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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )    File No. EB-02-SJ-050
                                )
Radio X Broadcasting             )    NAL/Acct. No. 200232680008
Corporation                      )    FRN No. 0003762150
Bayamon, Puerto Rico


                  MEMORANDUM OPINION AND ORDER

Adopted:  September 22, 2004                          Released:  
September 28, 2004

By the Chief, Enforcement Bureau:


I.   INTRODUCTION

     1.   In this  Memorandum  Opinion and  Order  (``MO&O'')  we 
grant in part  and deny  in part a  Petition for  Reconsideration 
(``Petition'')  filed   on  December   10,  2003,   by  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.    Radio  X   seeks 
reconsideration  of  a   November  10,   2003  Forfeiture   Order 
(``Order''),1 in which the  Enforcement Bureau issued a  monetary 
forfeiture in the amount of twenty thousand dollars ($20,000) for 
willful  violation  of  Sections  17.50  and  73.3526(b)  of  the 
Commission's Rules  ("Rules").2   The  noted  violations  involve 
Radio X's failure to clean  and repaint its antenna structure  to 
maintain good visibility and its failure to maintain the  Station 
WXLX(FM)'s public inspection  file at the  main studio.  For  the 
reasons discussed  below, we  reduce the  monetary forfeiture  to 
sixteen thousand dollars ($16,000).

II.  BACKGROUND

     2.   On August 21, 2002, Commission agents (``agents'') from 
the  San  Juan,  Puerto  Rico  Field  Office  (``Field  Office'') 
inspected the referenced antenna  structure (or ``tower'')  owned 
by Radio  X.   The Commission's  antenna  structure  registration 
database indicates that the structure is required to be  painted.  
At the  time of  the  inspection, the  agents observed  that  the 
tower's aviation orange and white  paint was extremely faded  and 
chipped, reducing  the  visibility  of the  structure.   Also  on 
August 21,  2002, 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  subject file  was kept  at  the 
station owner's office in Bayamon, Puerto Rico, which is over 100 
miles from the city of license.  

     3.   On September  5, 2002,  the San  Juan Office  issued  a 
Notice of  Apparent Liability  for Forfeiture  (``NAL'') for  the 
antenna structure  and  public inspection  file  violations.   On 
September 19,  2002, Radio  X  submitted a  response to  the  NAL 
(``Response'').  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, 
and requested  a substantial  reduction  or cancellation  of  the 
forfeiture based on the immediate measures it took to correct the 
violations noted in the NAL.   In denying Radio X's request,  the 
Order noted  that  the  Commission  has  repeatedly  stated  that 
remedial actions taken to correct a violation are not  mitigating 
factors warranting reduction of a forfeiture.3  

     4.   Radio  X  also  sought   a  substantial  reduction   or 
cancellation of the forfeiture based  on an inability to pay  the 
forfeiture amount.  In addition to the financial statements which 
were submitted in its  response to show an  inability to pay  the 
proposed forfeiture, Radio X also supplied 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.  In looking to the totality of the  circumstances 
surrounding Radio X's  ability to pay  the forfeiture, the  Order 
noted that the parent  company's ability to  pay was relevant  in 
evaluating  the   subsidiary  company's   ability  to   pay   the 
forfeiture.4   Because  Radio  X  had  not  provided   sufficient 
information from which it could evaluate the financial  condition 
of its  parent company,  Radio  X's inability  to pay  claim  was 
denied.  The  Order concluded  that  Radio X  willfully  violated 
Sections 17.50  and  73.3526(b) of  the  Rules and  that  neither 
cancellation nor reduction  of the  proposed monetary  forfeiture 
was warranted.

III.      DISCUSSION

     5.   The forfeiture  amount in  this  case was  assessed  in 
accordance with  Section  503(b)  of the  Communications  Act  of 
1934,5 as amended (``Act''), 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 Radio X's Petition, 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  such other matters as justice  may 
require.8

