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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Ace of Hearts Disc Jockey Service, Inc. Licensee of
Station W277AN Cape Canaveral, Florida ) ) ) ) ) ) ) File No.:
EB-09-TP-0185 NAL/Acct. No.: 201132700003 FRN: 0008590853 Facility ID No.:
MEMORANDUM OPINION AND ORDER
Adopted: February 8, 2013 Released: February 8, 2013
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended (Act),^ and Section
1.106 of the Commission's rules (Rules),^ we deny the petition for
reconsideration (Petition) ^ filed by Ace of Hearts Disc Jockey
Service, Inc. (Ace), licensee of translator station W277AN (Station)
in Cape Canaveral, Florida.^ Ace seeks reconsideration of the
Forfeiture Order issued by the Enforcement Bureau's South Central
Region in this proceeding.^ The Forfeiture Order imposed a monetary
forfeiture in the amount of eleven thousand dollars ($11,000) against
Ace for willfully and repeatedly violating Sections 73.1350 and
74.1235(e) of the Rules.^ The noted violations involved Ace operating
its Station with unauthorized antenna equipment and with more than
authorized power. As discussed below, we uphold the Bureau's prior
ruling and affirm the $11,000 forfeiture.
2. On March 8, 2011, the Enforcement Bureau's Tampa Office (Tampa Office)
issued Ace a Notice of Apparent Liability for Forfeiture and Order
(NAL) for its overpower operation and use of an unauthorized
transmitting antenna system, in violation of Sections 74.1235(e) and
73.1350 of the Rules, respectively.^ 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, during an on site
investigation, agents from the Tampa Office observed that the meter on
the Station's amplifier showed the Station operating with more than
its authorized TPO.^ In addition, 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 violating Sections
74.1235(e) and 73.1350 of the Rules.^ Ace responded to the NAL,
disputed some of the findings, and requested cancellation or reduction
of the proposed forfeiture.^
3. On April 23, 2012, the Bureau's South Central Region issued a
Forfeiture Order, which affirmed the NAL's findings, but reduced the
$13,000 proposed forfeiture to $11,000 after further consideration of
the factual circumstances surrounding the antenna equipment
violation.^ The Bureau, however, rejected Ace's claim that it had a
history of overall compliance with the Rules, given contrary record
evidence.^ Further, the Bureau rejected Ace's inability to pay claim
because Ace failed to provide sufficient evidence to support and
justify its request.^
4. On May 11, 2012, Ace filed the instant Petition, urging the Bureau to
reconsider its decisions in the Forfeiture Order. Specifically, Ace
asks the Bureau to reduce the forfeiture, and states that it "agrees
to enter into an installment payment plan."^ In support of its request
for reconsideration, Ace asserts: "Since February 2010[,] multiple
applications have been on file with the [C]ommission towards W277AN's
operational status and/or intent. Any alleged discrepancies and/or
confusion towards the antennas or operations after that date is not
the fault of Ace."^ Ace also asserts that its request for reduction
based on history of compliance with the rules should be granted
because, contrary to what was stated in the Forfeiture Order, it was
not provided multiple warnings of the overpower violation.^ Finally,
Ace asks the Bureau to reduce the $11,000 forfeiture based on
inability to pay; in this regard, Ace asserts that it has been in
bankruptcy preparations and that its principal owner, Randy Bennett,
is in foreclosure proceedings.^
5. Petitions for reconsideration are granted only in limited
circumstances. Reconsideration is appropriate only where the
petitioner either demonstrates a material error or omission in the
underlying order, or raises additional facts not known or not existing
until after the petitioner's last opportunity to present such
matters.^ A petition for reconsideration that reiterates arguments
that were previously considered and rejected will be denied.^ As
discussed below, we find that Ace has not provided any basis to
A. Operation with Unauthorized Antenna Equipment
6. In the Forfeiture Order, the Bureau affirmed the NAL's finding that
Ace violated Section 73.1350 of the Rules by operating its Station
with an unauthorized antenna system--i.e., by operating a two-antenna
array transmission system when its license authorized operation using
only one antenna. Agents from the Bureau's Tampa Office confirmed this
violation based on photographs taken on October 28, 2009, and based on
direct observations on February 7, 2010, February 26, 2010, and
September 22, 2010.^ As discussed in the Forfeiture Order, Ace
asserted that it had 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 a two-antenna
array).^ The Bureau did not find the asserted typographical error a
sufficient basis to excuse the violation, and reminded Ace that it
remained responsible for reviewing and ensuring the accuracy of the
information contained in the authorization, and for operating in
conformity with its authorization.^ The Bureau, however, reduced the
forfeiture amount for the antenna violation from $5,000 to $3,000,
given other factors that served to mitigate the violation.^
7. In its Petition, Ace contends that the Bureau erred in finding that
Ace violated Section 73.1350, arguing that any discrepancies about its
antenna authorization was not its fault, but instead due to Commission
delay in granting the various applications that it filed as of
February 2010.^ We deny Ace's request for reconsideration of the
Bureau's finding on this issue. A licensee cannot operate in
conformity with its license modification application based on the
assumption that the application will later be granted. Until such
modification application has been granted, licensees are expected to
operate in strict conformity with its current license authorization,
unless it has been granted special temporary authority in the
interim.^ In this case, Ace's license, during the dates of the
violation in 2009 and 2010, authorized use of only one antenna (not
two). Therefore, the Bureau properly determined that anytime Ace
operated its Station using a two-antenna array, it was in violation of
Section 73.1350 notwithstanding the pendency of any corrective
8. Furthermore, even if we were to disregard (which we do not) any
antenna violations after Ace filed its modification application in
February 2010, the record is still replete with prior violations of
Section 73.1350. Agents from the Tampa Office confirmed that Ace used
an unauthorized antenna system on October 28, 2009, and Ace admitted
that its violation had been continuous since its operations began.^
Thus, Ace cannot dispute that it repeatedly operated its station with
an unauthorized antenna system even before it filed its modification
application. For these reasons, we find no basis for reconsideration
of this issue and, therefore, affirm the conclusion in the Forfeiture
Order that Ace willfully and repeatedly violated Section 73.1350 of
B. Denial of Prior History of Compliance Claim
9. We also deny Ace's request that we reconsider its history of
compliance claim so as to justify a reduction in the forfeiture
amount. It is undisputed that Ace was warned by agents from the Tampa
Office about its overpower operations on February 6, 2010, and that
this warning preceded the NAL. The record also shows that Ace was
observed by agents from the Tampa Office operating its station
overpower on February 7, February 26, September 22, and September 24,
2010.^ Therefore, we agree with the Forfeiture Order's finding that,
"given the multiple times in which it was found in violation of
Section 74.1235(e) after it had received [a] warning of the violation,
it is factually incorrect for Ace to assert that it has a history of
10. Furthermore, as discussed in the Forfeiture Order, it was appropriate
to reject Ace's history of compliance claim because of case precedent
indicating that Mr. Bennett, Ace's principal owner, was involved in an
unauthorized transfer of a station even before the agents investigated
Ace for possible violations of Sections 73.1350 and 74.1235(e) of the
Rules.^ We note that Ace did not dispute this finding in its Petition;
and this fact, alone, serves as a sufficient basis for rejecting Ace's
claim that it has a history of overall compliance with FCC
requirements. We therefore affirm the Forfeiture Order's denial of any
forfeiture reduction based on Ace's assertion that it has a history of
C. Denial of Inability to Pay Claim
11. Finally, we deny Ace's renewed request for reduction of the forfeiture
based on its inability to pay claim. Ace implies in its Petition that
changed financial circumstances are forcing it and its principal owner
into bankruptcy preparations, but Ace did not submit any supporting
documentation.^ After the Petition was filed, the Bureau provided Ace
an opportunity to supplement its Petition with documentation to
support its claim that it "has been in bankruptcy preparations,"^ yet
Ace simply resubmitted copies of tax returns that were already
considered in the Forfeiture Order.^ Ace explains that it is unable to
provide documentation of any bankruptcy preparations by asserting that
it "cannot even afford the retainer to pay the attorney to start any
type of proceedings, so until further notice everything just sits."^
Similarly, Ace's principal owner further asserts that he has hired a
law group to represent him, but provides no specific information or
documentation of this fact or of the purported "current house
foreclosure filed in Brevard County Court, plus several collections
from credit cards, and various financial judgments from others."^ In
the absence of financial and/or other reliable documentation necessary
to support or corroborate Ace's asserted changed financial
circumstances, we have insufficient basis by which to fully evaluate
Ace's request for reconsideration of its inability to pay claim and,
therefore, must deny its request.^
12. Because Ace's Petition does not demonstrate a material error or
omission in the underlying order or raise any additional facts that
justify reconsideration, we see no reason to disturb the
determinations reached in the Forfeiture Order. Accordingly, we affirm
the Forfeiture Order and find Ace liable for a monetary forfeiture in
the amount of $11,000 for willfully and repeatedly violating Sections
73.1350 and 74.1235(e) of the Rules. In its Petition, Ace requests the
opportunity to make payment under an installment plan arrangement.^ If
Ace wishes to make payment under such an arrangement, Ace is directed
to follow the instructions provided in paragraph 17, below.^
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED, pursuant to Section 405 of the
Communications Act of 1934, as amended,^ and Section 1.106 of the
Commission's rules,^ that the Petition for Reconsideration filed by
Ace of Hearts Disc Jockey Service, Inc. IS DENIED.
