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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
A Radio Company, Inc. ) File No.: EB-10-SJ-0054
Licensee of Station WEGA ) NAL/Acct. No.: 201132680002
Vega Baja, PR 00694 ) FRN: 0010555654
Facility ID # 69853 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 12, 2011 Released: May 12, 2011
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that A Radio Company, Inc. ("A Radio"), licensee of AM radio Station
WEGA in Vega Baja, Puerto Rico, apparently willfully and repeatedly
violated an Enforcement Bureau ("Bureau") order by failing to comply
with the terms of the Order and Consent Decree entered into between
the Bureau and A Radio. Based on our review of the facts and
circumstances of this case, we conclude that A Radio is apparently
liable for a forfeiture in the amount of twenty-five thousand dollars
2. On May 12, 2008, the Bureau adopted an Order and Consent Decree that
terminated a Bureau investigation of possible violations by A Radio of
sections 73.49, 73.1350(a), and 73.3526 of the Commission's rules
("Rules") regarding antenna tower fencing, public inspection file
requirements, and operating with an unauthorized antenna pattern.
Among other terms in the Order and Consent Decree, A Radio agreed to
make a voluntary contribution to the U.S. Treasury in the amount of
eight thousand dollars ($8,000) by June 14, 2008. A Radio also agreed
to submit a Compliance Report certifying compliance with all terms of
the Consent Decree by May 14, 2010.
3. In response to a letter of inquiry issued by the Bureau's San Juan
Office on April 16, 2010, A Radio admitted that it was required to
make an $8,000 voluntary contribution pursuant to the terms of the
Order and Consent Decree and stated that the "original check for
$8,000 was not cleared by
Western Bank because of insufficient funds." According to the Commission's
records, as of May 10, 2011, A Radio has not submitted its $8,000
voluntary contribution to the U.S. Treasury. Similarly, as of May 10,
2011, A Radio has not submitted its Compliance Report.
4. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines willful as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both section 312 and 503(b) of the Act and the
Commission has so interpreted the term in the section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
5. Under the terms of the negotiated Order and Consent Decree, A Radio
agreed to make a voluntary contribution in the amount of $8,000 to the
U.S. Treasury by June 14, 2008 and submit a Compliance Report by May
14, 2010. As of May 10, 2011, A Radio has not submitted payment of the
voluntary contribution or its Compliance Report. Based on the facts
and circumstances described above, we find that A Radio apparently
willfully and repeatedly violated a Bureau order by failing to comply
with the terms of the Order and Consent Decree entered into between
the Bureau and A Radio and issued pursuant to sections 4(i) and 503(b)
of the Act.
6. The Commission's Forfeiture Policy Statement and section 1.80 of the
Rules do not specify a base forfeiture amount for failing to comply
with a Commission order. The Commission has stated, however that the
"omission of a specific rule violation from the list [establishing
base forfeiture amounts] should not signal that the Commission
considers any unlisted violation as nonexistent or unimportant. The
Commission expects, and it is each licensee's obligation, to know and
comply with all of the Commission's rules." Thus, the Commission
retains its discretion to issue forfeitures on a case-by-case basis,
irrespective of whether it has established a corresponding base
forfeiture amount. In assessing the monetary forfeiture amount, then,
we must take into account the statutory factors set forth in section
503(b)(2)(E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, 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. The
Order and Consent Decree terminated an enforcement proceeding which
originated with a $15,000 Notice of Apparent Liability for Forfeiture.
The Commission has stated that "a consent decree violation, like
misrepresentation, is particularly serious. The whole premise of a
consent decree is that enforcement action is unnecessary due, in
substantial part, to a promise by the subject of the consent decree to
take the enumerated steps to ensure future compliance. Where, as here,
it appears that a regulated entity violated a consent decree, we
believe a substantial proposed forfeiture is warranted." Applying the
Forfeiture Policy Statement, section 1.80 of the Rules, and the
statutory factors to the instant case, we therefore conclude that A
Radio is apparently liable for a forfeiture in the amount of $25,000.
IV. ORDERING CLAUSES
7. 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 of the Rules, A Radio Company, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-five
thousand dollars ($25,000) for violating the terms of a Bureau order
adopted pursuant to section 4(i) and 503(b) of the Act.
8. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules
within thirty (30) days of the release date of this NAL, A Radio
Company, Inc., SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN
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. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. A Radio shall also send electronic notification
to SCR-Response@fcc.gov on the date said payment is made.
10. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, San Juan, Room 762, Hato Rey, PR, 00918 and must
include the NAL/Acct. No. referenced in the caption. A Radio shall
also email an electronic copy to SCR-Response@fcc.gov.
11. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
12. IT IS FURTHER ORDERED that a copy of this NAL shall be sent by both
Certified Mail, Return Receipt Requested, and regular mail, to A Radio
Company, Inc., at P.O. Box 1488, Vega Baja, PR 00694.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
A Radio Company, Inc., Order and Consent Decree, 23 FCC Rcd 7337 (Enf.
Bur. 2008) ("Order and Consent Decree").
The actions taken today do not prejudice any enforcement actions we may
take for other violations discovered while investigating A Radio's failure
to comply with the terms of the Order and Consent Decree.
See note 1, supra.
47 C.F.R. S:S: 73.49, 73.1350(a), 73.3526.
Order and Consent Decree at 7341.
Letter from William Berry, Resident Agent, San Juan Office, to A Radio
Company, Inc. (April 16, 2010) ("LOI").
Letter from Gerardo A. Angulo, President/Owner, to William Berry, Resident
Agent, San Juan Office at 1 (June 2, 2010) ("LOI Response").
47 U.S.C. S: 312(f)(1).
H.R. Conf. Rep. No. 97-765, at 51 (1982) ("This provision [inserted in
section 312] defines the terms `willful' and `repeated' for purposes of
section 312, and for any other relevant section of the act (e.g., section
503) . . . . As defined[,] . . . `willful' means that the licensee knew
that he was doing the act in question, regardless of whether there was an
intent to violate the law. `Repeated' means more than once, or where the
act is continuous, for more than one day. Whether an act is considered to
be `continuous' would depend upon the circumstances in each case. The
definitions are intended primarily to clarify the language in sections 312
and 503, and are consistent with the Commission's application of those
terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon. denied,
7 FCC Rcd 3454 (1992) ("Southern California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
47 U.S.C. S:S: 154(i), 503(b).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
Forfeiture Policy Statement, 12 FCC Rcd at 17099 P: 22.
47 U.S.C. S: 503(b)(2)(E).
A Radio Company, Inc., Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200632680001 (Enf. Bur., San Juan Office, released October
SBC Communications, Inc., Notice of Apparent Liability for Forfeiture and
Order, 16 FCC Rcd 19091, 19125 (2001).
47 U.S.C. S:S: 154(i), 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11-724
Federal Communications Commission DA 11-724