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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Carlsbad Radio, Inc. File Number EB-07-DV-110
Licensee of Station WGW926 NAL/Acct. No. 200732800010
Carlsbad, New Mexico FRN 0001612712
Facility ID # 54514
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 25, 2007
By the District Director, Denver Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Carlsbad Radio, Inc. ("Carlsbad Radio"), licensee of station
WGW926 in Carlsbad, 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 station WGW926, an
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 Carlsbad Radio is apparently liable for
a forfeiture in the amount of four thousand dollars ($4,000).
2. On February 7, 2007, an agent from the Enforcement Bureau's Denver
Office inspected STL transmitters operating from the Carlsbad Radio
studio at 1609 Radio Boulevard in Carlsbad, New Mexico ("Radio
Boulevard Studio"). The coordinates of the Radio Boulevard studios are
approximately 32-o 23' 43" north latitude, 104-o 14' 48" west
longitude. At the time of the inspection, station WGW926 was operating
from these coordinates. According to the WGW926 station authorization,
its licensed coordinates are 32-o 25' 41.4" north latitude, 104-o 13'
26.8" west longitude with a physical street address of 714 North
Canyon, in Carlsbad, New Mexico.
3. During the Radio Boulevard Studio inspection, the agent informed the
Carlsbad Radio stations' engineer of the violations found with the
WGW926 station license. The Carlsbad Radio engineer stated that the
WGW926 STL had been relocated from the 714 North Canyon studio
location to the Radio Boulevard Studio more than a year prior to the
inspection. When the inspections were completed, the agent reviewed
the violations with Carlsbad Radio representatives. The station
engineer acknowledged the licensing errors and stated to the agent
that, after being informed of the STL licensing violations that
afternoon, Carlsbad Radio would begin the process to correct the
4. On February 8, 2007, the agent returned to the Radio Boulevard Studio
and observed station WGW926 continuing to transmit on a center
frequency of 951.5000 MHz.
5. On September 10, 2007, a review of the Commission's databases
reflected neither a change in the coordinates nor a change in the
fixed location address for station WGW926. Additionally, there were no
applications pending in the system for modifications to correct the
licensing errors the agent communicated to Carlsbad Radio's chief
6. 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.
7. 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 February 7, 2007, Carlsbad Radio was
found operating radio station WGW926 from a location inconsistent with
the station's authorized coordinates and street address. The distance
separating the point of operation from that of the license was greater
than 2.5 miles (specifically, approximately 118 seconds of latitude
and approximately 81 seconds of longitude). The licensee's engineer
acknowledged the licensing inaccuracies, noting that station WGW926
had been operating from this location for over a year; therefore, the
violation was willful. Station WGW926 was observed operating from the
incorrect location on February 7 and 8, 2007. The violation occurred
for more than one day, therefore it was repeated.
8. Based on the evidence before us, we find that Carlsbad Radio
apparently willfully and repeatedly violated Sections 1.903(a),
1.947(a), and 74.532(e) of the Rules by failing to operate station
WGW926 from its licensed location.
9. 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 Carlsbad
Radio is apparently liable for a $4,000 forfeiture.
IV. ORDERING CLAUSES
10. 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, Carlsbad Radio, Inc., 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.
11. 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, Carlsbad Radio, Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
12. 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.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215
South Wadsworth Boulevard, Suite 303, Lakewood, Colorado, 80226, and
must include the NAL/Acct. No. referenced in the caption.
14. 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.
15. 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.
16. 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 Carlsbad Radio, Inc., at its address
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