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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File Number: EB-07-DV-122
Southern New Mexico Radio Foundation
) NAL/Acct. No.: 200732800009
Licensee of Station WPXT310
) FRN: 0005836226
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 11, 2007
By the District Director, Denver Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Southern New Mexico Radio Foundation ("Southern"), licensee of
station WPXT310 in Alamogordo, New Mexico, apparently willfully and
repeatedly violated Sections 1.903(a), 1.947(a), and 74.532(e) of the
Commission's Rules ("Rules") by failing to operate the aural
studio-transmitter-link ("STL") from its licensed location. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Southern is apparently liable for
forfeiture in the amount of four thousand dollars ($4,000).
2. On March 26, 2007, an agent from the Enforcement Bureau's Denver
Office responded to a complaint of an auxiliary broadcast transmitter
operating from an unauthorized location in Alamogordo, New Mexico. At
approximately 7:00 p.m., the agent observed a signal 948.425 MHz
emanating from an antenna located at 3001 North Florida Avenue, in
Alamogordo, New Mexico.
3. On March 27, 2007, the Denver agent returned to conduct an inspection.
The inspection revealed that the 3001 North Florida Avenue location
housed the studios of the Southern New Mexico Radio Foundation. The
transmitter, operating under call sign WPXT310, was determined to be
the STL for broadcast station KUPR. The coordinates of the studios on
North Florida Avenue were approximately 32-o 55' 40" north latitude,
105-o 57' 10.4" west longitude. According to the WPXT310
authorization, the STL is licensed for operation from the coordinates
of 32-o 54' 25.5" north latitude, 105-o 57' 35.8" west longitude with
a physical street address of 1510 North White Sands Boulevard,
Alamogordo, New Mexico.
4. During the inspection, the agent informed Southern's owner of the
violation concerning the location of the STL. The Southern
representative stated that the studio and STL moved from the 1510
North White Sands Boulevard location on February 16, 2007. When the
inspection was completed, the agent reviewed the violation with
Southern's owner. The station owner acknowledged the licensing error
and Southern's failure to include the STL transmitter location change
when they applied for an STA for the parent broadcast station, KUPR.
The station owner stated that he would start paperwork immediately to
make the changes for WPXT310.
5. On March 28, 2007, the agent returned to the studio location of 3001
North Florida Avenue and observed that WPXT310 was still operating
from that location.
6. On April 18, 2007, a review of the Commission's databases revealed no
modification application on file for WPXT310. In a fax stamped with
the date of April 21, 2007, Southern's owner sent the Denver agent
information concerning the necessary modifications that were to be
made: a change of address request to the FCC and an application for a
"simplex auxiliary broadcast STL microwave path" sent to a frequency
7. On September 4, 2007, a review of the Commission's databases revealed
no modification application on file for WPXT310.
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 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service and with a valid
authorization granted by the Commission. Section 1.947(a) of the Rules
requires that all major modifications as defined in Section 1.929 of
the Rules require prior Commission approval. Section 1.929(d)(1)(i) of
the Rules defines one of the major actions as "any change in transmit
antenna location by more than 5 seconds in latitude or longitude for
fixed point-to-point facilities." Section 74.532(e) of the Rules
states that each aural broadcast auxiliary station will be licensed at
a specified transmitter location to communicate with a specified
receiving location, and the direction of the main radiation lobe of
the transmitting antenna will be a term of the station authorization.
At the time of the inspection on March 27, 2007, Southern was found
operating station WPXT310 from a location inconsistent with the
station's authorized coordinates and "fixed address location." The
distance separating the point of operation from that of the license
was greater than 1 mile (approximately 74 seconds of latitude and 25
seconds of longitude). The licensee acknowledged the licensing
inaccuracies, noting that the STL had been operating from this
location for more than a month; therefore, the violation was willful.
Station WPXT310 was observed operating from the incorrect location on
March 26, 27, and 28, 2007. The violation occurred for more than one
day, therefore it was repeated.
10. Based on the evidence before us, we find that Southern apparently
willfully and repeatedly violated Sections 1.903(a), 1.947(a), and
74.532(e) of the Rules by failing to obtain Commission approval prior
to relocating and operating aural STL station WPXT310.
11. 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 the operation of a station from an
unauthorized location is $4,000. 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 Southern
New Mexico Radio Foundation is apparently liable for a $4,000
IV. ORDERING CLAUSES
12. 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, Southern New Mexico Radio
Foundation, is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
violations of Sections 1.903(a), 1.947(a) and 74.532(e) of the Rules.
13. 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, Southern New Mexico Radio
Foundation, SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
14. 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.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Boulevard, # 303, Lakewood, Colorado, 80226, and must
include the NAL/Acct. No. referenced in the caption.
16. 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.
17. 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.
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 Southern New Mexico Radio Foundation.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
47 C.F.R. S:S: 1.903(a), 1.947(a), and 74.532(e).
47 U.S.C. S: 503(b).
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 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.947(a).
47 C.F.R. S: 1.929(d)(1)(i).
47 C.F.R. S: 74.532(e).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 1.903(a),
1.947(a) and 74.532(e).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission