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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Clamor Broadcasting Network, ) File No. EB-03-SJ-019
Inc. ) NAL/Acct. No. 200332680004
Owner of Antenna Structure ) FRN 0008-4033-88
located atop of the )
Atlantico Condominium of
Naranjal Street, Levittown,
Bayamon, Puerto Rico
Adopted: July 26, 2004 Released: July 28,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand dollars
($3,000) to Clamor Broadcasting Network, Inc. (``Clamor''),
licensee of station WKVN-FM and owner of an unregistered antenna
structure located atop of the Atlantico Condominium on Naranjal
Street, Levittown, Puerto Rico for willful and repeated violation
of Section 17.4(a) of the Commission's Rules (``Rules'').1 The
noted violation involves Clamor's failure to register its antenna
2.On April 14, 2003, the Commission's San Juan, Puerto Rico
Office (``San Juan Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Clamor in the amount of
three thousand dollars ($3,000).2 Clamor filed a response on
April 29, 2003.
2. On March 7, 2003, agents from the San Juan Office
inspected Clamor's antenna structure located atop the Atlantico
Condominium in Levittown, Puerto Rico. The antenna structure
consisted of a 120 foot tower on top of the condominium building
which resulted in the total height above ground of the antenna
structure being in excess of 200 feet. The antenna structure had
a small hand-written sign that read ``FCC Temporary Tower
Registration 1011531.'' The agents checked the Commission's
Antenna Structure Registration Database and found no record of
the indicated registration number or any record of registration
for this structure. The agents interviewed station WKVN-FM's
engineer, Rafael Cerra, who informed them that Clamor had filed a
registration application for the structure on December 30, 1996,
but Commission staff returned the application on March 19, 1997.
When it returned the registration application, Commission staff
informed Clamor that it needed a current Federal Aviation
Administration (``FAA'') clearance in order for the Commission to
register Clamor's antenna structure. On July 8, 1999, the FAA
issued a Determination of No Hazard to Air Navigation to Clamor.
At the time of the inspection, Clamor did not present any
evidence to prove that it had reapplied to register its antenna
structure at any time after the original application was returned
by the Commission. On April 14, 2003, the San Juan Office issued
a NAL to Clamor for willful and repeated violation of Section
17.4(a) of the Rules. In response, Clamor claims that it did not
willfully violate Section 17.4(a) of the Rules. Clamor also
claims that it took the FAA two years to conduct a new
aeronautical study and that it has been waiting on a response
from the Commission to its July 20, 1999 filing of an antenna
structure registration application.
3. The proposed forfeiture amount in this case 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.5 In examining Clamor'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.6
4. Section 17.4(a) of the Rules requires that the owner of
any proposed antenna structure that requires notice of proposed
construction to the FAA must register the structure with the
Commission prior to construction. Clamor is the owner of the 220
foot antenna structure for station WKVN-FM. This structure
required notice to the FAA, and thus Commission registration,
because the structure exceeded 200 feet (60.96 meters) in height
above ground.7 From at least December 30, 1996, when Clamor
unsuccessfully attempted to register its antenna structure, to
March 7, 2003, when the Commission agents inspected Clamor's
still unregistered antenna structure,8 we find that Clamor
willfully9 and repeatedly10 failed to register its antenna
structure with the Commission. Although Clamor contends that the
FAA delayed two years in granting a new aeronautical study and
that Commission staff delayed in replying to Clamor's resubmitted
antenna structure registration application in support of its
arguments that it was diligent and that the violation was not
willful, we note that Clamor did not request the aeronautical
study from the FAA until February 24, 1999,11 almost two years
after Commission staff returned Clamor's first antenna structure
registration application. Clamor's two year delay in seeking an
FAA determination resulted in its willful violation of Section
17.4(a) of the Rules. Clamor was fully aware that it needed the
aeronautical study in order to register the antenna structure.
Further, Clamor did not register its antenna structure until May
19, 2003, more than four years after the FAA study, and almost
six years after being informed by Commission staff of the actions
necessary to register the antenna structure. Moreover, Clamor
does not dispute that the violation was repeated. Finally,
although Clamor claims to have resubmitted its antenna structure
registration application to the Commission on July 20, 1999,
there is no evidence to indicate that Clamor actually did so.
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,12 Clamor Broadcasting Network, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of three thousand dollars
($3,000) for its willful and repeated failure to register its
antenna structure in violation of Section 17.4(a) 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.13
Payment may 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 reference NAL/Acct. No.
200332680004 and FRN 0008-4033-88. 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.
5. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail, Return Receipt
Requested, to Clamor Broadcasting Network, Inc., P.O. Box 40000,
Bayamon, Puerto Rico 00958-9000.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.4(a).
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332680004 (Enf. Bur., San Juan Office, April 14, 2003).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 17.7.
8 Commission records indicate that Clamor's antenna structure was
registered on May 19, 2003.
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 . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
10 As provided by 47 U.S.C. § 312(f)(2), a continuous violation
is ``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn 56 (2003).
11 Information received from the FAA indicates that Clamor
requested the aeronautical study on February 24, 1999. We also
note that the FAA issued its Determination of No Hazard on July
8, 1999, approximately four and one half months after Clamor's
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.