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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 NAL/Acct. No. 200232680008
Bayamon, Puerto Rico FRN 0003762150
MEMORANDUM OPINION AND ORDER
Adopted: October 10, 2006 Released: October 17, 2006
By the Commission:
1. By this Memorandum Opinion and Order ("Order"), we deny the
Application for Review, filed on October 26, 2004 by Radio X
Broadcasting Corporation ("Radio X"), licensee of FM Broadcast Station
WXLX, Lajas, Puerto Rico, and owner of antenna structure number
1043256, Cabo Rojo, Puerto Rico, of the Enforcement Bureau's
("Bureau") Memorandum Opinion and Order ("Bureau Order"), released
September 28, 2004. In affirming willful violations of Sections 17.50
and 73.3526(b) of the Commission's Rules ("Rules"), the Bureau Order
granted in part and denied in part Radio X's Petition for
Reconsideration of a Bureau Forfeiture Order, and reduced the monetary
forfeiture from twenty thousand dollars ($20,000) to sixteen thousand
dollars ($16,000). The noted violations involved Radio X's failure to
clean or repaint its antenna structure to maintain good visibility and
its failure to maintain Station WXLX's public inspection file at the
2. On September 5, 2002, the San Juan, Puerto Rico Field Office ("Field
Office") issued a Notice of Apparent Liability for Forfeiture ("NAL")
to Radio X in the amount of $20,000 for the antenna structure and
public inspection file violations observed during an August 21, 2002
inspection by Commission agents ("agents") from the Field Office. At
the time of the inspection, the agents observed that the aviation
orange and white paint for Radio X's tower was extremely faded and
chipped, thereby reducing the visibility of the antenna structure, and
that when inspecting WXLX's main studio, the public inspection file
was not available for inspection.
3. On September 19, 2002, Radio X submitted a response to the NAL
("Response") which accepted the findings of the Field Office regarding
both the condition of the antenna structure and the location of the
public inspection file. Radio X also requested a substantial reduction
or cancellation of the forfeiture based on the immediate measures it
took to correct the violations noted in the NAL and due to an
inability to pay claim. On November 10, 2003, a Forfeiture Order was
released, wherein Radio X's request was denied by the Bureau. In the
Forfeiture Order, the Bureau noted that the Commission has repeatedly
stated that remedial actions taken to correct a violation are not
mitigating factors warranting reduction of a forfeiture. Additionally,
based on Radio X's Response that "all payments" during 2001 and 2000
were made by its parent company, the Forfeiture Order noted that the
parent company's ability to pay was relevant in evaluating the
subsidiary company's ability to pay the forfeiture. Because Radio X
had not provided sufficient information from which the Bureau could
evaluate the financial condition of its parent company, Radio X's
inability to pay claim was denied. In issuing the $20,000 forfeiture,
the Forfeiture 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
4. In its December 10, 2003 Petition for Reconsideration of the
Forfeiture Order, Radio X asserted that the Bureau failed to provide
analysis of the mitigating factors that it presented; that the
determination as to when a tower requires repainting is "purely
subjective" with no "bright line test" and is "unconstitutionally
vague and unenforceable on its face as applied"; that its case is
"akin to that of Access.1" where a tower forfeiture was reduced due to
good faith and a history of overall compliance; that it should receive
a reduction because the violation did not reflect egregious misconduct
and was neither willful nor intentional and resulted in no substantial
harm; that it has a history of compliance; and that its inability to
pay claim should be upheld as its parent company voluntarily made
payments on its behalf and was not required to do so. The Bureau found
all but one of these arguments to be without merit. Finding that Radio
X did possess a history of compliance the Bureau Order reduced the
$20,000 forfeiture amount to $16,000 and denied the Petition for
Reconsideration in all other respects.
5. In its Application for Review, Radio X merely reiterates, largely
verbatim, past arguments raised in its Petition for Reconsideration.
