******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) ) In the Matter of ) ) Dominga Barreto Santiago ) NAL/Acct. No. 815SJ0001 P.O. Box 7 ) Moca, Puerto Rico 00676 ) FORFEITURE ORDER Adopted: February 26, 1999 Released: March 5, 1999 By the Director, Legal Services Group, Compliance and Information Bureau: 1. Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL") for monetary forfeiture issued on September 4, 1998, to Dominga Barreto Santiago ("Santiago"), licensee of AM Station WZNA, Moca, Puerto Rico, and the October 5, 1998 "Request for Reduction or Rescission of Forfeiture" filed on behalf of Santiago in response thereto by her legal counsel. The NAL proposed imposition of a forfeiture against Santiago in the amount of $4,000 pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C  503(b), and Section 1.80 of the Commission's Rules ("the Rules"), 47 C.F.R.  1.80, for willful violation of Sections 73.1350(a) and (d)(2) of the Rules, 47 C.F.R.  73.1350(a) and (d)(2). For the reasons stated below, we affirm the $4,000 forfeiture amount. BACKGROUND 2. In August, 1998, the Bureau's Resident Agents Office in San Juan, Puerto Rico received complaints that WZNA was operating at night, though it was not authorized to do so. WZNA's license only authorizes daytime operation. One of the San Juan Resident Agents traveled to Moca to investigate these complaints on August 13, 1998. While there, he detected and monitored radio transmissions of WZNA on its licensed frequency of 1040 kHz in Moca, between the hours of 7:30 p.m. and 9:00 p.m. At approximately 8:30 p.m., the station manager appeared at the station and confirmed that WZNA was operating at night. 3. On September 4, 1998, the Bureau's San Juan Office issued the subject NAL to Santiago, for operating WZNA in violation of Sections 73.1350(a) and (d)(2) of the Rules. Section 73.1350(a) of the Rules requires a licensee to maintain and operate its station in accordance with the terms of the station's authorization. Section 73.1350(d)(2) provides that AM stations operating in a mode not specified by their licenses for the pertinent time of day or hours of operation must terminate such operation within three minutes. DISCUSSION 4. The October 5, 1998 response to the NAL seeks reduction or rescission of the forfeiture. Initially, Santiago contends that it is unclear whether the Bureau took into account the requisite factors for assessing forfeitures outlined in Section 503(b)(2)(D) of the Act, 47 U.S.C.  503(b)(2)(D). These factors include the nature, circumstances, extent and gravity of the violation, and the violator's degree of culpability, history of prior offenses, and ability to pay. As an example, Santiago claims that The Commission's Forfeiture and Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. pending ("Policy Statement"), provides no base amount for the particular violation charged in this case, and asserts that it is therefore impossible to determine to what extent the statutory factors were considered in assessing the fine in the instant case. 5. Santiago's response to the NAL further contends that several mitigating factors exist warranting reduction or rescission of the forfeiture assessed against her. Specifically, she states that WZNA is a daytime only station licensed to a small community in Puerto Rico, and claims that the Commission "takes into account the size of the market in assessing forfeitures and will reduce the forfeiture where the community is a small, rural community" (citing In the Matter of Delta Radio Corp., 12 FCC Rcd 22030 (CIB 1997), In the Matter of Benito Rish, 10 FCC Rcd 2861 (1995), and In the Matter of Liability of Sitka Broadcasting Co., Inc., 70 FCC 2d 2375 (1979)). Santiago also claims that she has "an unblemished record" as a licensee, which warrants reduction or rescission of the fine (citing In the Matter of Liability of Macau Traders, Inc., 13 FCC Rcd 228 (MMB 1998), and Mississippi Valley Broadcasting, Inc., 13 FCC Rcd 5891 (MMB 1997)). Furthermore, Santiago asserts that prior to the August 13, 1998 investigation, she had filed an application with the Commission requesting nighttime authority for WZNA on May 20, 1998 (File No. BP-980521AC), and believed that the station was permitted to operate at night "in a test mode" while the application was pending. Santiago points out that the application was granted on September 18, 1998, subsequent to the issuance of the NAL. Finally, Santiago contends that WZNA qualifies for mitigation as a "small entity" under the Small Business Regulatory Enforcement Fairness Act ("SBREFA"), 5 U.S.C.  601 et seq., because its annual receipts are less than $5,000,000, and that the expenses incurred to repair damages the station suffered from Hurricane Georges will "make it difficult to pay" the forfeiture. 6. The forfeiture guidelines in Appendix A to the Policy Statement provide for a forfeiture of $4,000 for unauthorized emissions. See Policy Statement at 17114. Nighttime operation of an AM station that is authorized to operate only during daytime hours arguably constitutes "unauthorized emissions." However, even if this guideline amount was deemed inapplicable to the instant case, the Policy Statement clearly states, at paragraph 22: [A]ny omission of a specific rule violation from the list set forth in Appendix A should not signal that the Commission considers any unlisted violation as nonexistent or unimportant. The Commission expects, and it is each licensee's obligation, to know and comply with all of the Commission's rules.... Although we have adopted the base forfeiture amounts as guidelines to provide a measure of predictability to the forfeiture process, we retain our discretion to depart from the guidelines and issue forfeitures on a case-by-case basis, under our general forfeiture authority contained in Section 503 of the Act. Policy Statement, at 17099. 7. Though the size of the market served by the licensee and the licensee's history of prior offenses are considerations to be weighed in assessing forfeitures, these factors are not, by themselves, decisive in determining whether a forfeiture should be reduced. For example, each of the cases cited by Santiago in support of her arguments concerning market size as a mitigating factor also explicitly relied on evidence of the licensee's financial conditions in reducing the forfeitures assessed. See Delta Radio Corp., supra, at 22032 (evidence that station operated at a loss and suffered increasing loss of net worth, along with market size, warrant forfeiture reduction); Benito Rish, supra, at 2862 (small market status of station combined with low station value and apparent unprofitable history warrant forfeiture reduction); and Sitka Broadcasting, supra, at 2379 ("It is ... the financial conditions of [the station] that persuades us to reduce the ... forfeiture...."). As discussed in greater detail below, Santiago has provided no documented evidence of WZNA's financial condition. 8. Santiago's claim that she believed test operations were permissible during the pendency of that application is also unpersuasive. We could infer from this claim that the unauthorized operation had been continuing from the application's filing on May 20, 1998, until the investigation almost three months later on August 13, 1998. Santiago provides no basis for her belief that "test" operations were permissible prior to receipt of the construction permit for nighttime transmissions. Although a construction permit for nighttime operation was ultimately received, this ex post facto permit does not absolve Santiago of the operation beyond the scope of her license. Additionally, the record does not indicate if, or when, WZNA discontinued the unauthorized nighttime operation. 9. Section 73.1350(d)(2) of the Rules clearly prohibits an AM station from operating outside the hours authorized in its license for more than three minutes. The investigation of WZNA found the station to be operating outside its authorized timeframe for more than an hour. "Licensees are expected to know and comply with the Commission's rules, and will not be excused for violations thereof, absent clear mitigating circumstances." Sitka Broadcasting, supra, at 2378, citing Lowndes County Broadcasting Co., 23 FCC 2d 91 (1970) and Emporium Broadcasting Co., 23 FCC 2d 868 (1970). Based on the record before us, it is clear that this violation was not caused by accident or mistake. We therefore find that this violation was willful. 10. Finally, we note that the only evidence offered in support of Santiago's financial hardship claims (i.e., that the station is a "small entity" under SBREFA, and that the expenses to repair damage caused by Hurricane Georges would make it difficult for the station to pay the forfeiture) are unsupported assertions in a statement of the licensee, which is attached to the response. The attached statement asserts Santiago's belief that WZNA falls within SBREFA's parameters because the station's "annual receipts are less than Five Million Dollars [sic] per year," and that, though the amount of damage had not been determined, "repairs to the station will be costly and will affect the station's ability to pay this forfeiture." The NAL clearly stated, at footnote two, that a claim of inability to pay should be supported by tax returns or other financial statements prepared under generally acceptable accounting procedures for the most recent three-year period. Footnote three to the NAL stated further that small business claims must be supported in order to be eligible for a potential reduction pursuant to SBREFA. Despite these directions, documentation which would allow the Commission to assess the validity of claims regarding the station's financial status has not been submitted for consideration. Undocumented statements of a licensee's size and financial condition do not meet the requirement of a particularized showing of financial hardship or inability to pay. See, e.g., PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992) (a licensee's gross revenues are generally the best indicator of its ability to pay a forfeiture); In re Application of Ellwood Beach Broadcasting, Ltd., 8 FCC Rcd 453, 454 (1993) (respondent's failure to submit any financial documents or other evidence deemed insufficient showing of inability to pay); Macau Traders, supra, at 233 (no reduction of forfeiture warranted due to undue financial hardship where violator provided no documentary evidence upon which to evaluate its financial condition or ability to pay). See also Section 1.80(f)(3) of the Rules, 47 C.F.R.  1.80(f)(3) ("Any showing as to why the forfeiture should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent."). 11. In sum, the Bureau's San Juan Office issued the forfeiture pursuant to Section 503 of the Act and Section 1.80 of the Rules. In assessing the forfeiture amount, the San Juan Office followed the forfeiture standards established in Section 503 of the Act and the Policy Statement. Section 503(b) of the Act requires that the Commission take into account the nature, circumstances, extent and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and other such matters as justice may require. 47 U.S.C.  503(b)(2)(D). Applying the Policy Statement and statutory factors to the instant case, in conjunction with the factors examined above, we affirm the forfeiture amount of $4,000. 12. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80 of the Rules, 47 C.F.R. 1.80, and the Commission's Policy Statement, Dominga Barreto Santiago IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for violation of Sections 73.1350(a) and (d)(2), 47 C.F.R.  73.1350(a) and (d)(2). 13. IT IS FURTHER ORDERED that, pursuant to Section 1.80(f) of the Rules, 47 C.F.R. 1.80(f), Dominga Barreto Santiago shall, within thirty (30) days of the release of this Forfeiture Order, pay the amount of $4,000. Payment of the forfeiture shall be made in U.S. dollars, by check, credit card or money order drawn on a U.S. financial institution, with the appropriate documentation, payable to the Federal Communications Commission. The remittance should be marked NAL/Acct. No. 815SJ0001, and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 Petitions for reconsideration pursuant to Section 1.106 of the Rules, 47 C.F.R. 1.106, or applications for review pursuant to Section 1.115 of the Rules, 47 C.F.R. 1.115, should be sent to: Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 ATTN: Mail Stop 1500E3-DLH Compliance and Information Bureau Forfeiture penalties not paid within 30 days will be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). 14. IT IS FURTHER ORDERED that a copy of this Order shall be sent to Dominga Barreto Santiago, Box 7, Moca, Puerto Rico 00676 and a copy shall be sent certified mail, return receipt requested to her attorney. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau