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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of             )                               
     Claro Communications, LTD.   )   File Number EB-07-HU-048    
     Licensee of Station KBRN     )   NAL/Acct. No. 200832540001  
     Boerne, Texas                )   FRN 0015929763              
     Facility ID # 51961          )                               

                          MEMORANDUM OPINION AND ORDER

   Adopted: June 18, 2008 Released: June 20, 2008

   By the Associate Chief, Enforcement Bureau:


    1. In this Memorandum Opinion and Order ("Order"), we deny the petition
       for reconsideration filed by Claro Communications, LTD. ("Claro") of
       the Forfeiture Order issued January 17, 2008. The Forfeiture Order
       imposed a monetary forfeiture in the amount of $8,800 for Claro's
       willful and repeated violation of Section 73.1125(a) of the
       Commission's Rules ("Rules") and repeated violation of Section
       73.1745(a) of the Rules. The noted violations involved Claro's failure
       to maintain a main studio and operation of its station at a power
       level exceeding that specified in its license.


    2. On August 6, 2007, in response to a complaint, an agent from the
       Commission's Houston Office of the Enforcement Bureau ("Houston
       Office") investigated the operation of station KBRN in Boerne, Texas.
       The agent conducted field strength measurements on station KBRN's
       radio signal at various times throughout the day and evening. These
       measurements indicated that the power output of station KBRN's
       transmitter did not change during the day, near sunset, or well into
       the night. Additionally, the agent was unable to locate a main studio
       for station KBRN in or near the town of Boerne, Texas.

    3. On August 7, 2007, the agent from the Houston Office took field
       strength measurements at various times during the day and night. These
       measurements showed that the power level of station KBRN did not
       change after sunset local time, and was at the same level as observed
       the previous day.

    4. On August 8, 2007, the agent from the Houston Office again took field
       strength measurements at various times during the day and night. These
       measurements showed that the power level of station KBRN did not
       change after sunset local time, and was at the same level as observed
       the previous two days. The agent, still attempting to locate a main
       studio for station KBRN, spoke by telephone to the owner of the
       station and a contract engineer employed to maintain the station's
       transmitting equipment. Both confirmed the station did not have a
       permanent main studio for station KBRN, but instead was operating
       temporarily out of a hair salon business in Boerne, Texas.
       Additionally, the owner stated the temporary studio did not have any
       employees of station KBRN reporting daily to that location and that
       the station had been operating under these conditions for about 60

    5. On August 9, 2007, the agent from the Houston Office met with the
       manager of station KBRN at the hair salon business to inspect the
       station's main studio. The station manager stated that no employees of
       the station worked at this location, but the employees of the hair
       salon knew to call him if anyone came in to discuss matters relating
       to the radio station. The station manager then showed the agent
       broadcast equipment typically used at a radio station studio installed
       in a back room closet of the hair salon. The equipment was not
       functioning and was not even connected to an electrical outlet. The
       manager explained that the equipment was never actually used to
       provide programming to the transmitter because the studio to
       transmitter radio link could not be made to function from this
       location. The manager further stated that a computer installed in the
       transmitter building at the transmitter site was providing programming
       for the station. After sunset still on August 9, 2007, the agent from
       the Houston Office met with a contract engineer employed by station
       KBRN at the station's transmitter site. The engineer confirmed the
       station was being operated unattended with a computer in the
       transmitter building providing programming. The engineer additionally
       determined that the station was still operating in its daytime mode
       and power although he did not immediately know why. The engineer set
       the station to its proper nighttime power and stated he would make
       arrangements to have the transmitter manually switched from daytime
       operating mode to nighttime operating mode until the automated control
       system could be repaired. After leaving the transmitter site, the
       agent from the Houston Office conducted field strength measurements
       that confirmed a dramatic reduction in the power level of station
       KBRN's signal.

    6. On November 21, 2007, the Houston Office issued a Notice of Apparent
       Liability for Forfeiture to Claro in the amount of eleven thousand
       dollars ($11,000) for the apparent willful and repeated violation of
       Section 17.1125(a) of the Rules and the apparent repeated violation of
       Section 73.1745(a) of the Rules. Claro submitted a response to the NAL
       requesting a reduction or cancellation of the proposed forfeiture. On
       January 17, 2008, the Enforcement Bureau ("Bureau") reduced the
       forfeiture based on Claro's history of compliance with the rules and
       released the Forfeiture Order. The Bureau received Claro's petition
       for reconsideration on February 19, 2008, requesting cancellation of
       the forfeiture.


