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
) File No.: EB-09-TP-0185
Ace of Hearts Disc Jockey Service,
Inc. ) NAL/Acct. No.: 201132700003
Licensee of Station W277AN ) FRN: 0008590853
Cape Canaveral, Florida ) Facility ID No.: 143943
Adopted: April 23, 2012 Released: April 23, 2012
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of eleven thousand dollars ($11,000) to Ace of Hearts Disc
Jockey Service, Inc. (Ace), licensee of translator station W277AN
(Station), in Cape Canaveral, Florida, for willful and repeated
violation of Sections 73.1350 and 74.1235(e) of the Commission's rules
(Rules). The noted violations involved Ace operating its Station with
unauthorized antenna equipment and with more than authorized power. In
addition to the monetary forfeiture, we direct Ace to submit no later
than thirty (30) calendar days from the date of this Order a statement
signed under penalty of perjury that it is operating its Station
consistent with its license authorization.
2. On March 8, 2011, the Enforcement Bureau's Tampa Office (Tampa Office)
issued a Notice of Apparent Liability for Forfeiture and Order (NAL)
to Ace for its use of an unauthorized transmitting antenna system and
its overpower operation. As discussed in detail in the NAL, on October
28, 2009, and on February 7, September 22, and September 24, 2010,
agents from the Tampa Office measured the field strength of Station
W277AN's signal and determined that the Station was operating with
more than its authorized transmitter power output (TPO). On February
26 and September 22, 2010, agents from the Tampa Office observed that
the meter on the Station's amplifier showed the Station operating with
more than its authorized TPO. On February 7, February 26, and
September 22, 2010, agents from the Tampa Office confirmed that a
photograph taken on October 28, 2009, was accurate and that the
Station was using a two-antenna array, although its authorization
specified use of only one antenna. In view of the record evidence, the
NAL proposed a $13,000 forfeiture against Ace for willfully and
repeatedly violating Sections 73.1350 and 74.1235(e) of the Rules, and
required Ace to submit a sworn statement to the Bureau within 30 days
confirming that it is now operating at authorized power levels and
with an authorized antenna system. Ace responded to the NAL, stating
that it is now in conformity with the Rules, and also requesting
cancellation or reduction of the proposed forfeiture, arguing that its
operation in excess of the authorized TPO may have been caused by an
unknown third party; that the antenna issue was due to a typographical
error on an application; that some of the violation dates are barred
by the statute of limitations; that it has a history of compliance;
and that it is unable to pay the forfeiture. We discuss below each of
these arguments in turn.
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act), Section 1.80 of the Rules, and the Forfeiture Policy Statement.
In examining Ace's response, Section 503(b)(2)(E) 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. As we
discuss below, we have considered Ace's response in light of these
statutory factors, and determine that a forfeiture in the amount of
$11,000 is warranted.