     III.A.    Mitigating Factors

     6.   In  its  Petition,  Radio  X  first  asserts  that  the 
Enforcement  Bureau  failed  to   provide  an  analysis  of   the 
mitigating factors proffered  by Radio  X.  We  disagree.  As  an 
initial matter,  we  reiterate  that in  its  Response,  Radio  X 
accepted the findings of the agents concerning the violations  of 
Sections 17.50 and 73.3526(b) of the Rules.  The sole purpose  of 
the Response was an attempt to mitigate those violations.   Radio 
X proffered  two  such  mitigation factors  for  the  purpose  of 
reducing the forfeiture amount.9   As to the alleged  ``immediate 
measures'' Radio X took to  correct the violations, the  analysis 
is  summed  up  in  one   sentence,  as  stated  in  the   Order:  
``[R]emedial  actions  taken  to  correct  a  violation  are  not 
mitigating factors warranting reduction of a forfeiture.''10   As 
to Radio X's  alleged inability to  pay the proposed  forfeiture, 
the Commission has  consistently held that  the parent  company's 
ability to pay is relevant in evaluating the subsidiary company's 
ability to pay the  forfeiture.11  Radio X  did not provide  this 
key information, so its inability to pay claim was rejected.  

     III.B.    Tower Painting  

     7.   Section  17.50  of  the   Rules  states  that   antenna 
structures requiring  painting must  be cleaned  or repainted  as 
often as necessary to maintain good visibility.  Again,  although 
in its Response Radio X accepted  the findings of the agents,  it 
now challenges the determination, asserting that the frequency  a  
tower  requires  repainting  is  ``purely  subjective''  with  no 
``bright  line  test''  and  is  ``unconstitutionally  vague  and 
unenforceable on its face  and as applied.''  Radio X points  out 
that in  the past  it was  the practice  of the  Field Office  to 
provide  notice  to  tower  owners  that  their  tower   required 
repainting and to provide  a reasonable opportunity for  painting 
``prior to, and in lieu  of, assessing a forfeiture.''  We  note, 
however, that neither the Commission nor its agents are obligated 
to notify a licensee when an  inspection occurs or to provide  an 
opportunity to  cure  a  violation prior  to  issuing  an  NAL.12  
Despite Radio X's claim that it  was painting the tower in  order 
to protect  its structure  and not  ``in order  to maintain  good 
visibility [emphasis theirs],'' and its assertion that a licensee 
has some discretion as to the timing of the repainting, the field 
agent noted that the tower paint was severely faded and  provided 
poor visibility, and therefore in  violation of Section 17.50  of 
the Rules.   We find  nothing in  Radio X's  Petition to  warrant 
overturning the agent's determination.13  

     8.   Radio X  asserts that  the instant  case is  ``akin  to 
Access.1''14 in which a forfeiture was reduced due to good  faith 
and a history of  overall compliance.  Part  of this argument  is 
misplaced.15  In  Access.1,  staff determined  that  because  the 
licensee identified  the need  for, scheduled  and repainted  the 
tower prior to any  notice of the inspection  or issuance of  the 
NAL, it merited a reduction  of the proposed forfeiture based  on 
its good faith efforts  to comply with  Section 17.50.16  In  the 
instant case, Radio X operators  were present for the  inspection 
and one day later took steps to cure the violation.  Radio X does 
not merit a reduction based on a good faith effort to comply with 
the Rules.  We discuss the history of overall compliance issue in 
paragraph 12.

     9.   Radio X also seeks a reduction in the forfeiture amount 
claiming the violation did not reflect egregious misconduct,  was 
not willful or intentional and  resulted in no substantial  harm.  
First, in the NAL, we did not find that Radio X's violations rose 
to the level of egregious misconduct and as such, the  forfeiture 
amount  does  not  reflect  an  upward  adjustment  of  the  base 
forfeiture amount.  To the extent that Radio X seeks a  reduction 
of the forfeiture under  the notion that  the paint violation  is 
minor, we disagree.  A minor violation, such as lacking  posting, 
might justify  a  reduction  from  the  base  forfeiture  amount.  
However, a tower  paint violation is  not minor.  The  Commission 
has consistently stressed  that it expects  full compliance  with 
the antenna structure  rules because of  the potential danger  to 
air navigation.17  Second, Radio X `s reliance on its  definition 
of ``willfulness'' - which excludes an accidental act or omission 
- is misplaced.  The term ``willful,'' as used in Section  503(b) 
of the Act, does  not require a finding  that the rule  violation 
was intentional  or  that the  violator  was aware  that  it  was 
committing a  rule  violation.18  Rather,  the  term  ``willful'' 
simply requires that the violator  knew it was taking the  action 
in  question,  irrespective   of  any  intent   to  violate   the 
Commission's rules.19  Finally, the fact that no harm resulted is 
not a basis for lowering the forfeiture here,20 although had harm 
resulted the forfeiture might have been increased.21  In light of 
our determination  that Radio  X violated  Section 17.50  of  the 
Rules we do  not further  reduce the forfeiture  amount based  on 
Radio's arguments.  