We find that these arguments were fully and correctly addressed by the
Bureau Order except to the extent that we take the opportunity to
further elaborate on issues raised.
A. Tower Painting Violation
6. Section 303(q) of the Communications Act of 1934, as amended ("Act")
grants the Commission authority to oversee antenna structure painting
requirements. Section 303(q) of the Act is codified in Part 17 of the
Rules. 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. The Commission has consistently stressed
the importance of compliance with antenna structure rules in light of
air safety concerns. Moreover, the Commission routinely gives its
field agents deference concerning whether an entity violates these
7. As an initial matter, we note that in its Response to the NAL, Radio X
- by way of Robert Davila, its President - accepted all the findings
of the Field Office pertaining to the tower painting Rule violation.
However, in subsequent pleadings Radio X challenged those
8. In its Application for Review, Radio X again contends that the tower
painting requirements found in Section 17.50 of the Rules are "overly
vague, completely subjective, and it is unreasonable to assess a
forfeiture in this instance without prior notice. . ." It further
suggests that before issuing an NAL the Field Office should advise a
tower owner of its need to repaint. In addition to the Bureau's
previous response to these arguments, we emphasize that the tower
painting specifications are found in Section 17.23 of the Rules. That
Rule amplifies the general requirements of Section 17.50 of the Rules.
According to Section 17.23 of the Rules, antenna structures "must"
conform to the painting requirements referenced in the Federal
Aviation Administration's ("FAA") Advisory Circular, entitled
"Obstruction Marking and Lighting." Thus, the requirements are set
forth and the burden is on the tower owner, not the Field Office, to
ensure compliance with those requirements.
9. Radio X further asserts that the tower did not need to be painted "in
order to maintain visibility because it remained visible" and that no
tower violation occurred. Radio X avers that the tower is located at a
"high, extremely visible location and is . . . highly visible to any
objective analysis." Radio X states that the appropriate visibility in
this setting is also supported by its assertion that it has received
no complaints from general aviation interests or the FAA, and that
Puerto Rico is a tropical location where there is no fog or other
inclement weather that would obscure the visibility of the tower in
the daytime. We are not persuaded. Tower visibility is a critical
issue to air safety. The Commission's standards are not modified by
the nature of the environment in which the tower is located. Rather,
the subject Rules must be enforced, consistent with the requirements
of Section 17.50 of the Rules. In that regard, the tower must be
painted and lit in accordance with its antenna structure registration
in order to be considered visible under Section 17.50 of the Rules.
10. Radio X argues again that because it did not find that the tower
required repainting in order to maintain visibility, its omission was
not "willful." We disagree. The issue of whether the violation was
"willful" was previously fully and correctly discussed and rejected.
The term "willful," as defined in Section 312(f)(1) of the Act, does
not require a finding that Radio X intended to violate the Rule.
Rather, the definition requires a finding of a "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. Radio X chose to delay repainting the
tower until after it was informed by the agent's inspection of the
painting violation. As discussed below, Radio X also seeks good faith
credit for its alleged efforts to arrange for the tower's painting
prior to the inspection, albeit not for the purpose of complying with
Section 17.50 of the Rules, but to preserve and protect the antenna
structure due to the "effects of the tropical sun on the tower paint."
Yet at the same time, Radio X does not want this very knowledge of the
need to repaint the subject tower to be attributed to it on the issue
of willful non-compliance with the Commission's tower painting Rules.
(Neither Section 17.50 nor 17.23 of the Rules distinguishes between
the need to repaint due to fading and the need to repaint due to
fading and/or chipping.) Radio X cannot have it both ways. The fact
that the tower needed painting prior to the inspection - for whatever
reason at the time of the inspection - demonstrates that the violation
11. Radio X asserts that its prompt action to comply with the Commission's
decision subsequent to the inspection is sufficient for a good faith
reduction in the forfeiture amount. As the Bureau previously correctly
noted, a forfeiture reduction for good faith efforts is not warranted
where the tower owner does not take concrete steps to correct or
remedy a violation until after a field inspection. Radio X's
submissions show that it did not take concrete steps to repaint its
tower until after the inspection on August 21, 2002, despite its
admitted prior knowledge that repainting was warranted. Radio X claims
that, prior to the inspection it "was evaluating the alternatives of
new paint or strobe lighting" and "had solicited bids for each
option." Radio X provides no evidence of these efforts. In any event,
we find that such efforts are not sufficient to warrant a reduction.