    7. The 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
       Claro'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 any
       other such matters as justice may require.

    8. Claro asserts that the Bureau failed to consider "such matters as
       justice may require," namely Claro's owner's serious illness. In its
       petition, Claro states that, while it was in the midst of a main
       studio location change in July 2007, its owner was diagnosed with
       cancer on July 23, 2007 and underwent surgery. This illness prevented
       Claro's owner from being able to relocate the main studio and oversee
       station operations in August 2007. In its petition, Claro also states
       that it was forced to move from its previously compliant main studio
       location in July 2007. These statements, however, conflict with
       contemporaneous statements made by Claro's owner on the telephone on
       August 8, 2007. On August 8, 2007, Claro's owner stated on the
       telephone that the no station employees had been reporting daily to
       the temporary main studio and that the station had been operating like
       this for about 60 days. This would place the station's move to a
       temporary and non-compliant location at approximately the beginning of
       June 2007. Claro's attorney was provided several opportunities in
       which to clarify the timeline for Claro's main studio relocation, but
       no response was provided. Claro's owner was also contacted but he was
       unable to confirm or deny the timeframe for the main studio move.
       Therefore, we find no reason not to rely upon the contemporaneous
       statements made to our agent. While we are sympathetic to Claro's
       owner's illness, Claro could have avoided the violation by applying
       for a waiver of the rules before it relocated its main studio to the
       temporary locations, or setting up a new compliant main studio prior
       to moving from its previously compliant main studio. Claro's owner and
       station manager had over a month in which to do so, prior to the
       owner's diagnosis with cancer. Accordingly, we do not find Claro's
       petition for reconsideration persuasive and deny it.


    9. Accordingly, IT IS ORDERED that, pursuant to Section 405(b) of the
       Communications Act of 1934, as amended, and Section 1.106(f) of the
       Commission's Rules, the petition for reconsideration filed by Claro
       Communications, LTD. IS DENIED.

   10. 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, Claro
       Communications, LTD. IS LIABLE FOR A MONETARY FORFEITURE in the amount
       of eight thousand eight hundred dollars ($8,800) for violation of
       Section 73.1125 and 73.1745 of the Rules.

   11. 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[s] 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.  FCC Form 159 may be obtained
       at 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: with any questions
       regarding payment procedures. Claro Communications, LTD. will also
       send electronic notification on the date said payment is made to

   12. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
       and by certified mail, return receipt requested, to Claro
       Communications, LTD. at its address of record and to its counsel,
       Christopher D. Imlay, Booth, Freret, Imlay & Tepper PC, 14356 Cape May
       Road, Silver Spring, MD 20904.


   George R. Dillon

   Associate Chief, Enforcement Bureau

   Claro Communications, LTD., Forfeiture Order, 23 FCC Rcd 359 (Enf. Bur.
   South Central Region 2008) ("Forfeiture Order").

   47 C.F.R. S:S: 73.1125(a), 73.1745(a).

   The current license for station KBRN is for daytime operation only;
   however, station KBRN has been granted a Construction Permit by the
   Commission authorizing it to operate at a daytime power of 1900 watts and
   a nighttime power of 15 watts.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832540001
   (Enf. Bur., Houston Office, November 21, 2007) ("NAL").

   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).

   47 U.S.C. S: 503(b)(2)(D).

   Claro's owner also asserted for the first time that the station had
   recently gone silent following a fire and had been conducting program
   tests immediately prior to the agent's inspection. The owner stated that
   the main studio was not staffed, because it had not yet resumed full
   operations. According to the agent's notes, Claro's owner stated on August
   8, 2007 that the station had been on the air for about two months. Claro
   did not submit any documentation with the Media Bureau to substantiate its
   statement. The only document on file with the Media Bureau states that the
   station began normal operations on August 30, 2006. Accordingly, we do not
   rely upon Claro's assertion that it was conducting program tests in August

   47 C.F.R. S: 1.106(f).

   47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).

   47 U.S.C. S: 504(a).

   Federal Communications Commission DA 08-1435



   Federal Communications Commission DA 08-1435