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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Burken Broadcasting, LLC ) File Number: EB-09-LA-0027
Antenna Structure Registrant ) NAL/Acct. No.: 200932900005
Las Vegas, Nevada ) FRN: 0016727562
ASR # 1219542 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 31, 2009
By the District Director, Los Angeles Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Burken Broadcasting, LLC ("Burken"), registered owner of antenna
structure # 1219542, in Las Vegas, Nevada, apparently repeatedly
violated Section 17.57 of the Commission's Rules ("Rules") by failing
to immediately notify the Commission of a change in ownership
information for antenna structure # 1219542. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Burken is apparently liable for a forfeiture in the amount of
three thousand dollars ($3,000).
2. On February 26, 2009, the Enforcement Bureau's Los Angeles Office
received information that the Antenna Structure Registration ("ASR")
for antenna structure # 1219542, did not list the current owner. On
February 26, 2009, the Commission's ASR database listed the owner as
Far West Radio, Inc.
3. On March 4, 2009, a Los Angeles Office agent spoke on the telephone
with an employee of KRLV, an AM station licensed to Burken
Broadcasting LLC, and was informed the antenna structure was owned by
4. On March 10, 2009, the Los Angeles Office issued a Letter of Inquiry
("LOI") to Burken asking if it was the owner of antenna structure #
1219542. On April 9, 2009, the Los Angeles Office received a response
to the LOI from Burken stating it was the current owner of the antenna
structure. According to the response, Burken acquired antenna
structure # 1219542 on November, 8, 2007. Burken stated that the
previous owner, Far West Radio, Inc., failed to file the necessary
ownership change form, as required by Section 17.57.
5. Currently, the Commission's ASR database lists Burken as the owner of
antenna structure # 1219542. The record lists an update request
received on March 23, 2009.
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 17.57 of the Rules requires the owner of an antenna structure
to immediately notify the Commission, using FCC Form 854, upon any
change in ownership information. We require antenna structure owners
to maintain current antenna structure registration information with
the Commission and post ASR numbers at the base of antenna structures
to allow for easy contact if problems arise.
8. According to the LOI Response, Burken acquired antenna structure #
1219542 on November 8, 2007. As of February 26, 2009, the
Commission's ASR database showed Far West Radio, Inc., as the owner of
the structure. Burken's application to update the ownership
information in the Commission's ASR database was received on March 23,
9. In the LOI Response, Burken states that the previous owner failed to
file the required forms required under Section 17.57. It appears
Burken is misinterpreting Section 17.57. Since Burken is the current
owner, it is they (not the previous owner) who are subject to Section
17.57. The appropriate form to indicate an ownership change is FCC
Form 854. The instructions state "[f]or an ownership change, the
assignee (i.e. the entity acquiring ownership of the structure) must
provide the new ownership information and sign the form."
10. From November 8, 2007, until March 23, 2009, Burken failed to notify
the Commission that it had acquired antenna structure # 1219542. This
violation occurred for more than one day, therefore, it is repeated.
Based on the evidence before us, we find that Burken apparently
repeatedly violated Section 17.57 of the Rules by failing to
immediately notify the Commission about a change in ownership for
antenna structure # 1219542 in Las Vegas, Nevada.
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 failure 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, and the
statutory factors to the instant case, we conclude that Burken is
apparently liable for a $3,000 forfeiture.
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, Burken Broadcasting, LLC, is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of three thousand dollars ($3,000) for violation of Section
17.57 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, Burken Broadcasting, LLC,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
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/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. Burken Broadcasting, LLC will
also send electronic notification on the date said payment is made to
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Road, Suite 660, Cerritos, California, 90703 and must
include the NAL/Acct. No. referenced in the caption. An electronic
copy shall be sent to WR-Response@fcc.gov.
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. 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 Burken Broadcasting, LLC.
FEDERAL COMMUNICATIONS COMMISSION
Los Angeles Office
47 C.F.R. S: 17.57.
47 U.S.C. S: 503(b).
Antenna structure # 1219542 is required to have painting and lighting in
accordance with FAA Chapters 3, 4, 5, and 13 of FAA Circular Number
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, e.g., American Tower Corporation, 16 FCC Rcd 1282 (2001) ) (Notice of
Apparent Liability); American Tower Corporation, 16 FCC Rcd 14937 (2001)
(Consent Decree between the Commission and American Tower Corporation ).
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, 17.57.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission