Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
A Radio Company, Inc. )
File Number EB-05-SJ-025
Licensee of Station WEGA )
P.O. Box 1488 )
Vega Baja, PR 00694 )
Facility ID # 69853 )
Adopted: November 1, 2006 Released: November 3, 2006
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of fifteen thousand dollars ($15,000) to A Radio Company,
Inc. ("A Radio"), licensee of AM radio station WEGA in Vega Baja,
Puerto Rico, for willful violation of Sections 73.49 and 73.3526 of
the Commission's Rules ("Rules") and willful and repeated violation of
Section 73.1350(a) of the Rules. The noted violations involve A
Radio's failure to enclose an antenna tower having radio frequency
potential at the base within an effective locked fence, its failure to
make available a complete public inspection file, and its failure to
operate its station in accordance with the terms of its station
2. On August 25, 2005, in response to a complaint, resident agents from
the Commission's San Juan Office of the Enforcement Bureau ("San Juan
Office") conducted an inspection of station WEGA located in Vega Baja,
Puerto Rico. In response to a request to inspect the public file, the
station was unable to produce any copies of any issues programs lists.
The agent observed that the easternmost antenna structure, which had
radio frequency potential at its base, was not enclosed within an
effective locked fence. Moreover, the agent observed a sizable hole on
the right side of the perimeter property fence, which would allow
access to the property. Station WEGA is authorized to utilize three
uniform cross section, series excited guyed towers. Its station
authorization requires that they use a two-tower directional array
during the day and a three-tower directional array at night. The
station's consulting engineer stated that the station had been
operating its antenna system at night using the daytime directional
parameters for more than one year. The consulting engineer provided
copies of a report dated May 21, 2005 and a status report letter dated
July 11, 2005, which he had provided to the station owner and which
explicitly described problems with the equipment that switches the
directional antenna system from daytime to nighttime patterns. The
agent found no evidence that special temporary authority ("STA") had
been sought or granted, which would authorize nighttime operation
using daytime directional parameters.
3. On October 25, 2005, the Resident Agent of the San Juan Office issued
a Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$15,000 to A Radio. A Radio filed a response to the NAL dated January
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining A
Radio'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.
5. Section 73.49 of the Rules requires that antenna towers having radio
frequency potential at the base must be enclosed within effective
locked fences or other enclosures. Individual tower fences need not be
installed if the towers are contained within a protective property
fence. On July 25, 2005, an agent observed that the easternmost
antenna structure had radio frequency potential at the base and that
it was not enclosed within any fence. The agent also observed a large
hole in the right side of the perimeter property fence, which would
allow access to the antenna structure. Thus, the antenna structure was
not contained within a protective property fence.
6. In its response to the NAL, A Radio does not dispute that its tower
was not enclosed within a traditional fence and that there was a hole
in the perimeter property fence. It asserts the nearby sewage
treatment plant flooded the area, creating a swampy area around the
tower, which contains leeches and an occasional crocodile. It requests
that the forfeiture be reduced or cancelled, because this swamp serves
as an effective locked fence around the tower. It also claims it is
impossible to maintain an intact perimeter property fence because of
vandals. Although the swamp may serve as a deterrent to individuals
seeking to access the tower, it is not an "effective locked fence," as
required by the Rules. Moreover, the fact that A Radio cannot prevent
vandals from entering its property through the hole in the side of the
perimeter fence highlights the importance of having a fence around its
tower. Accordingly, we find no basis to cancel or reduce the
forfeiture associated with this violation.
7. Section 73.1350(a) of the Rules states that each licensee is
responsible for maintaining and operating its broadcast station in a
manner which complies with the technical rules set forth elsewhere in
this part and in accordance with the terms of the station
authorization. Station WEGA's authorization requires that they use a
two-tower directional array during the day and a three-tower
directional array at night. On July 25, 2005, the station's
consulting engineer informed an agent that station WEGA had been
transmitting with the directional daytime pattern at night for more
than a year.