14. 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 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
violation of Sections 73.1350 and 74.1235(e) of the Rules.^
15. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Memorandum Opinion and Order.^ If the forfeiture
is not paid within the period specified, the case may be referred to
the U.S. Department of Justice for enforcement of the forfeiture
pursuant to Section 504(a) of the Act.^ Ace of Hearts Disc Jockey
Service, Inc. shall send electronic notification of payment to
SCR-Response@fcc.gov on the date said payment is made.
16. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and
FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
17. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer--Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.^ If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
18. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Ace of Hearts Disc Jockey Service, Inc. at P.O. Box
100095, Palm Bay, FL 32910.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
^ 47 U.S.C. S 405.
^ 47 C.F.R. S 1.106.
^ See Letter from Randy Bennett, Owner Ace of Hearts Disc Jockey Service,
Inc., to Dennis Carlton, Regional Director, South Central Region,
Enforcement Bureau (May 11, 2012) (Petition) (on file in EB-09-TP-0185).
^ See Ace of Hearts Disc Jockey Service, Inc., Forfeiture Order, 27 FCC
Rcd 4167 (Enf. Bur. 2012) (Forfeiture Order).
^ See id. See also 47 C.F.R. SS 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 more
comprehensive recitation of the facts and history of this case can be
found in the NAL and is incorporated herein by reference.
^ Forfeiture Order, 27 FCC Rcd at 4167, para. 2. 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 Station W277AN's signal at 82 mV/m,
92 mV/m, 74 mV/m, and 82 mV/m, respectively.
^ Id. 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.
^ Id. at 4167-68, para. 2. 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 NAL, 26 FCC Rcd at 3483-84, paras. 9, 11.
^ See Forfeiture Order, 27 FCC Rcd at 4168, para. 2 (citing 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-TOP-0185) (Response to NAL)).
^ See Forfeiture Order, supra note 4.
^ Id., 27 FCC Rcd at 4171, para. 8.
^ Id. at 4171-72, para. 9.
^ Petition at 2.
^ Id. Ace also alleges that the Forfeiture Order "totally ignored the
facts surrounding the demonstrated bias and verbal profanity of one of the
Tampa Field Inspectors." Id. We simply did not find any need to address
such unsubstantiated charges in the Forfeiture Order, especially because
they do not affect our decision on the merits of the case. In any event,
we address them now. Ace asserted in its response to the NAL that "one of
the agents engaged in a highly improper, unprofessional, yelling and
screaming episode toward the Licensee." Response to NAL at 3. However,
neither of the two agents present during the inspection recall such an
episode, and none of the individuals who submitted affidavits in support
of Ace's response mentioned verbal profanity or yelling. Accordingly, we
do not find this unsubstantiated allegation credible; and, in any event,
the Bureau's findings with respect to the violations would still stand.
Ace also states in its Petition (at 1) that the Tampa Office mailed the
Forfeiture Order to an old address. The Tampa Office did not mail the
Forfeiture Order to the P.O. Box that Ace identified in its Petition
because a previous letter mailed to that P.O. Box in January 2012 was
returned unclaimed. The Forfeiture Order was mailed to the last previously
delivered address. In any event, we find no harm to Ace on this issue,
since Ace ultimately received a copy of the Forfeiture Order and submitted
a timely petition for reconsideration.
^ See 47 C.F.R. S 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 18257, 18257, para. 2 (Enf. Bur. 2000) (citing WWIZ,
Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), aff'd sub.
nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert.
denied, 383 U.S. 967 (1966)). See, e.g., Ely Radio, LLC, Memorandum
Opinion and Order, 27 FCC Rcd 7608, 7610, para. 6 (Enf. Bur. 2012)
(providing standard of review for petitions for reconsideration).
^ EZ Sacramento, Inc., 15 FCC Rcd at 18257, para. 2.
^ See Forfeiture Order, 27 FCC Rcd at 4167-68, para. 2.
^ Id. at 4169-70, para. 6.
^ Id. at 4170, para. 6. The Bureau determined, after further review of the
facts, that the error in the application did not have a significant impact
on the station's transmitting output power and did not otherwise preclude
compliance with the other technical requirements specified on Ace's
license. The Bureau also recognized that Ace had since filed a license
modification application to authorize use of a two-antenna array.
