Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-SJ-019
Concilio Mision Cristiana Fuente de Agua Viva )
San Juan, Puerto Rico ) NAL/Acct. No.
) FRN 0000-0131-85
Adopted: September 30, 2002 Released: October 3,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of fifteen thousand dollars
($15,000), to Concilio Mision Cristiana Fuente de Agua Viva
(``Concilio''), licensee of radio station WRSJ(AM) and owner of
antenna structure number 1010646 in Guaynabo, Puerto Rico for
willful and repeated violation of Section 17.4(g) of the
Commission's Rules (``Rules'').1 We also find Concilio willfully
violated Sections 17.51 and 17.57 of the Rules.2 The noted
violations involve Concilio's failure to have its antenna
structure registration (``ASR'') number posted on March 26, 2002
and on April 2, 2002, failure to exhibit prescribed obstruction
lighting, and failure to notify the Commission of a change in
ownership of antenna structure number 1010646.
2. On May 14, 2002, the Commission's San Juan, Puerto Rico
Resident Agent's Office (``San Juan Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'')3 in the amount of
fifteen thousand dollars ($15,000) to Concilio. Concilio filed
a response on July 8, 2002.4
3. On March 26, 2002, a Commission agent from the San Juan
Office inspected Concilio's antenna structure number
1010646. The agent observed that the antenna structure
did not have the ASR number posted on or near the base
of the structure, or anywhere else on the property.
The agent also observed that, although it was after
local sunset at 7:30 p.m., none of the lights on the
structure were lighted. On March 27, 2002, the agent
conducted an inspection of station WRSJ(AM). At that
time, the agent informed WRSJ's general manager and
engineer that the lighting on the antenna structure was
not functioning. The general manager and the engineer
both informed the agent that the antenna structure
required neither registration nor lighting because its
overall height above ground was 153 feet. However,
the station license lists the overall height of the
antenna structure as 222.5 feet. On March 28, 2002,
the agent returned to Concilio's antenna structure and
measured it. The structure measured 230 feet, thus
requiring it to be registered and lighted. Further,
the ASR database lists the owner of the antenna
structure as ``Andres Gomez DBA ABG Realty
Investment,'' which, according to Concilio, was the
previous owner. On May 14, 2002, the San Juan Office
issued an NAL to Concilio. On July 8, 2002, Concilio
filed a response. In its response, Concilio does not
dispute the violations. However, Concilio requests
elimination of the forfeiture based on its assertion
that the previous tower owner provided it wrong data
and information which it relied upon. That information
indicated that the tower was under 200 feet and thus
did not require registration and lighting. Concilio
further requests that we give special consideration to
its non-profit status, although it has not submitted
any information suggesting that its financial situation
would make payment of the forfeiture difficult.
4. The forfeiture amount in this case is being
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),5 Section 1.80 of the Rules,6
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.7 In examining Concilio's response, 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.8
5. Section 17.4(g) of the Rules requires that ASR
numbers be displayed in a conspicuous place so that they are
readily visible near the base of the antenna structure. Section
17.51 of the Rules provides that all red obstruction lighting
shall be exhibited from sunset to sunrise unless otherwise
specified. Section 17.57 of the Rules requires the owner of an
antenna structure for which an ASR number has been obtained to
notify the Commission upon any change in ownership information.
Concilio does not deny that the violations alleged in the NAL
occurred. Therefore, based on the evidence before us, we find
that Concilio failed to post the ASR number on or near the base
of its antenna structure number 1010646 in willful9 and
repeated10 violation of Section 17.4(g) of the Rules; failed to
display red obstruction lighting from sunrise to sunset on March
26, 2002 in willful violation of Section 17.51 of the Rules; and
failed to notify the Commission that it was the new owner of
antenna structure number 1010646 in willful violation of Section
17.57 of the Rules.
6. Concilio contends that it relied on inaccurate
antenna structure height information provided by the former owner
which caused it to believe that the tower did not require
registration and lighting. Also, according to Concilio, because
the tower did not require lighting, it was not necessary to
service the outages. However, the station license lists the
overall height of the antenna structure as 222.5 feet, giving
Concilio constructive knowledge of the actual height of the
tower. Moreover, licensees are expected to know and comply with
the Commission's rules.11 Sections 17.4 and 17.7 of the Rules12
require that antenna structures over 200 feet be registered.
Section 17.4 requires ASR numbers to be posted on or near the
base of the tower. Section 17.21 of the Rules13 requires that
antenna structures over 200 feet be painted and lighted. It is
also the licensee's responsibility to have accurate knowledge of
its operations to apply the rules correctly. Further, although
Concilio provides the results of an FAA study which concluded
that the antenna structure would not exceed FAA obstruction
standards and would not be a hazard to air navigation, that
conclusion was also based on the same misinformation: that the
tower was 153 feet tall.
7. Finally, Concilio requests that it be given
special consideration because of its non-profit status. Section
1.80 of the Rules lists the downward adjustment criteria, which
include: minor violation, good faith or voluntary disclosure,
history of overall compliance, and inability to pay.14 While the
Commission has discretion to reduce a forfeiture on other
grounds, Concilio has not explained why a reduction of the
forfeiture based on Concilio's non-profit status by itself would
be appropriate. In this regard, we note that Concilio has
provided no information suggesting that its financial situation
would make payment difficult.15
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,16 Concilio Mision Cristiana Fuente de Agua Viva IS LIABLE
FOR A MONETARY FORFEITURE in the amount of fifteen thousand
dollars ($15,000) for willfully and repeatedly violating Section
17.4(g) of the Rules and willfully violating Sections 17.51and
17.57 of the Rules.
9. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.17
Payment shall be made by mailing a check or similar instrument,
payable to the order of the ``Federal Communications
Commission,'' to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 200232680004, and FRN 0000-0131-85. Requests for
full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.18
10. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by regular mail and Certified Mail Return
Receipt Requested to Concilio Mision Cristiana Fuente
de Agua Viva at P.O. Box 4039, Carolina, Puerto Rico
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.4(g).
2 47 C.F.R. §§ 17.51 and 17.57.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232680004 (Enf. Bur., San Juan Office, released May 14, 2002).
4 A response to a Commission NAL should be filed within 30
days of the issuance of the NAL. See Section 1.80(f)(3) of the
Rules. Although Concilio's response was filed more than 30 days
from the issuance of the NAL, we will still consider it in this
proceeding to ensure that we have a complete record.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
8 47 U.S.C. § 503(b)(2)(D).
9 Section 312(f)(1) of the Act, 47 U.S.C. § 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).
10 Section 312(f)(2), which also applies to Section 503(b),
provides: "[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."
11 See Econopage of Cleveland, Inc. 16 FCC Rcd 2989, 2990
(Enf. Bur. 2001).
12 47 C.F.R. § 17.7.
13 47 C.F.R. § 17.21.
14 47 C.F.R. § 1.80, note to paragraph (b)(4), Section II.
15 As the NAL stated, in order for the Commission to consider
a claim of inability to pay, the petitioner must submit: (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. See NAL at para. 14.
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 U.S.C. § 504(a).
18 See 47 C.F.R. § 1.1914.