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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Hacienda San Eladio, Inc. Owner of Antenna Structure No.
1222789 Juncos, Puerto Rico ) ) ) ) ) ) ) File No.: EB-11-SJ-0049
NAL/Acct. No.: 201232680002 FRN: 0008032708
Adopted: February 8, 2013 Released: February 8, 2013
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of four thousand five hundred dollars ($4,500) to Hacienda San Eladio,
Inc. (Hacienda), owner of antenna structure number 1222789 (the
Antenna Structure), located in Juncos, Puerto Rico, for its willful
and repeated violation of Section 17.57 of the Commission's rules
(Rules).^ The noted violation involved Hacienda's failure to notify
the Commission upon a change in ownership information for the Antenna
2. On February 27, 2012, the Enforcement Bureau's San Juan Office (San
Juan Office) issued a Notice of Apparent Liability for Forfeiture and
Order (NAL) ^ ^ to Hacienda for its apparent violation of Section
17.57 of the Rules. Hacienda submitted a response to the NAL
requesting cancellation or reduction of the proposed $4,500
forfeiture, because "Hacienda inadvertently overlooked filing an
update with the Commission regarding the Antenna Structure's
ownership. When apprised of the oversight via the NAL, Hacienda
immediately remedied the matter and filed the FCC Form 854 to update
the Commission's records."^
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 Hacienda'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 discussed below, we have considered Hacienda's response
in light of these statutory factors, and find that cancellation or
reduction of the forfeiture is not warranted.
4. Section 17.57 of the Rules requires owners of registered antenna
structures to immediately notify the Commission, using FCC Form 854,
upon any change in structure height or change in ownership
information.^ It is undisputed that Hacienda acquired the Antenna
Structure in 2003 and, as of January 23, 2012, had not updated the
ownership information for the structure in the Antenna Structure
Registration (ASR) database. In fact, Hacienda did not update its
ownership information until April 23, 2012.^ In its NAL Response,
Hacienda does not contest that it failed to update the ownership
information, but states that the violation was inadvertent.^ The
Commission has held, however, that violations resulting from
inadvertent error or failure to become familiar with the Commission's
requirements are willful violations.^ Thus, based on the evidence
before us, we find that Hacienda willfully and repeatedly violated
Section 17.57 of the Rules by failing to immediately notify the
Commission upon a change in ownership information for the Antenna
5. We now consider Hacienda's assertion that the proposed forfeiture
failed to take into account the nature and circumstances of the
violation, namely that the violation resulted from a "single
oversight." We disagree. The Commission has long held that
administrative oversight or inadvertence is not a mitigating factor
warranting a downward adjustment of a forfeiture.^ We find no grounds
to depart from the well established Commission precedent in this case.
Hacienda also questions the upward adjustment, alleging that a single
oversight is not a "repeated and somehow willful flagrant disregard"
of the Rules.^ The term "repeated" means "more than once, or where the
act is continuous, for more than one day."^ Here, the violation
existed continuously for over eight years. Section 1.80 of the Rules
includes "repeated or continuous violation" as one of several upward
adjustment criteria when deciding upon a forfeiture amount.^ Thus, we
conclude the upward adjustment of the base forfeiture^ was warranted
given the repeated nature of the violation.^
6. Finally, Hacienda claims that the Commission should consider that it
promptly filed the FCC Form 854 upon receipt of the NAL. We decline to
reduce or cancel the proposed forfeiture on these grounds. Hacienda's
post-NAL submission of an FCC Form 854 does not nullify or mitigate
the violation, because corrective action to come into compliance with
the Rules is expected.^ Therefore, based on our review of the record,
we hereby affirm the NAL and assess a forfeiture in the amount of
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, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Hacienda San
Eladio, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of four
thousand five hundred dollars ($4,500) for violation of Section 17.57
of the Commission's rules.^
8. 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 Forfeiture 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.^ Hacienda San Eladio, Inc. shall send
electronic notification of payment to SCR-Response@fcc.gov on the date
said payment is made. 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
* 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.
9. 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.
10. 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 Hacienda San Eladio, Inc. at PO Box 437, Rio Blanco, PR
00744-0437, and to its counsel, Francisco Montero, Fletcher, Heald &
Hildreth, P.L.C., 1300 North 17^th Street, 11^th Floor, Arlington, VA
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
South Central Region
^ 47 C.F.R. S 17.57.
^ Hacienda San Eladio, Inc., Notice of Apparent Liability for Forfeiture
and Order, 27 FCC Rcd 2086 (Enf. Bur. 2012). A comprehensive recitation of
the facts and history of this case can be found in the NAL and is
incorporated herein by reference.
^ Letter from Francisco Montero, Fletcher, Heald & Hildreth, P.L.C., to
San Juan Office, South Central Region, Enforcement Bureau, at 1 (May 3,
2012) (on file in EB-11-SJ-0049) (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 Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 C.F.R. S 17.57.
^ NAL Response, Declaration of Pablo Reyes Martinez, Vice President of
Hacienda San Eladio, Inc. See also Antenna Structure Registration Database
for antenna structure number 1222789.
^ NAL Response at 1-2.
^ See, e.g., USA Teleport, Inc., Memorandum Opinion and Order, 26 FCC Rcd
6431, 6434, para. 9 (Enf. Bur. 2011) (ignorance of a filing requirement
does not negate willfulness of failure to file); Heidelberg College,
Forfeiture Order, 24 FCC Rcd 11923, 11924, para. 6 (Media Bur. 2009)
(unintentional failure to file timely license renewal is willful).
^ See, e.g., America Movil, S.A.B. de C.V., Parent of Puerto Rico
Telephone Company, Inc., Notice of Apparent Liability for Forfeiture, 26
FCC Rcd 8672 (Enf. Bur. 2011) (administrative oversight or inadvertence is
not mitigating factor); Application for Review of Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, para.
3 (1991), recons. denied, 7 FCC Rcd 3454 (1992) (stating that
"inadvertence . . . is at best, ignorance of the law, which the Commission
does not consider a mitigating circumstance").
^ NAL Response at 2.
^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 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 . . . .").
^ 47 C.F.R. S 1.80. See also Forfeiture Policy Statement, 12 FCC Rcd
^ The NAL stated "[b]ecause Hacienda has failed to notify the Commission
regarding the change in ownership for over eight years, we find this
violation particularly egregious and warranting an upward adjustment of
$1,500" and cited a case which imposed an upward adjustment in forfeiture
due to the duration of the violation. NAL, 27 FCC Rcd at 2088. Thus, the
apparent violation was considered egregious due to the eight-year duration
of the violation.
^ Cf. P&Y Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 1444 (Enf. Bur. 2011 (imposing a $3,000 forfeiture
for failing to update antenna structure ownership information for three
years) (forfeiture paid).
^ See, e.g., International Broadcasting Corporation, Order on Review, 25
FCC Rcd 1538 (2010) (holding post-inspection remedial compliance efforts
do not warrant mitigation of forfeiture).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
^ 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 13-179
Federal Communications Commission DA 13-179