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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Perry Broadcasting Systems ) File Number EB-08-SJ-045
Lajas, PR ) NAL/Acct. No. 200932680001
Owner of Antenna Structure #s 1063859 ) FRN 10123388
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 12, 2008
By the Resident Agent, San Juan Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Perry Broadcasting Systems ("PBS"), owner of antenna structure #s
1063859 and 1063860, in Lajas, Puerto Rico, apparently willfully and
repeatedly violated Sections 17.51(a) and 17.57 of the Commission's
Rules ("Rules") by failing to exhibit all red obstruction lighting,
and failing to notify immediately the Commission of a change in
ownership. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that PBS is apparently
liable for a forfeiture in the amount of thirteen thousand dollars
2. In response to a complaint of an unlit tower, agents from the
Commission's San Juan Office of the Enforcement Bureau ("San Juan
Office") consulted the Commission's Antenna Structure Registration
("ASR") database and noted that "International Broadcasting
Corporation" was listed as the owner of antenna structure #s 1063859
and 1063860. The agents contacted International Broadcasting
Corporation and were informed that the structures had been sold to PBS
3. On October 13, 2008, the agents observed that the lights on antenna
structure #s 1063859 and 1063860 were unlit. According the the ASR
database, antenna structure #s 1063859 and 1063860 are more than 200
feet in height and require painting and lighting. On October 14, 2008,
the agents contacted the Federal Aviation Administration ("FAA")'s
Flight Service Station and were advised that a Notice to Airmen
("NOTAM") had not been issued for the antenna structures.
4. On October 20, 2008, the agents from the San Juan Office returned to
Lajas and observed that the lights on antenna structure #s 1063859 and
1063860 were again unlit. On October 22, 2008, the agents spoke to
PBS' owner, who stated that he was unaware of the tower light outage.
Moreover, he stated that PBS acquired the two towers in 2001 and that
the attorney who represented the towers' prior owner failed to file
the paperwork to update the ASR database. PBS' owner did not respond
when asked whether the station had installed an automatic alarm system
to monitor the towers' lights or whether station personnel observed
the towers' lights visually once every 24 hours.
5. 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) of the Act 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.
6. Section 17.51(a) of the Rules requires that all red obstruction
lighting be exhibited from sunset to sunrise unless otherwise
specified. On October 13 and 20, 2008, agents from the San Juan Office
observed that all required obstruction lighting on antenna structure
#s 1063859 and 1063860 were extinguished. PBS was unaware of the
outages on October 20, 2008 and did not call in a NOTAM regarding the
outages prior to that date. There was no evidence that PBS had
installed an automatic alarm system or made an observation of the
towers' lights visually once every 24 hours.
7. Section 17.57 of the Rules requires that the owner of an antenna
structure for which an ASR number has been obtained must immediately
notify the Commission using FCC Form 854 upon any change in structure
height or change in ownership information. On October 13 and 20, 2008,
International Broadcasting Corporation was listed as the owner of
antenna structure #s 1063859 and 1063860 in the ASR database. PBS
admitted that it acquired the structures in 2001.
8. Based on the evidence before us, we find that PBS apparently
willfully and repeatedly violated Sections 17.51(a) and 17.57 of the
Rules by failing to exhibit all red obstruction lighting from sunset
to sunrise, and failing to notify the Commission immediately of a
change in structure ownership.
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 failing to comply with prescribed lighting
and marking is $10,000 and the base forfeiture amount for failing to
file required forms or information is $3,000. 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 of the Rules, and the statutory factors to the
instant case, we conclude that PBS is apparently liable for a $13,000
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, Perry Broadcasting Systems
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of thirteen thousand dollars ($13,000) for violations of
Sections 17.51(a) and 17.57 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, Perry Broadcasting
Systems SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, San Juan Office,
Room 762, Federal Building, Hato Rey, PR 00918-1731 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. 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 Perry Broadcasting Systems at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
San Juan Office
South Central Region
47 C.F.R. S:S: 17.50, 17.57.
47 U.S.C. S: 503(b).
See 47 C.F.R. S: 17.21.
The agent requested that the FAA issue a NOTAM at that time.
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."
See 47 C.F.R. 17.47 (owners of antenna structures which have been assigned
lighting specifications are required to observe the structure's lights
once every 24 hours to ensure proper functioning or install an automatic
alarm system that notifies the owner when the lights are out).
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, 17.51(a),
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Federal Communications Commission
Federal Communications Commission