12. Radio X again argues that the base forfeiture of ten thousand dollars
($10,000) for each violation was "erroneously asserted." Radio X
submits that the base forfeiture amount of $10,000 applies to a tower
that is not painted at all, and that "a subjective determination ...
that the paint was so faded and/or chipped so as to reduce visibility
is subject to no objective criteria, and is not ... equivalent to a
failure to comply with painting and lighting requirements." Radio X
states further that the violation is "unconstitutionally vague and
unenforceable on its face and as applied." We disagree. Neither the
tower painting Rule set forth in Section 17.50 of the Rules, nor the
forfeiture amount set forth in Section 1.80(b)(4) of the Rules
distinguishes between a painted or an unpainted antenna structure, and
in both cases the base forfeiture amount of $10,000 is the starting
point from which the forfeiture amount is derived. The Commission has
explained that forfeiture amounts reflect "the degree of harm or
potential for harm that may arise from the violation." As previously
discussed, no tower paint violation is minor. The Commission has
consistently stressed that it expects full compliance with the antenna
structure rules because of the potential danger to air navigation. The
agent's observations of the tower were consistent with established
procedure and he correctly determined, based on his observations and
experience, that the antenna structure paint was clearly and obviously
chipped and the paint faded: "[T]he tower's aviation orange and white
paint was extremely faded and chipped, reducing the visibility of the
structure." This finding, which establishes noncompliance with the
requirements of Section 17.50 of the Rules, fully supports the
forfeiture amount. The key here is the visibility of the tower per
our rules, and not whether it had ever been painted (though an
unpainted tower may form the basis for an upward adjustment of the
forfeiture amount if such a violation was determined to be egregious
or intentional). Moreover, we disagree with Radio X's assertion that
the determination as to when a tower requires repainting is "purely
subjective" and is "unconstitutionally vague and unenforceable on its
face as applied." As previously discussed, Sections 17.50 and 17.23 of
the Rules clearly set forth the tower painting requirements for tower
A. Maintain Public Inspection File at Main Studio
13. The main studio and public inspection file rules are rooted in Section
307(b) of the Act and codified in Part 73 of the Rules. Section
73.3526(b) of the Rules states that the public inspection file must be
maintained at the main studio of the station. 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.
14. We again note that in its Response to the Bureau's NAL, Radio X - by
way of Robert Davila, its President - accepted all the findings of the
Field Office pertaining to the public inspection file Rule violation.
Those facts remain undisputed.
15. Radio X concedes to the public inspection file Rule violation.
However, Radio X again seeks a reduction in the forfeiture amount
because it again claims that no substantial harm was done, the
violation was minor and the mistake was made in good faith. These
arguments were fully analyzed and rejected in the Bureau Order. Radio
X argues that "the forfeiture assessed is the same as if there had
been no public inspection file at all." In addition to the Bureau's
previous response to Radio X's arguments concerning the public
inspection file Rule violation, we note that the instant argument
parallels Radio X's logic about the forfeiture amount assessed for the
tower painting violation, and has the same weakness. Radio X submits
that the base forfeiture amount of $10,000 applies where there is no
public inspection file at all, and not where a public inspection file
exists but is located in the wrong location. Neither the public
inspection file Rule set forth in Section 73.3526(b) of the Rules nor
the forfeiture amount set forth in Section 1.80(b)(4) of the Rules
distinguishes between whether a public inspection file exists or
whether it is not located in accordance with the Rules. In both cases,
the base forfeiture amount of $10,000 is the starting point from which
the forfeiture amount is derived. We emphasize that Radio X's public
inspection file was not only absent from its main studio, it was also
located over one hundred miles from the station's transmitter site and
city of license. Thus, a visitor to the main studio could not have
examined it, whether or not it existed. As to the nature of the steps
Radio X took to cure the subject Rule violation subsequent to the
Field Office inspection, we repeat that remedial actions taken to
correct a violation after notice by the agency are not mitigating
factors warranting the reduction of a forfeiture, and affirm the
A. Inability to Pay
16. In assessing forfeiture amounts, Section 503(b)(2)(D) of the Act and
Section 1.80(b)(4) of the Rules, require that the Commission take into
account, among other things, the violator's ability to pay and such
other matters as justice may require. A successful claim of inability
to pay requires supporting financial documentation.
