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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:
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).
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
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
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
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
III.C. Maintain public inspection file at main studio
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.
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
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.
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
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.
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).
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.