A. Failure to Operate at Authorized Transmitter Power Output (TPO)
4. We affirm our finding in the NAL that Station W277AN willfully and
repeatedly operated with more than authorized TPO, in violation of
Section 74.1235(e) of the Rules. Section 74.1235(e) of the Rules
states that in no event shall a station authorized under this subpart
be operated with a TPO in excess of the transmitter certificated
rating and the TPO shall not be more than 105 percent of the
authorized level. As the record reflects, Station W277AN is
authorized to operate with a TPO of 0.061 kW or 61 watts, yet the
Station was found to be operating in excess of its authorized level on
several occasions. In its NAL Response, Ace admits that the meter on
Station W277AN's amplifier showed that the Station was operating with
more than its authorized TPO during the inspection on February 26,
2010, when Randy Bennett, Ace's principal owner and chief operator,
5. Although Ace admits that its Station was operating overpower, it
argues that no forfeiture should be imposed based on its theory that
the overpower operation on various dates possibly could have been
caused by "tampering" on the part of an unknown third party. In
support of its argument, Ace explains that it regularly inspected its
transmitter site at least once a month and found no problems, and
that, therefore, the "alleged power findings . . . by the agents on
September 22 and 24, 2010 defies logic"; as such, it suggests that the
overpower operation was likely attributable to "tampering on the part
of an unrelated third party." We find this explanation unpersuasive,
especially since Ace provides no evidence of any tampering by an
unknown third party. Moreover, we find it implausible that an
unrelated third party would know when Ace would conduct inspections of
its transmitter and ensure that the power levels were properly set on
those dates; and then, at the same time, know when the Commission
would conduct unannounced inspections and measurements and, in
anticipation of such inspections, deliberately adjust the transmitter
to reflect overpower operations only during those dates. There is also
no reason (and Ace provides none) to question the accuracy of the
agent's observations and the corresponding measurements taken on
October 28, 2009, and on February 7, February 26, September 22, and
September 24, 2010. Based on the evidence before us, we find that Ace
not only violated Section 74.1235(e) of the Rules willfully and
repeatedly, but did so deliberately, given the further violations
after the February 26, 2010 inspection, when Ace's principal owner,
Mr. Bennett, was present.
B. Operation with Unauthorized Antenna Equipment
6. We also affirm our finding in the NAL that Station W277AN operated its
station with an unauthorized antenna system. Section 73.1350 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. In the NAL, we found that
although Station W277AN's license authorizes it to operate with only
one antenna, the photographs taken by agents on October 28, 2009, as
well as direct observations by agents on February 7, 2010, February
26, 2010, and September 22, 2010, revealed that Station W277AN was
operating with a two-antenna array transmission system, at variance
with the Station's authorization. In response, Ace asserts that it
always intended to use a two-antenna array, but mistakenly submitted,
as a result of a typographical error, a license application with an
antenna code of MP-1 (reflecting a request for one antenna), rather
than MP-2 (reflecting a request for use of a two-antenna array). Such
mistake, however, does not ordinarily serve to justify a station
operating at variance with its license authorization. In this regard,
we emphasize not only the importance of building and operating a
station consistent with the terms of its authorization, but also the
importance of reviewing and ensuring the accuracy of the information
contained in the authorization, which Ace apparently did not do. Since
there is no dispute that Ace's license did not authorize a two-antenna
array transmission system, we conclude that Ace willfully and
repeatedly violated Section 73.1350 of the Rules. We further conclude,
however, that mitigating factors exist that serve to justify reducing
the proposed forfeiture. Specifically, we find that Ace's use of a
two-antenna array did not have a significant impact on its transmitter
output power,and did not otherwise preclude compliance with the other
technical requirements specified in its license. Furthermore, Ace has
since filed a license modification application with the FCC's Media
Bureau to authorize use of a two-antenna array. Therefore, given the
particular factual circumstances of this case, we reduce the proposed
forfeiture for the antenna violation from $5,000 to $3,000.
C. Denial of Statute of Limitations Argument
7. We deny Ace's request for cancellation of the forfeiture based on its
contention that several of the violation dates referenced in the NAL
are untimely. Citing Section 503(b)(6) of the Act, Ace argues that any
"item more than 1 year from the March 8th, 2011 NAL should be
dismissed." Ace's understanding of how Section 503(b)(6) of the Act
operates, however, is incorrect. Section 503(b)(6) states: "[n]o
forfeiture penalty shall be determined or imposed . . . if the
violation charged occurred-(i) more than 1 year prior to the date of
issuance of the required notice or notice of apparent liability; or
(ii) prior to the date of commencement of the current term of such
license, whichever is earlier . . . ." In this case, the first
violation occurred on October 28, 2009. Although that date is more
than one year prior to issuance of the NAL, subsection (ii) of Section
503(b)(6) of the Act authorizes a forfeiture penalty if the
violation(s) occurred after the commencement of Ace's current license
term, which began March 21, 2007, thereby capturing the various dates
specified in the NAL in which Ace was found to be in violation of the
Commission's rules. Therefore, the forfeiture penalty is not barred by
the statute of limitations.