17. Radio X again asserts that the forfeiture amount should be reduced
because of its inability to pay it, and again challenges the Bureau's
request for financial statements from its parent company (which it did
not submit). Radio X acknowledges that "as a general principle the
Commission may look at parent companies as part of the `totality of
circumstances'," but it believes that "there is in this case no
obligation of the parent company to make any payments on behalf of
Radio X, and the Commission cannot by its policies create one." Radio
X emphasizes that the parent company voluntarily chose to make "all
payments" for Radio X during the years 2000 and 2001, and asserts that
the parent company was under no obligation to do so. Consequently,
Radio X argues that the parent company's balance sheets are not
relevant as evidence of Radio X's inability to pay the forfeiture
amount. We disagree with respect to the relevancy of such information.
18. The Bureau has correctly explained in this matter, and Radio X has
acknowledged, that when a violator asserts an inability to pay a
forfeiture amount relative to its financial situation, the Commission
has the authority to look at the totality of the violator's particular
financial circumstances in evaluating that claim. In that regard, the
Commission has looked to potential sources of income available to a
violator when considering a violator's ability to pay a forfeiture.
Moreover, where a violator is a subsidiary, "[t]he parent company's
ability to pay . . . is relevant in evaluating the subsidiary
company's ability to pay the forfeiture."
19. In this case, Radio X is a wholly owned subsidiary of RAAD
Broadcasting Corporation. Radio X submitted financial statements
indicating that its parent company made "all payments" for it during
2000 and 2001. In addition, the parent company is apparently obligated
on debt incurred to finance Radio X's operations. Under these
circumstances, we cannot fully evaluate Radio X's ability to pay the
forfeiture, including all of its potential sources of income, without
evaluating the financial condition of its parent company. In spite of
the relevance of this information, Radio X has refused to submit its
parent company's financial documents, arguing that "there is in this
case no obligation of the parent company to make any payments on
behalf of Radio X, and the Commission cannot by its policies create
one." The Commission does not seek, however, to impose any obligation
on Radio X's parent company. It only seeks to evaluate, in light of
Radio X's request for a reduction in the forfeiture due its claimed
inability to pay it, the totality of its financial situation,
including all of its potential sources of income. In setting an
appropriate forfeiture amount, we are guided by Congress's stated goal
of imposing forfeitures that are "sufficiently high to deter
violations and constitute a meaningful sanction." We note that if a
corporation could escape meaningful sanctions for violations of the
Communications Act and our rules simply by setting up an
undercapitalized subsidiary and funneling money through it to fund its
operations, it would be in a position to undermine the remedial
purpose of Section 503 of the Act. Therefore, in the absence of
financial statements of the parent company, we affirm the Bureau's
conclusion that we do not have sufficient information from which to
evaluate Radio X's claim, and must therefore reject its inability to
IV. ordering clauses
20. Accordingly, IT IS ORDERED that, pursuant to Section 1.115 of the
Rules, the Application for Review filed by Radio X Broadcasting
Corporation of the Enforcement Bureau's Memorandum Opinion and Order
for the NAL/Acct. referenced above IS DENIED.