     III.C.    Maintain public  inspection  file at  main  studio 
          73.3526(b).

     10.  Section 73.3526(b)  of  the  Rules  requires  that  the 
public inspection file must be  maintained at the main studio  of 
the station.  Although there  is a discrepancy  in the timing  of 
when the  public file  was  moved from  the  main studio  to  the 
licensee's office in  Bayamon, Puerto Rico  (over 100 miles  from 
the station's transmitter site and  city of license),22 the  Rule 
is clear.  In light of  Radio X's conscious decision to  maintain 
the public inspection  file at  its business  office in  Bayamon, 
Puerto Rico (again, over 100 miles from the station's transmitter 
site and city of  license) which it  argues is ``more  accessible 
and convenient for viewing by the public,'' we affirm the finding 
in the Order, that Radio  X's violation of Section 73.3526(b)  of 
the Rules was willful. 

     11.  Radio X  seeks  a  decrease in  the  forfeiture  amount 
because no substantial harm was  done,23 the violation was  minor 
and made in good faith.  Again, the fact that no harm resulted is 
not a basis for lowering the forfeiture here,24 although had harm 
resulted  the  forfeiture  might  have  been  increased.25    The 
Commission  has  found  that  reasonable  access  to  the  public 
inspection file  serves  the important  purpose  of  facilitating 
citizen monitoring of a station's operations and public  interest 
performance  and  fostering  community  involvement  with   local 
stations, thus helping to ensure that stations are responsive  to 
the needs and  interests of their  local communities.26  Radio  X 
moved the subject file from its  main studio to a location  other 
than the main studio in 1998 and that file was not returned until 
2002, after agents informed it of the violation.  The public file 
violation  was  clearly  not  minor  and  no  reduction  in   the 
forfeiture amount is warranted.  

     III.D.    Overall Compliance and Inability to Pay

     12.  Radio X  seeks a  reduction  in the  forfeiture  amount 
because it has  not previously  been found to  have violated  the 
Rules.  We  have  confirmed  that  Radio  X  has  a  history   of 
compliance, and  find  that  a reduction  of  the  forfeiture  to 
sixteen  thousand  dollars  ($16,000)  is  appropriate.   In  its 
Petition, Radio X again raises the issue of inability to pay, but 
adds nothing  that  would  permit  us  to  approve  its  request.  
Instead of providing the pivotal documents that we seek, Radio  X 
rejects the request  by arguing that  because its parent  company 
was not  required to,  but merely  chose to  make ``certain  cash 
payments'' on behalf  of Radio  X,'' that  the requested  balance 
sheets are  not relevant  as evidence  of inability  to pay.   We 
disagree.   Those  ``cash  payments''  amounted  to  all   ``cash 
transactions effectuated  during the  year 2001  and 2002.''   We 
reject Radio X's claim of inability to pay.

     III.E.    Conclusion

     13.  We have  examined Radio  X's Petition  pursuant to  the 
statutory factors  above  and  in  conjunction  with  the  Policy 
Statement as well.   As a  result of  our review,  we affirm  the 
Order's conclusion that Radio X willfully violated Sections 17.50 
and 73.3526(b) of the Rules.  

IV.  ORDERING CLAUSES

     14.  Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
40527 of the  Act and  Section 1.106  of the  Rules,28 Radio  X's 
December 10, 2003 Petition for Reconsideration of the Enforcement 
Bureau's Forfeiture Order issued on November 10, 2003 IS  GRANTED 
IN PART AND DENIED IN PART.

     15.  IT IS ALSO ORDERED THAT, pursuant to Section 503(b)  of 
the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the  Rules,29 
Radio  X  Broadcasting  Corporation  IS  LIABLE  FOR  A  MONETARY 
FORFEITURE in the  amount of sixteen  thousand dollars  ($16,000) 
for willfully  violating Sections  17.50  and 73.3526(b)  of  the 
Rules.

     16.  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.30  
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/Acct. No. and  FRN 
No. referenced above.   Payment by  check or money  order may  be 
mailed to Forfeiture Collection Section, Finance Branch,  Federal 
Communications Commission,  P.O.  Box  73482,  Chicago,  Illinois 
60673-7482.  Payment by overnight mail may be sent to Bank One/LB 
73482, 525 West  Monroe, 8th Floor  Mailroom, Chicago, IL  60661.  
Payment by wire  transfer may  be made to  ABA Number  071000013, 
receiving bank Bank  One, and account  number 1165259.   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. 20554.31   



     17.  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  and to its counsel,  Christopher 
D. Imlay, Booth,  Freret, Imlay  & Tepper, P.C.,  14356 Cape  May 
Road, Silver Spring, Maryland 20904-6011.