D. Denial of Prior History of Compliance Claim
8. We deny Ace's request for reduction of the forfeiture based on its
claim that it has a history of compliance with the Commission's rules.
The record shows that Ace repeatedly and deliberately continued to
operate overpower after being informed during the inspection on
February 26, 2010, that the Station was operating overpower in
violation of the Rules. As such, given the multiple times in which it
was found in violation of Section 74.1235(e) after it had received
warnings of the violation, it is factually incorrect for Ace to assert
that it has a history of compliance. Furthermore, there is precedent
indicating that Randy Bennett, Ace's principal owner and chief
operator, was involved in an unauthorized transfer of a station. In
2011, the Bureau issued a consent decree and adopting order, in which
a licensee admitted that it was engaged in an unauthorized transfer of
a station with a licensee that was controlled by Mr. Bennett.
Specifically, David Carus & Associates admitted that it transferred
full ownership of FM Translator Stations W264AS and W272BA, and Aural
Studio Transmitter Link WQEQ835 (the Stations) to Community Radio
Foundation of Florida, Inc. (Community Radio Foundation) without prior
Commission approval, and that Mr. Bennett was a party to the
unauthorized transfer based on his control of Community Radio
Foundation. Given the foregoing, we disagree with Ace's assertion that
it has a history of compliance with the Commission's Rules and,
therefore, deny its request for reduction on that basis.
E. Denial of Inability to Pay Claim
9. We also deny Ace's request for cancellation or reduction of the
forfeiture based on its claim that is unable to pay the forfeiture.
The financial information that Ace submitted does not sufficiently
establish and convince us that it would be unable to pay the
forfeiture. With regard to an individual's or entity's inability to
pay, the Commission has "consistently interpreted Section 503 and our
rules as requiring consideration of all financial sources available to
that licensee, not just the revenue of that specific licensee."
Because the financial information provided in the NAL Response was
insufficient for the Bureau to confirm Ace's financial circumstances,
the Bureau's Tampa Office afforded Ace the opportunity to provide
additional information, including an explanation about other resources
that appeared to contribute to its operations, yet were not reflected
in the tax returns and financial statements submitted in its NAL
Response. Ace, however, filed an untimely response after already being
granted an extension of the filing deadline. As such, we are
dismissing the filing as untimely and, therefore, deny Ace's inability
to pay claim based on the (insufficient) information in its NAL
Response. However, even if the additional information were timely
filed, the filing did not serve to support Ace's inability to pay
claim, but instead raised further questions not only about the scope
of its financial resources (which appeared to be more significant than
initially represented), but the credibility of the statements made in
the filing (which appears contrary to evidence gathered by the Tampa
Office). The overall record and circumstances of this case does not
convince us that a reduction of the forfeiture is warranted; further,
we note that the original forfeiture of $13,000 in the NAL has now
been reduced to $11,000, thereby reducing the financial penalty
imposed against Ace.
F. Reporting Requirement
10. We direct Ace to submit a written statement, pursuant to Section 1.16
of the Rules, signed under penalty of perjury by an officer or
director of Ace that it is currently operating its Station with
authorized transmitter output power. This statement must be provided
to the Federal Communications Commission, Enforcement Bureau, South
Central Region, Tampa Office, 4010 W. Boy Scout Blvd., Suite 425,
Tampa, Florida 33607, within thirty (30) calendar days of the release
date of this Forfeiture Order.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Ace of Hearts
Disc Jockey Service, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the
amount of eleven thousand dollars ($11,000) for violations of Sections
73.1350 and 74.1235(e) of the Commission's rules.
12. IT IS FURTHER ORDERED that Ace of Hearts Disc Jockey Service, Inc.
SHALL SUBMIT a statement as described in paragraph 10, above, to the
Tampa Office within thirty (30) calendar days of the release date of
this Forfeiture Order.
13. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) days of the release of
this Forfeiture Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
enforcement 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 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. If payment is made, Ace of Hearts Disc
Jockey Service, Inc. shall send electronic notification on the date
said payment is made to SCR-Response@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class and Certified Mail, Return Receipt Requested,
to Ace of Hearts Disc Jockey Service, Inc. at 6050 Babcock Street SE,
Unit 23, Palm Bay, Florida 32909.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S:S: 73.1350, 74.1235(e).
Ace of Hearts Disc Jockey Service, Inc., Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 3481 (Enf. Bur. 2011) (NAL). A comprehensive
recitation of the facts and history of this case found in the NAL is
incorporated herein by reference.
When operating with its authorized transmitter output power of 61 watts,
the expected field strength for Station W277AN's signal is 47 mV/m. On
October 28, 2009, and on February 7, September 22, and September 24, 2010,
agents from the Tampa Office measured the field strength for
StationW277AN's signal at 82 mV/m, 92 mV/m, 74 mV/m, and 82 mV/m,
On February 26 and September 22, 2010, agents from the Tampa Office
observed that the meter on the amplifier for Station W277AN registered a
power output of 172 watts and 140 watts, respectively, which is 280% and
229% over the station's authorized power.
License File Number BLFT-20070220AA0. The license specifically describes
the antenna type as "Non-Directional, OMB MP-1." Based on manufacturer
specifications, the OMB MP-1 consists of only one antenna section.
See Letter from Randy Bennett, Principal Owner, Ace of Hearts Disc Jockey
Services, Inc., to District Director, Tampa Office (Mar. 8, 2011) (on file
in EB-09-TP-0185) (NAL Response).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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), recons. denied, 15 FCC Rcd 303 (1999) (Forfeiture
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 74.1235(e).
See License File Number BLFT-20070220AA0.
Ace asserts that during the inspection on February 26, 2010, an agent from
the Tampa Office told it that he usually gives "a first time offender" a
"mulligan," and complains that the agents failed to disclose the previous
measurements that were taken on October 28, 2009, and February 7, 2010.
See NAL Response at 4. Ace seems to suggest that these facts (if true)
mitigate the willfulness of the violation, but we disagree. Not only do
the Bureau's agents deny Ace's assertions, but even if the assertions were
true, neither fact has any bearing on the willfulness of the violation.
Furthermore, independent of the October 28, 2009, and February 7, 2010,
violation dates, the TPO violation was twice violated in September 2010,
and determined to have been repeated and willful.
See Affidavit of Randy Bennett Attachment A to NAL Response at 2.
See Affidavit of Randy Bennett Attachment F to NAL Response at 1-2. Ace
included affidavits from two individuals who state they observed the
Station operating within tolerances on September 4, 2010. See Affidavit of
Michael David, Volunteer Board Member of Brevard Youth Education
Broadcasting Corporation, Inc., dated March 28, 2011; Affidavit of Stacey
Kile, Volunteer Board Member of Brevard Youth Education Broadcasting
Corporation, Inc., dated March 31, 2011. Although Ace asserts that it
noted all repairs and issues in the transmitter log, Ace provided agents
from the Tampa Office a copy of its transmitter log on February 26, 2010,
but there were no entries in the log. Similarly, on September 22, 2010,
agents from the Tampa Office again observed the Station's transmitter log
located at the transmitter site and still found no entries in the log,
leaving Ace with no written documentation of any measurements that it
alleges were taken by the Station on the particular dates it said it did.
Affidavit of Randy Bennett Attachment F to NAL Response at 2.
47 C.F.R. S: 73.1350.
See License File Number BLFT-20070220AA0.
See Affidavit of Randy Bennett Attachment F to NAL Response at 2-3. On
June 1, 2011, Ace requested a modification of its license, which would,
among other things, authorize its use of a two-antenna array. See License
File No. BPFT-20110603AAA.