21. IT IS ALSO ORDERED THAT, pursuant to Section 503(b) of the Act and
Section 1.80(f)(4) of the Rules, Radio X Broadcasting Corporation IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $16,000 for
willfully violating Sections 17.50 and 73.3526(b) of the Rules.
22. 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: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.
23. IT IS FURTHER ORDERED that copies 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,
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Application for Review (filed October 26, 2004).
Radio X Broadcasting Corporation, 19 FCC Rcd 18690 (Enf. Bur. 2004)
47 C.F.R. SS 17.50 and 73.3526(b).
Petition for Reconsideration (filed December 10, 2003).
Radio X Broadcasting Corporation, 18 FCC Rcd 23201 (Enf. Bur. 2003)
Notice of Apparent Liability for Forfeiture, NAL Acct. No. 200232680008
(Enf. Bur., San Juan Office, released September 5, 2002) ("NAL").
The Commission's antenna structure registration database indicates that
the tower is required to be painted.
NAL at 1. 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.
Forfeiture Order at 23201 (citing AT&T Wireless Services, Inc., 17 FCC Rcd
21866, 21871 (2002) ("AT&T Wireless"); Seawest Yacht Brokers, 9 FCC Rcd
6099, 6099 (1994) ("Seawest Yacht Brokers"); Station KGVL, Inc., 42 FCC 2d
258, 259 (1973)("KGVL").
Response attachment, "Radio X Broadcasting Corporation Financial
Statements December 2001 and 2000."
Forfeiture Order at 23203.
But see P 3.
Access.1 Communications Corp.-NY, 18 FCC Rcd 22289 (Enf. Bur. 2003)
47 U.S.C. S 303(q).
See SpectraSite Communications, 18 FCC Rcd 22799 (2002) ("SpectraSite")
(stressing the importance of compliance with antenna structure rules in
light of air safety considerations); see AT&T Wireless at 21866 (stressing
the importance of compliance with antenna structure rules in light of air
See Access.1 at 22292 (upholding the field agent's finding of inadequate
visibility, despite the tower owner's assertion that the tower complied
with the Rules); William L. Needham and Lucille Needham, 18 FCC Rcd 5521
(Enf. Bur. 2002) ("Needham") (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).
Letter from Roberto Davila, President, Radio X Broadcasting Corporation
WXLX-FM, to Enforcement Bureau-Technical & Public Safety Division (now
"Spectrum Enforcement Division") (Sept. 13, 2002).
See Application for Review at 4.
See Bureau Order at 18692.
47 C.F.R. S 17.23.
Radio X's antenna structure registration requires it to comply with FAA
marking guidelines, chapters 3, 4, 5 and 9. The Advisory Circular explains
that tower marking:
. . . is done to warn pilots on a potential collision course with a
structure of its presence during daylight hours. . . . The chromaticity
and luminance standards of aviation orange and white paint should conform
to Federal Standard FED-STD-595. . . . However, all outdoor paints
deteriorate with time. While it is not practical to give a maintenance
schedule for all climates, surfaces should be repainted whenever the color
changes noticeably or its effectiveness is reduced by scaling, oxidation,
or chipping. An orange color tolerance chart is available upon request . .
. for determining when repainting is required (emphasis added).
FAA Paint and Light Advisory Circular, "FAA Standards for Obstruction
Marking and Lighting," No. 70/7460-1G at i, 5 (1985).
See Application for Review at 5.
Id. at 5-6.
Id. at 6.
See n.15, supra.
See Bureau Order at 18692; see n.16, supra.
Application for Review at 7. Radio X argues that "[W]illfulness exists if
there is a voluntary act or omission in that a person knew that he was
doing the act in question as opposed to the act being accidental."
47 U.S.C. S 312(f)(1).
Bureau Order at 18693.
See Application for Review at 6.