                         FEDERAL COMMUNICATIONS COMMISSION
                    

                                                                  
                         David H. Solomon
                                                                 
Chief, Enforcement Bureau



_________________________

1 Radio X Broadcasting Corporation,  18 FCC Rcd 23201 (Enf.  Bur. 
2003).
2 47 C.F.R.  17.50 and 73.3526(b).
3 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).
4 See Order at 23203;  see, e.g., Forfeiture Policy Statement  at 
17158  113.
5 47 U.S.C.  503.
6 47 C.F.R.  1.80. 
7 12 FCC Rcd 17087 (1997),  recon. denied, 15 FCC Rcd 303  (1999) 
(``Forfeiture Policy Statement'').
8 47 U.S.C.  503(b)(2)(D).
9 See supra at  3-4 (immediate action corrected the violations; 
unable to pay the forfeiture).
10 See Order at 23203; see also AT&T Wireless Services, Inc.,  17 
FCC Rcd  21866,  21871  (2002)  (AT&T  Wireless);  Seawest  Yacht 
Brokers, 9 FCC  Rcd 6099 (1994);  Station KGVL, Inc.,  42 FCC  2d 
258, 259 (1973).  Nowhere in its Response or Petition did Radio X 
provide objective evidence  that the tower  painting process  was 
underway prior to  inspection (e.g.,  a written  estimate from  a 
tower painting company dated prior to August 21, 2002), except to 
say that it  was ``in  the process  of obtaining  bids'' for  the 
project.  
11 See, e.g., Forfeiture Policy Statement at 17158  113.
12 See AT&T  Wireless, 17  FCC Rcd at  21871 n.  20 (enforcing  a 
forfeiture issued  without  a  Notice of  Violation).   See  also 
Missouri RSA, 18 FCC Rcd  12653, 12654 (Enf. Bur. 2003)  (Nothing 
in the  Communications Act  or Rules  entitles a  licensee to  an 
opportunity to correct a  violation prior to  the issuance of  an 
NAL.  Licensees  cannot  expect  simply to  sit  back  and  await 
Commission findings of violations before taking appropriate steps 
to ensure compliance with Commission rules.''). 
13 See William L.  Needham and Lucille Needham,  18 FCC Rcd  5521 
(Enf. Bur. 2002) (upholding the field agent's determination  that 
the tower's painted bands were not clearly visible, despite tower 
owner's assertion  that  it  had  no  difficulty  discerning  the 
painted bands and maintained a painting schedule for the tower).   
14 Access.1 Communications Corp.-NY, 18 FCC Rcd. 22289 (Enf. Bur. 
2003).
15 Radio  X's  claim  of  a  history  of  overall  compliance  is 
addressed in para. 12.
16 See Radio One Licenses, Inc., 18 FCC Rcd 15964 (2003).
17 See SpectraSite Communications Inc., 17 FCC Rcd. 7884 (2002).
18 47 U.S.C.  312(f)(1).  
19 Id.  
20 See AGM-Nevada, LLC, 18 FCC Rcd 1476, 1478-79 (Enf. Bur. 2003) 
(``AGM-Nevada'') (finding that  absence of a  showing of harm  to 
the public interest did not entitle a licensee to a reduction  of 
the proposed forfeiture).
21 See Forfeiture Policy Statement, 12 FCC Rcd at 17100-17101.
22 Radio  X explains  that it  moved  the public  file -  out  of 
concern for its safety - to  its studios in Bayamon, Puerto  Rico 
at the time of Hurricane Georges.
23 See 47 U.S.C. 503(b)(2)(D).
24 See AGM-Nevada, 18 FCC Rcd at 1478-79.
25 See Forfeiture Policy Statement, 12 FCC Rcd at 17100-17101.
26 Review of the Commission's Rules Regarding the Main Studio and 
Local Public Inspection Files  of Broadcast Television and  Radio 
Stations, 13 FCC Rcd. 15691, 15700 (1998).
27 47 U.S.C.  405.
28 47 C.F.R.  1.106.
29 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
30  47 U.S.C.  504(a).
31 See 47 C.F.R.  1.1914.