8. In its response to the NAL, A Radio does not dispute that it operated
its station in a manner inconsistent with its station authorization
for more than a year. It states that it inherited the station in a
state of disrepair and was unaware of this particular problem until
August 2005 because its consulting agent did not forward the
consulting engineer's reports. It states once it became aware of this
problem it took prompt steps to obtain an STA. These facts, however,
provide no basis to cancel or reduce the forfeiture associated with
this violation. Employees and contractors for A Radio intentionally
operated the station on its behalf and did so in a manner inconsistent
with the station's authorization. Indeed some of its contractors had
actual knowledge that the station was operating inconsistent with the
terms of the authorization. The "Commission has long held that
licensees and other Commission regulatees are responsible for the acts
and omissions of their employees and independent contractors," and the
Commission has "consistently refused to excuse licensees from
forfeiture penalties where actions of employees or independent
contractors have resulted in violations." Moreover, corrective action
taken to come into compliance with the Rules is expected, and does not
nullify or mitigate any prior forfeitures or violations.
9. Section 73.3526(e) of the Rules requires commercial broadcast stations
to maintain for public inspection, a file containing materials listed
in that section. Section 73.3526(e)(12) requires licensees to place
in the public inspection file, for each calendar quarter, a list of
the programs that have provided the station's most significant
treatment of community issues during the preceding three month period.
Copies of these lists must be maintained in the file until final
action has been taken on the station's next renewal application. On
July 25, 2005, in response to a request to inspect the station's
public file, the station could not produce any radio issues/programs
lists, and there was no evidence that these lists had ever been in the
public file. In its response to the NAL, A Radio does not dispute the
violation and states that the station manager has been trained on
public file requirements.
10. Finally, A Radio requests that the forfeiture be reduced because it is
a new licensee and because it acquired the station in serious
disrepair. We do not find these arguments persuasive. A Radio should
have researched the station's condition prior to purchasing it and
could have insisted the previous owner correct any violations prior to
consummation of the sale. At a minimum, however, A Radio should have
determined the station's condition after it acquired it and should
have corrected any violations shortly thereafter. A Radio operated the
station for almost eight months before the date of the inspection and
failed to take steps to correct several serious violations.
11. We have examined A Radio's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that A Radio
willfully violated Sections 73.49 and 73.3526 of the Rules and
willfully and repeatedly violated Section 73.1350(a) of the Rules. We
find no basis for cancellation or reduction of the $15,000 forfeiture
proposed for these violations.
IV. ORDERING CLAUSES
12. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, A Radio Company, Inc. IS LIABLE
FOR A MONETARY FORFEITURE in the amount of $15,000 for violation of
Sections 73.49, 73.1350(a) and 73.3526 of the Rules.
13. 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. 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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to A Radio
Company, Inc. at its address of record; and an additional copy to A
Radio's legal counsel, Audrey Rasmussen, Hall Estell Attorneys at Law,
1120 20^th St. NW, Suite 700, North Building, Washington, DC
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. SS 73.49, 73.1350(a), 73.3526.
Station WEGA submitted a request for special temporary authority on
September 2, 2005 to operate with one non-directional antenna.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632680001
(Enf. Bur., San Juan Office, released October 25, 2005).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 U.S.C. S 503(b)(2)(D).
The agents did note that the area surrounding the tower was flooded.
However, they did not see leeches or crocodiles during their inspection on
July 25, 2005.
See Pittman Broadcasting Services, LLC, 19 FCC Rcd 15320, 15322 (Enf. Bur.
2004) (determining that marshy conditions or other "natural barriers" are
not sufficient to constitute compliance with Section 73.49).
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863,-64, para. 7 (2002); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34 (1991)(holding that a company's reliance on an independent
contractor to construct a tower in compliance of FCC rules does not excuse
that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
for violations of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248 (Enf. Bur. 2004)
(holding a licensee liable for its employee's failure to conduct weekly
EAS tests and to maintain the "issues/programs" list).
American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf. Div.,
Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, 96 FCC 2d
1235, 1244 (1984).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
47 C.F.R. S 73.3526(e).
47 C.F.R. S 73.3526(e)(12).
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 73.49, 73.1350(a), 73.3526.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-2259
Federal Communications Commission DA 06-2259