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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-SJ-050
Radio X Broadcasting Corporation)
Bayamon, Puerto Rico ) NAL/Acct. No.
) FRN 0003762150
Adopted: November 6, 2003 Released: November
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twenty thousand dollars
($20,000), to Radio X Broadcasting Corporation (``Radio X''),
licensee of Station WXLX(FM), Lajas, Puerto Rico, and owner of
antenna structure number 1043256, Cabo Rojo, Puerto Rico, for
willful violation of Sections 17.50 and 73.3526(b) of the
Commission's Rules ("Rules").1 The noted violations involve
Radio X's failure to clean and repaint it antenna structure to
maintain good visibility and its failure to maintain the Station
WXLX(FM)'s public inspection file at the main studio.
2. On September 5, 2002, the Commission's San Juan, Puerto
Rico Resident Agent Office ("San Juan Office") issued a Notice of
Apparent Liability for Forfeiture ("NAL")2 in the amount of
twenty thousand dollars ($20,000) to Radio X. Radio X filed a
response on September 19, 2002.
3. On August 21, 2002, Commission agents from the San Juan
Office inspected the WXLX(FM) antenna structure number
1043256 owned by Radio X. At the time of the
inspection, the agents observed that the antenna
structure's aviation orange and white paint was
extremely faded and chipped, which reduced the
visibility of the structure. The Commission's antenna
structure registration (``ASR'') database indicated
that the structure is required to be painted. Also on
August 21, 2002, Commission agents conducted an
inspection of WXLX(FM)'s main studio. The agents found
that the public inspection file was not available for
inspection. The operator on duty during the inspection
stated that the public inspection file was kept at the
station owner's office in Bayamon, Puerto Rico, which
is over 100 miles from the city of license. On
September 5, 2002, the San Juan Office issued a NAL for
the antenna structure and public inspection file
violations. On September 19, 2002, Radio X submitted a
response to the NAL. In its response, Radio X accepted
the findings of the San Juan Office regarding both the
condition of the antenna structure and the location of
the public inspection file. Nevertheless, Radio X
requests substantial reduction or cancellation of the
forfeiture citing the immediate measures it took to
correct the violations noted in the NAL. The response
is also accompanied by financial statements.
4. The proposed forfeiture amount in this case is
being was assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),3 Section 1.80
of the Rules,4 and The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Forfeiture Policy Statement''). In
examining Radio X'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
5. Section 17.50 of the Rules provides that antenna
structures requiring painting under the rules shall be cleaned or
repainted as often as necessary to maintain good visibility.
Antenna structure number 1043256, owned by Radio X, has specified
lighting and painting requirements that include painting the
structure with alternating bands of aviation orange and white.
On August 21, 2002, agents from the San Juan Office determined
that Radio X's antenna structure number 1043256 had extremely
faded and chipped aviation orange and white paint which obscured
the structure's visibility. Radio X does not dispute the agents'
finding that the antenna structure needed to be cleaned and
painted to be sufficiently visible. Indeed, Radio X acknowledges
that it was aware that its antenna structure needed to be painted
and states that it was in the process of obtaining bids to have
it painted, although it does not provide any documentation to
support this assertion. Therefore, we find that its violation of
Section 17.50 was willful.6
6. Section 73.3526(b) of the Rules requires commercial
broadcast stations to maintain a public inspection file at the
main studio of the station. On August 21, 2002, no public file
for Station WXLX(FM) was present during the agents' inspection
of the main studio. Radio X does not challenge the agents'
finding that the public inspection file was not available for
inspection. In light of Radio X's conscious decision to move the
public inspection file to a location other than the main studio,
we find that its violation of Section 73.3526(b) of the Rules was
7. Radio X does, however, request substantial reduction or
cancellation of the proposed forfeiture because it took immediate
measures to remedy the violations noted by the NAL. We note that
the Commission has repeatedly stated that remedial actions taken
to correct a violation are not mitigating factors warranting
reduction of a forfeiture.7 Finally, Radio X submits copies of
its financial statements for fiscal years 2000 and 2001 for what
we perceive to be a claim of inability to pay the proposed
forfeiture amount. To the extent that the financial statements
were submitted in an attempt by Radio X to claim an inability to
pay the proposed forfeiture, we note that it supplemented its
financial statements with a statement indicating that no cash
transactions were effectuated by Radio X during 2001 and 2000 and
that its parent company made ``all payments'' for it in those
years. We must look to the totality of the circumstances
surrounding Radio X's ability to pay the forfeiture. The parent
company's ability to pay, therefore, is relevant in evaluating
the subsidiary company's ability to pay the forfeiture.8 Because
Radio X has not provided sufficient information from which we can
evaluate the financial condition of its parent company, we must
reject its inability to pay claim.
8. We have examined Radio X's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we conclude
that Radio X willfully violated Sections 17.50 and 73.3526(b) of
the Rules and find that neither cancellation nor reduction of the
proposed monetary forfeiture is warranted.
IV. ORDERING CLAUSES
9. 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,9 Radio X Broadcasting Corporation IS LIABLE FOR A MONETARY
FORFEITURE in the amount of twenty thousand dollars ($20,000) for
willfully violating Sections 17.50 and 73.3526(b) of the Rules.
10. 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.10
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. 200232680008, and FRN 0003762150. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
11. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to Radio X Broadcasting Corporation, HC 67 Box 15390,
Bayamon, Puerto Rico 00956-9535.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 17.50 and 73.3526(b).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232680008 (Enf. Bur., San Juan Office, released September 5,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 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,'
... 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).
7 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
8 See, e.g., Forfeiture Policy Statement at 17158, para.
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 U.S.C. § 504(a).
11 See 47 C.F.R. § 1.1914.