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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Southern New Mexico Radio ) File Number: EB-07-DV-122
) NAL/Acct. No.: 200732800009
Licensee of Station WPXT310
) FRN: 0005836226
Alamogordo, New Mexico
Adopted: May 19, 2008 Released: May 21, 2008
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eight hundred dollars ($800) to Southern New Mexico
Radio Foundation ("Southern"), licensee of station WPXT310 in
Alamogordo, New Mexico, for willful and repeated violation of Sections
1.903(a), 1.947(a), and 74.532(e) of the Commission's Rules ("Rules").
On September 11, 2007, the Enforcement Bureau's Denver Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$4,000 to Southern for failing to operate station WPXT310, an aural
studio-transmitter-link ("STL"), from its licensed location. In this
Order, we consider Southern's arguments that it displays a high level
of public service, which should mitigate the forfeiture, that the
statutory factors requires reduction of the forfeiture, that the fine
is disproportionate to the nature of the offense, and that Southern
does not have the ability to pay the forfeiture.
2. On March 26, 2007, an agent from the Enforcement Bureau's Denver
Office responded to a complaint of an auxiliary broadcast transmitter
operating from an unauthorized location in Alamogordo, New Mexico. At
approximately 7:00 p.m., the agent observed a signal 948.425 MHz
emanating from an antenna located at 3001 North Florida Avenue, in
Alamogordo, New Mexico.
3. On March 27, 2007, the Denver agent returned to conduct an inspection.
The inspection revealed that the 3001 North Florida Avenue location
housed the studios of the Southern New Mexico Radio Foundation. The
transmitter, operating under call sign WPXT310, was determined to be
the STL for broadcast station KUPR. The coordinates of the studios on
North Florida Avenue were approximately 32-o 55' 40" north latitude,
105-o 57' 10.4" west longitude. According to the WPXT310
authorization, the STL is licensed for operation from the coordinates
of 32-o 54' 25.5" north latitude, 105-o 57' 35.8" west longitude with
a physical street address of 1510 North White Sands Boulevard,
Alamogordo, New Mexico.
4. During the inspection, the agent informed Southern's owner of the
violation concerning the location of the STL. The Southern
representative stated that the studio and STL moved from the 1510
North White Sands Boulevard location on February 16, 2007. When the
inspection was completed, the agent reviewed the violation with
Southern's owner. The station owner acknowledged the licensing error
and Southern's failure to include the STL transmitter location change
when they applied for an STA for the parent broadcast station, KUPR.
The station owner stated that he would start paperwork immediately to
make the changes for WPXT310.
5. On March 28, 2007, the agent returned to the studio location of 3001
North Florida Avenue and observed that WPXT310 was still operating
from that location.
6. On April 18, 2007, a review of the Commission's databases revealed no
modification application on file for WPXT310. In a fax stamped with
the date of April 21, 2007, Southern's owner sent the Denver agent
information concerning the necessary modifications that were to be
made: a change of address request to the FCC and an application for a
"simplex auxiliary broadcast STL microwave path" sent to a frequency
7. On September 4, 2007, a review of the Commission's databases revealed
no modification application on file for WPXT310.
8. On September 11, 2007, the Denver Office issued a NAL in the amount of
$4,000 to Southern. In the NAL, the Denver Office found that Southern
apparently willfully and repeatedly violated Sections 1.903(a),
1.947(a), and 74.532(e) of the Rules by failing to operate station
WPXT310 from its licensed location. Southern filed a response
("Response") to the NAL on October 11, 2007, and supplemented its
response on March 19, 2008, and April 11, 2008. In its Response,
Southern argues that it displays a high level of public service, which
should mitigate the forfeiture, that the statutory factors requires
reduction of the forfeiture, that the fine is disproportionate to the
nature of the offense, and that Southern does not have the ability to
pay the forfeiture.
9. 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
the 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.
10. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service and with a valid
authorization granted by the Commission. Section 1.947(a) of the Rules
requires that all major modifications as defined in Section 1.929 of
the Rules require prior Commission approval. Section 1.929(d)(1)(i) of
the Rules defines one of the major actions as "any change in transmit
antenna location by more than 5 seconds in latitude or longitude for
fixed point-to-point facilities." Section 74.532(e) of the Rules
states that each aural broadcast auxiliary station will be licensed at
a specified transmitter location to communicate with a specified
receiving location, and the direction of the main radiation lobe of
the transmitting antenna will be a term of the station authorization.
At the time of the inspection on March 27, 2007, Southern was found
operating station WPXT310 from a location inconsistent with the
station's authorized coordinates and "fixed address location." The
distance separating the point of operation from that of the license
was greater than 1 mile (approximately 74 seconds of latitude and 25
seconds of longitude).
11. In its Response, Southern does not dispute the facts recited in the
NAL. Instead it argues that its station KUPR, Alamogordo, New Mexico,
which WPXT310 is the STL for, displays an extraordinary level of
public service, which supports mitigation of the forfeiture. We
applaud Southern's efforts, however, they are not a basis for
reduction of the forfeiture. The Commission has consistently held that
"licensees are expected to comply with the Commission's Rules as well
as to make continued efforts to serve the community to which they are
licensed and will not be relived of liability for violations of the
Rules by the fact they have fulfilled their responsibility to serve
their communities." Additionally, "a licensee is not relieved of
responsibility for complying with applicable statutes and rules by the
fact that it has performed an outstanding public service to the
community." Therefore, we decline to mitigate the proposed forfeiture
based on Southern's public service record.
12. Southern also argues that the statutory factors require reduction of
the forfeiture, including its excellent record of public service,
along with the fact that no interference was caused by Southern's
operation of WPXT310 at an unauthorized location. We have discussed
the relevance of Southern's public service record above. We note that
the Denver Office found that Southern was apparently liability for
operating from an unauthorized location, not for causing interference
by operating WPXT310. Additionally, it is well established that the
absence of public harm is not considered a mitigating factor in a rule
violation and does not warrant a downward adjustment of a forfeiture.
Therefore we find no merit to this argument.
13. Southern also argues that broadcasters utilizing auxiliary services
such as STL's are entitled to a "free" amount of unlicensed auxiliary
use, and that operators of such stations should be given greater
flexibility to serve the needs of the public. While we acknowledge
that Section 74.24(d) of the Rules allows an STL station short-term
operation under the authority conveyed by a part 73 license or a
broadcast auxiliary license without prior FCC authorization, not to
exceed 720 hours annually, this rule does not mitigate Southern's
violation. At the time of the inspection, the Denver agent was told by
the owner of WPXT310 that the station had been operating from the
unauthorized location for more than a month, therefore, more than 720
hours. Six months after the inspection, a review of the Commission's
databases revealed that, on September 4, 2007, Southern had still
failed to file an application with the Commission to modify the
WPXT310 license. Additionally, despite Southern's assurance, in its
October 11, 2007 Response, that the "oversight is being rectified," we
note that Southern did not file an application with the Commission to
modify the WPXT310 license until April 22, 2008. Consequently, we find
unavailing Southern's argument that the $4,000 amount proposed by the
Denver Office, which is the base forfeiture amount for operation at an
unauthorized location, is disproportionate to the offense.
14. Southern also argues that it does not have the ability to pay the
proposed forfeiture amount. To support this claim, Southern supplied
financial data for the three years prior to the NAL. In analyzing a
financial hardship claim, the Commission generally has looked to gross
revenues as a reasonable and appropriate yardstick in determining
whether a licensee is able to pay the assessed forfeiture. We have
reviewed the data supplied by Southern and we conclude that reduction
of the forfeiture from $4,000 to $800 is warranted.
15. We have examined the 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 Southern
willfully and repeatedly violated Sections 1.903(a), 1.947(a), and
74.532(e) of the Rules. Considering the entire record and the factors
listed above, we find that reduction of the proposed forfeiture to
$800 is warranted.
IV. ORDERING CLAUSES
16. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Southern New Mexico
Radio Foundation, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$800 for willfully and repeatedly violating Sections 1.903(a),
1.947(a), and 74.532(e) of the Rules.
17. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Southern New
Mexico Radio Foundation, at its address of record, and Barry Wood, its
counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 C.F.R. S:S: 1.903(a), 1.947(a), and 74.532(e).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732800009
(Enf. Bur., Western Region, Denver Office, released September 11, 2007).
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)(E).
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.947(a).
47 C.F.R. S: 1.929(d)(1)(i).
47 C.F.R. S: 74.532(e).
Radio Beaumont, Inc., 50 FCC 2d 904 (1975). See also Garvin County
Broadcasting, Inc., 46 FCC 2d 954 (1974).
Esther Blodgett, 18 FCC 2d 6 (1969). See also Folkways Broadcasting Co.,
12 FCC 2d 887 (1968).
Pacific Western Broadcasters, 50 FCC 2d 819 (1975).
47 C.F.R. S: 74.24(d).
See File No. 0003407558, received April 22, 2008. We note that the
location proposed in the modification application for WPXT310 is 3049
North Florida Avenue, Alamogordo, New Mexico, as opposed to 3001 North
See 47 C.F.R. S: 1.80(b)(4).
Forfeiture Policy Statement, 12 FCC Rcd at 17107 (the Commission has the
flexibility to consider any documentation, not just audited financial
statements, that it considers probative, objective evidence of the
violator's ability to pay a forfeiture).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
See PJB Communications, 7 FCC Rcd at 2089 (forfeiture not deemed excessive
where it represented approximately 2.02 percent of the violator's gross
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 1.903(a),
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1187
Federal Communications Commission DA 08-1187