Ace admitted that it intended to operate its system with a two-antenna
array, and that such use is not authorized by the specific terms of its
station license. Id.
See Affidavit of Randy Bennett Attachment F to NAL Response at 3.
See, e.g., Family Educational Association, Inc., Forfeiture Order, 20 FCC
Rcd 18867 (Enf. Bur. 2005) (assessing forfeiture at base forfeiture amount
to licensee who replaced old system with non-directional antenna for use
at night, when authorized to use a directional antenna at night). See also
CellPhone-Mate Inc., Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 8988 (Enf. Bur. 2010) (reducing base forfeiture amount of violation
because device was authorized but improperly labeled due to a
See License File No. BPFT-20110603AAA.
47 U.S.C. S: 503(b)(6).
NAL Response at 4.
See License File No. BLFT-20070220AA0.
David Carus & Associates, Order, 26 FCC Rcd 7521 (Enf. Bur. 2011).
Id. at 7526, 7530.
SM Radio, Inc., Order on Review, 23 FCC Rcd 2429 (2008) (affirming
Bureau's rejection of request for reduction based on inability to pay
because licensee failed to provide financial data concerning all potential
sources of income available to it, thereby rendering the record
insufficient to substantiate the request).
Letter from Ralph Barlow, District Director, Tampa Office, to Randy
Bennett, Ace of Hearts Disc Jockey Services, Inc. (Aug. 17, 2011) (on file
in EB-09-TP-0185) (First Finances LOI); Letter from Ralph Barlow, District
Director, Tampa Office, to Randy Bennett, Ace of Hearts Disc Jockey
Services, Inc. (Oct. 7, 2011) (on file in EB-09-TP-0185) (granting
extension of time in which to submit a response); Letter from Ralph
Barlow, District Director, Tampa Office, to Randy Bennett, Ace of Hearts
Disc Jockey Services, Inc. (Oct. 25, 2011) (on file in EB-09-TP-0185)
(Second Finances LOI); Letter from Ralph Barlow, District Director, Tampa
Office to Randy Bennett, Ace of Hearts Disc Jockey Services, Inc. (Jan. 4,
2012) (on file in EB-09-TP-0185) (granting extension of time in which to
submit second response).
Ace was required to submit its response to the Second Finances LOI by
January 17, 2012. Ace's response was post-marked January 23, 2012, and was
not received by the Tampa Office until January 24, 2012.
We find unconvincing Ace's assertions that no third party has paid for any
of Ace's expenses and that Randy Bennett and/or Ace has no control over
Brevard Youth Education Broadcasting Corporation d/b/a "WGRV the Groove."
See Letter from Randy Bennett, Ace of Hearts Disc Jockey Service, Inc., to
Ralph Barlow, District Director, Tampa Office at 2-3 (Jan. 12, 2012) (on
file in EB-09-TP-0185). The record shows that Randy Bennett signed an
agreement on behalf of Community Radio Foundation for space on the antenna
structure where Ace's transmitter is located. Ace does not have a separate
lease agreement with the antenna structure owner. "WGRV The Groove Radio"
submitted at least one rental payment in January 2010 on behalf of
Community Radio Foundation to the antenna structure owner where's Ace's
transmitter is located. This check was signed by Randy Bennett and listed
Mr. Bennett's home address as WGRV's. Mr. Bennett has also signed other
checks for WGRV The Groove Radio in 2009 and 2010 to pay antenna structure
rent on behalf of Community Radio Foundation and "Space Coast Public
47 C.F.R. S: 1.16.
On August 12, 2011, agents from the Tampa Office measured Station W277AN
operating with a TPO of 64 watts. On that same day, the agents also
observed the Station's transmitter set to operate at 64 watts. Ace
significantly reduced its TPO, but was still operating with slightly more
power than the authorized TPO of 61 watts.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4), 73.1350, 74.1235(e).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 12-625
Federal Communications Commission DA 12-625