See Cumulus Licensing Corp., 19 FCC Rcd 24815 (Enf. Bur. 2004) (antenna
structures that were not painted since the 1950's were found to violate
Section 17.50 of the Rules; tower owner only began to assess the condition
of the towers after the inspection), recon. denied, 21 FCC Rcd 1032 (Enf.
Bur. 2006); Madison Broadcasting, 17 FCC Rcd 16081 (Enf. Bur. 2002) (tower
painting rules require owners to clean and repaint antenna structures as
often as necessary to maintain good visibility, and a tower owner which
fails to take such steps is in willful violation of these Rules).
See Sutro Corporation, 19 FCC Rcd 15274, 15276 (2004) ("Sutro")
(Commission affirmed Bureau's determination that correction of a tower
violation after being notified by Commission staff does not warrant
Application for Review at 6.
See AT&T Wireless at 21870 (remedial action to correct tower painting
violation was not a mitigating factor warranting reduction of forfeiture);
Seawest Yacht Brokers at 6099 (corrective action taken to comply with the
Rules is expected, and does not mitigate any prior forfeitures or
violations); TCI Cablevision of Maryland, 7 FCC Rcd 6013, 6014 (1992)
(basing mitigation of a forfeiture upon corrective action taken subsequent
to the misconduct upon which liability is based would tend to encourage
remedial rather than preventive action) citing International Broadcast
Corp., 19 FCC 2d 793, 794 (1969); KGVL at 259 (licensees not excused for
past violations by reason of subsequent corrective action); cf. A-O
Broadcasting Corporation, 20 FCC Rcd 756, 761 (2005) ("A-O Broadcasting")
(because licensee showed good faith by obtaining EAS equipment and
starting constructing a main studio before the inspection, the forfeiture
was reduced); Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 P 4
(2003), recon. denied, 18 FCC Rcd 25481 (2003) (reducing a forfeiture from
$9,200 to $8,000 for EAS violations because the licensee had identified
the problems and had ordered replacement equipment prior to the Field
Office's on-site inspection).
Application for Review at 3.
Id. at 8.
47 C.F.R. S 1.80(b)(4) ("Guidelines for Assessing Forfeitures, Section I
Base Amounts for Section 503 Forfeitures). The Forfeiture Guidelines
established a $10,000 forfeiture amount for "Failure to comply with
prescribed lighting and/or marking."
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"); see, e.g., Bureau Order at 18693.
See Bureau Order at 18693 citing to SpectraSite at 7884 (stressing the
importance of full compliance with antenna structure rules).
Moreover, Radio X asserts that even if there was a violation in this case,
"it was at most a `minor' violation." Radio X's argument is misplaced.
With regard to tower violations, there are none that are minor. To the
extent that this issue was raised earlier, the argument was fully and
correctly discussed and rejected. See Bureau Order at 18693.
See Bureau Order at 18690.
To the extent that Radio X avers that the instant case is "akin to
Access.1 Communications," the Bureau previously fully and correctly
discussed and rejected this argument. See, e.g., Bureau Order at 18692.
Nor, as Radio X argues, is this case comparable to Midwest Tower Partners,
L.L.C., 18 FCC Rcd 12,921 (2003), where a $10,000 forfeiture was deleted
because the Bureau determined that there was no evidence that the cables
obstructed the view of the tower. In the instant case, the Bureau, on
reconsideration, affirmed its finding that the tower painting did not
comply with the Rules.
See 47 C.F.R. S 1.80(b)(4) Note ("Guidelines for Assessing Forfeitures,
Section I - Base Amounts for Forfeitures"); see also Forfeiture Policy
Statement, 12 FCC Rcd 17087, 17113-15 (1997), recon. denied, 15 FCC Rcd
47 U.S.C. S 307.
This Rule was modified in 1998 to provide, among other things, more
flexibility regarding the location of a radio station's public inspection
files. Licensees were required to provide ready access to those files.
Review of the Commission's Rules Regarding the Main Studio Rule and Local
Public Inspection Files of Broadcast Television and Radio Stations, 13 FCC
Rcd 15691 (1998).
