26, 2013) (on
file in EB-FIELDWR-13-00007000) (LOI).
^ Response of Fifth Street Funding, Inc., to Los Angeles Office, at 1 (May
1, 2013) (on file in EB-FIELDWR-13-00007000) (LOI Response). Fifth Street
Funding also took responsibility for renewing the NOTAMs for the two
structures.
^ See FAA Aeronautical Study Number 2013-AWP-5620-OE, issued September 6,
2013 (Structure One), FAA Aeronautical Study Number 2013-AWP-5621-OE,
issued September 6, 2013 (Structure Two). Although Structure One and
Structure Two are no longer being used for the transmission of radio
energy, Fifth Street Funding is required to maintain the painting and
lighting requirements assigned to the structures until the structures are
dismantled. See 47 U.S.C. S 303(q).
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. S 17.4(a).
^ 47 C.F.R. S 17.7(a).
^ 47 C.F.R. S 17.21(a).
^ 47 C.F.R. S 17.48.
^ 47 C.F.R. S 17.57.
^ 47 U.S.C. S 303(q); 47 C.F.R. SS 17.4 (a), 17.7 (a), 17.21 (a), 17.48,
17.57.
^ 47 U.S.C. SS 154(i), 154(j), 403.
^ 47 C.F.R. S 1.17.
^ 47 U.S.C. S 503.
^ See 47 U.S.C. SS 401, 501, 503; 47 C.F.R. S 1.80(b)(7). This amount is
subject to further adjustment for inflation (see 47 C.F.R. S 1.80(b)(9)),
and the forfeiture amount applicable to any violation will be determined
based on the statutory amount designated at the time of the violation.
^ See supra para. 2.
^ See 47 U.S.C. S 510.
^ See 47 U.S.C. SS 401, 501.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 13-2306
2
Federal Communications Commission DA 13-2306