^ See Petition at 2. Contrary to Ace's assertion, we were unable to locate
any applications filed in February 2010 that would have corrected Ace's
antenna violation. Based on Commission records, it appears that Ace
submitted a corrective application on June 6, 2011 (and not in February
2010). See License File No. BLFT-20070220AAA. See also Forfeiture Order,
27 FCC Rcd at 4170.
^ 47 C.F.R. SS 73.1350(a), 73.1635(a).
^ See Response to NAL, supra note 11.
^ NAL, 26 FCC Rcd at 3481-83, paras. 3, 8. In its Petition (at 2), Ace
avers that the Station is currently operating within its authorized power
level, but insists that any prior overpower violation was unintentional.
Ace also implies that the Commission's failure to inform Ace of its
overpower operations prior to the February 6, 2010 inspection mitigates
its culpability for those earlier violations. In the context of a
forfeiture action, however, a "willful" violation does not require a
finding that the rule violation was intentional. Rather, the term
"willful" means that the violator knew that it was taking or not taking
the action in question, irrespective of any intent to the violate the
Rules. See, e.g., Southern California Broadcasting Co., Memorandum Opinion
and Order, 6 FCC Rcd 4387 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
Thus, it was not necessary for agents to inform Ace of its violations
prior to February 6, 2010.
^ Forfeiture Order, 27 FCC Rcd at 4171, para. 8. Ace is correct that
paragraph 8 of the Forfeiture Order contained a typographical error, in
that there was only one warning, not "warnings." However, this error does
not alter the findings in the Forfeiture Order.
^ Id. As noted in the Forfeiture Order, licensee David Carus & Associates
admitted that, in 2004, it transferred full ownership of certain FM
translator stations and an Aural STL to Community Radio Foundation of
Florida, Inc., without prior Commission approval, and that Mr. Bennett was
a party to the unauthorized transfer based on his control of Community
Radio Foundation of Florida. See David Carus & Associates, Order, 26 FCC
Rcd 7521 (Enf. Bur. 2011).
^ See Petition at 2. See Neal Davis, File No. EB-11-MA-0009, Memorandum
Opinion and Order, DA 12-1534, 2012 WL 4470558, at *1, para. 3 (Enf. Bur.
Sept. 28, 2012) (reminding requesting party of the need to provide
financial or other documentation to support or corroborate asserted
^ Letter from Diane Law-Hsu, Regional Counsel, South Central Region,
Enforcement Bureau, to Randy Bennett, Principal of Ace of Hearts Disc
Jockey Services, Inc. (May 22, 2012) (on file in EB-09-TP-0185) (May 22,
2012 Letter to Ace).
^ See Marshall D. Martin, Memorandum Opinion and Order, 22 FCC Rcd 1076
(Enf. Bur. 2007) (rejecting consideration of regulatee's purported
bankruptcy status because it failed "to demonstrate that there is any
pending bankruptcy proceeding"). See also Adelphi Communications,
Forfeiture Order, 18 FCC Rcd 7652, 7654, para. 8 (Enf. Bur. 2003) (finding
that a Chapter 11 bankruptcy filing--alone, without submission of
financial documentation--does not support an inability to pay claim and,
therefore, does not provide a basis to adjust or cancel an assessed
^ Letter from Randy Bennett, Principal of Ace of Hearts Disc Jockey
Service, Inc., to Diane Law-Hsu, Regional Counsel, South Central Region,
Enforcement Bureau (June 10, 2012) (on file in EB-09-TP-0185).
^ Moreover, we continue to have questions regarding the extent of the
financial sources available to Ace, given evidence in the record that
suggests that third party sources have been contributing to Ace's
operations, which impacts consideration of Ace's inability to pay claim.
In response to the Petition, the Bureau requested additional documentation
regarding all of Ace's financial resources, and specifically requested
information about three entities believed to have provided financial
resources to Ace. See May 22, 2012 Letter to Ace, supra note 32. Ace,
however, failed to provide the requested information or to address, in any
way, the evidence amassed by the Bureau that these third parties have paid
for Ace's operational expenses. See 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); Forfeiture
Order, 27 FCC Rcd at 4172 n.32.
^ Petition at 2 ("Ace would like and request financial reconsideration
review of this ruling to reduce this amount and Ace agrees to enter into
an installment payment plan.").
^ In its Petition (at 3), Ace asks for "expedited processing and approval"
of pending applications, which Ace identified as BPFT-20110603AAA and
BRFT-20110913AAD. The Enforcement Bureau does not have final authority to
grant these pending applications. Any request for status information
concerning pending broadcast applications should be directed to the Media
^ 47 U.S.C. S 405.
^ 47 C.F.R. S 1.106.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
^ 47 C.F.R. SS 73.1350, 74.1235(e).
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 13-177
Federal Communications Commission DA 13-177