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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
MEMORANDUM OPINION AND ORDER
Adopted: March 27, 2003 Released: March 31, 2003
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny the petition for reconsideration filed on November 1, 2002,
by Concilio Mision Cristiana Fuente de Agua Viva (``Concilio'').
Cocilio seeks reconsideration of the Forfeiture Order,1 in which
the Chief, Enforcement Bureau (``Bureau''), found it liable for a
monetary forfeiture in the amount of $15,000 for willful and
repeated violation of Section 17.4(g) of the Commission's Rules
(``Rules''),2 and willful violation of Sections 17.51 and 17.57
of the Rules.3 The noted violations involve Concilio's failure
to have its antenna structure registration (``ASR'') number
posted, failure to exhibit the prescribed obstruction lighting,
and failure to notify the Commission of a change in the ownership
of the antenna structure. For the reasons discussed below, we
affirm the monetary forfeiture in the amount of $15,000.
2. Concilio is the licensee of radio station WRSJ(AM) and
the owner of that station's antenna structure, ASR number
1010646, in Guaynabo, Puerto Rico. On March 26, 2002, an agent
from the Commission's San Juan Resident Agent Office (``San Juan
Office'') inspected antenna structure 1010646. The agent
observed that the antenna structure did not have its 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, the lights on the structure were not
functioning. The ASR database listed the owner of antenna
structure 1010646 as Andres Gomez DBA ABG Realty Investment
3. When the agent inspected station WRSJ(AM) on March 27,
2002, he informed WRSJ's general manager and engineer
that the antenna structure's lighting was not
functioning. The general manager and the engineer both
told the agent that the antenna structure did not
require registration or lighting because its overall
height above ground was 153 feet.5 The station
license, however, indicated that the antenna
structure's overall height was 222.5 feet. On March
28, 2002, the agent determined by triangulation that
the overall height of antenna structure 1010646 was
approximately 230 feet. On April 2, 2002, the agent
returned to antenna structure 1010646 and observed
Concilio measure the antenna structure's overall height
and determine it to be 222.5 feet above the ground. On
April 2, 2002, the agent also observed that Concilio
still had not posted the ASR number on or near the base
of the antenna structure or anywhere else on the
4. On May 14, 2002, the San Juan Office issued a $15,000
NAL to Concilio for willful and repeated violation of
Section 17.4(g) of the Rules, and willful violation of
Sections 17.51 and 17.57. Concilio responded to the
NAL seeking cancellation of the proposed forfeiture.
On October 3, 2002, the Enforcement Bureau released a
Forfeiture Order affirming the forfeiture proposed by
the NAL. On November 1, 2002, Concilio filed a petition
for reconsideration of the Forfeiture Order. Concilio
does not dispute the violations but requests
cancellation or reduction of the forfeiture.
5. Section 17.57 of the Rules requires that antenna
structure owners immediately notify the Commission using FCC Form
854 of any change in ownership. Concilio argues that the
Commission cannot impose a forfeiture for failure to notify it of
the ownership change because the Commission had approved
Concilio's acquisition of station WRSJ(AM) and, therefore, ``was
fully aware that the ownership of the station and tower had
changed to the Concilio.''6 Filing an application to assign a
station license does not notify the Commission of a change in the
ownership of the station's antenna structure because acquisition
of a station does not necessarily include acquisition of the
station's antenna structure. Concilio was required to file FCC
Form 854 and did not do so. Accordingly, we affirm the
imposition of a forfeiture for this violation.
6. Concilio argues that its lighting and posting
violations are the product of its reliance on incorrect antenna
height information provided by Gomez and that the Forfeiture
Order should have found that this circumstance mitigates
Concilio's violations. Concilio made a similar argument in its
response to the NAL and provides nothing new to support this
argument. As pointed out in the Forfeiture Order, it was
Concilio's duty to know the height of WRSJ's antenna structure
and WRSJ's station license put Concilio on notice as to the
actual height of the antenna structure. Therefore, Concilio's
failure to meet the lighting and posting requirements for its
tower resulted from its failure to have accurate knowledge of its
operations and to apply the rules correctly.
7. Concilio contends that the $15,000 forfeiture
amount imposed in this case is excessive. Concilio cites Charter
Communications, 17 FCC Rcd 7310 (Enf. Bur. 2002), in which the
Enforcement Bureau imposed forfeitures totaling $10,000 on three
subsidiaries of Charter Communications for violations of Sections
17.4(g) and 17.57 of the Rules. That case is inapposite because,
unlike this case, it did not include a tower lighting violation
(Section 17.51 of the Rules). As indicated in the NAL, the San
Juan Office calculated the $15,000 forfeiture amount by combining
the following base forfeiture amounts: $10,000 for the lighting
violation,7 $3,000 for failure to file a required form8 and
$2,000 for failure to post the ASR number.9 We conclude that
$15,000 is the proper forfeiture amount.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Communications Act of 1934, as amended (``Act''),10
and Section 1.106 of the Rules,11 Concilio's petition for
reconsideration of the October 3, 2002, Forfeiture Order IS
DENIED and the issuance of the $15,000 forfeiture IS AFFIRMED.
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.12
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. 20554.13
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 00984, and to its attorney,
John A. Borsari, Esq., at Borsari & Associates, PLC, P.O. Box 29,
Arlington, Virginia 22210.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 17 FCC Rcd 19132 (Enf. Bur. 2002)
2 47 C.F.R. § 17.4(g).
3 47 C.F.R. §§ 17.51 and 17.57.
4 Gomez is the former licensee of WRSJ(AM). The license was
assigned to Concilio on December 4, 1996.
5 Antenna structures whose overall height above the ground is
less than 200 feet are not subject to the Commission's
registration, lighting and marking requirements. See 47 C.F.R.
§§ 17.4, 17.7 and 17.21.
6 Petition for Reconsideration, p. 2.
7 47 C.F.R. § 1.80(b)(4), Note to Paragraph 4(b), Section I.
9 American Tower Corporation, 16 FCC Rcd 1282 (2001).
10 47 U.S.C. § 405.
11 47 C.F.R. § 1.106.
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.