Id. at 15700.
See para. 3, supra.
Bureau Order at 18694.
Application for Review at 12.
Bureau Order at 18693.
See para. 12, supra.
Application for Review at 12.
See 47 C.F.R. S 1.80 (b)(4) Note "Guidelines for Assessing Forfeitures,
Section I - Base Amounts for Forfeitures" see also Forfeiture Policy
Statement, 12 FCC Rcd 17087, 17113-15 (1997), recon. denied, 15 FCC Rcd
303 (1999) (establishes a $10,000 forfeiture for violations of the public
inspection file Rules and the location of those files). Violation of
public inspection file Rules: See EICB-TV, 19 FCC Rcd 18611, 18611 (Enf.
Bur. 2004) ($10,000 forfeiture for public inspection file missing required
items; later reduced by successful showing of inability to pay
forfeiture); Trade Center Management, Inc., 19 FCC Rcd 6287 (Enf. Bur.
2004) ($10,000 forfeiture for failure to maintain public inspection file
where many documents required for public inspection file were kept among
other files in a cabinet at the main studio; reduced for history of
overall compliance), recon. denied, 20 FCC Rcd 10884 (Acting Chief, Enf.
Bur. 2005); Public inspection file location violations: FNX Broadcasting,
LLC, 19 FCC Rcd 13205, 13207 (Enf. Bur. 2004) ($10,000 forfeiture for
public inspection file located at corporate office--not main studio;
reduced for history of overall compliance); B&C Kentucky, LLC, 16 FCC Rcd
9305, 9310 (Video Serv. Div. 2001) ($10,000 forfeiture for location
violation of public inspection file located at library--not main studio).
See n.9, supra.
Bureau Order at 18692.
47 C.F.R. S 1.80(b)(4).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 P 8 (1992)
("PJB Communications"); see also Forfeiture Policy Statement at 17106-07 P
Application for Review at 13.
Forfeiture Order at 23203 P 7. See also Forfeiture Policy Statement at
17158 P 113 ("As for forfeitures that a licensee believes it cannot afford
to pay relative to its financial situation, we must look to the totality
of the circumstances surrounding the individual case.").
See e.g. A-O Broadcasting at 761 (financial indicators other than a
violator's gross revenues are permitted in determining its ability to
pay); KASA Radio Hogar, 17 FCC Rcd 6256, 6258-59 (2002) (it is appropriate
to consider other income to determine whether the violator, in general "is
financially capable of paying a forfeiture, not whether financial data
from a limited portion of its operations can sustain a forfeiture").
See Forfeiture Policy Statement at 17158 P 113. See also ACR Electronics,
19 FCC Rcd 22293, 22303, n.62 (2004) (in determining a proposed forfeiture
amount, the Commission considered parent company revenue in determining
the subsidiary's ability to pay a forfeiture), forfeiture ordered, FCC
06-37 (rel. Mar. 23, 2006); Dobson Cellular Systems, Inc. and American
Cellular Corporation, FCC 06-48 P 59 (rel. Apr. 18, 2006) (the parent
company's size and revenues considered by the Commission in determining
the proposed forfeiture amount for the subsidiaries).
Ownership Report for Commercial Broadcast Stations, filed by Radio X
Broadcasting Co., September 27, 1999 (FCC Form 323); Letter from Roberto
Davila Rodriguez, President, RAAD Broadcasting Corp., to Federal
Communications Commission (Sept. 27, 2001)(Certification of No Change in
See Application for Review at 14.
Id. at 13.
S. Rep. No. 580, 95^th Cong. 1^st Sess. 3 (1978), reprinted in 1978
U.S.C.C.A.N. 109, 111.
See A-O Broadcasting at 762.
47 C.F.R. SS 0.111, 0.311, and 1.80(f)(4).
47 U.S.C. S 504(a).
47 C.F.R. S 1.1914.
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Federal Communications Commission FCC 06-151
Federal Communications Commission FCC 06-151