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Federal Communications Commission
Washington, D.C. 20554
In the Matter of AERCO Broadcasting Corporation Licensee of Station
WSJU-TV, San Juan, PR 00927 ) ) ) ) ) ) ) File No.:
EB-FIELDSCR-12-00000602 NAL/Acct. No.: 201232680005 FRN No.: 0003732435
Facility ID No.: 4077
Adopted: November 18, 2013 Released: November 18, 2013
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of four thousand dollars ($4,000) to AERCO Broadcasting
Corporation (AERCO), licensee of Station WSJU-TV in San Juan, Puerto
Rico (Station), for willfully and repeatedly violating Section 301 of
the Communications Act of 1934, as amended (Act), and Section 1.903(a)
of the Commission's rules (Rules).^ The noted violations involved
AERCO's operation of a studio-to-transmitter link (STL) on an
2. On July 30, 2012, the Enforcement Bureau's San Juan Office (San Juan
Office) issued a Notice of Apparent Liability for Forfeiture and Order
(NAL) ^ for ten thousand dollars ($10,000) to AERCO for operating its
STL on the frequency 2067.5 MHz without a license.^ In response to the
NAL, AERCO clarifies that its employees incorrectly reported to FCC
agents that it did not have a license to operate an STL.^ AERCO asks
that we consider canceling the forfeiture because it had (and still
has) a valid microwave STL license (i.e., WLJ345) and that, as of
August 3, 2012, it has changed the frequency for its STL from 2067.5
MHz to 6912.5 MHz, a frequency that is within the frequency range
authorized by its license.^ In the alternative, AERCO requests that we
consider reducing the forfeiture based on its history of compliance
with the Rules and its inability to pay.^
3. Given the clarifications in AERCO's filing, the San Juan Office, on
December 31, 2012, requested additional information from AERCO about
the operations of its STL.^ In response, AERCO states that it operated
the STL on 2067.5 MHz for approximately nine months prior to the
agent's inspection on May 17, 2012.^ AERCO explains that it chose to
do so because the station, at that time, could not afford to replace
defective equipment, and that the available equipment was otherwise
capable of operating on 2067.5 MHz.^ Finally, AERCO confirms that it
has since purchased new equipment capable of operating on 6912.5 MHz
on July 12, 2012; that it installed the equipment two days after
delivery; and that it is now in full compliance with the Rules.^
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
Forfeiture Policy Statement.^ In examining AERCO'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
5. Because AERCO acknowledges that it operated its STL on an unauthorized
frequency for approximately nine months, in violation of Section 301
of the Act and Section 1.903 of the Rules, we deny its request for
cancellation of the forfeiture; however, we find that a reduction of
the forfeiture is warranted based on the clarification provided
concerning its STL license. Section 301 of the Act states that that no
person shall use or operate any apparatus for the transmission of
energy or communications or signals by radio within the United States,
except under and in accordance with the Act and with a license issued
by the Commission.^ Section 1.903(a) of the Rules provides that
stations in the Wireless Radio Services must be used and operated only
in accordance with the rules applicable to their particular service
and with a valid authorization granted by the Commission.^ Section
1.903(b) further provides that the "holding of an authorization does
not create any rights beyond the terms, conditions, and period
specified in the authorization."^ Thus, although AERCO may not have
been engaged in unlicensed operation of an STL, as originally
determined, AERCO nevertheless willfully and repeatedly violated
Section 301 of the Act and Section 1.903(a) of the Rules by operating
its STL link on an unauthorized frequency.^ However, because AERCO's
operations were unauthorized, as opposed to unlicensed, we reduce the
forfeiture from $10,000 to $4,000, the base forfeiture amount for
operating a microwave STL on an unauthorized frequency.^
6. We deny AERCO's request for a forfeiture reduction based on history of
compliance and inability to pay. With respect to its history of
compliance claim, we find that, contrary to AERCO's assertion, our
records show that AERCO does not have a history of compliance with the
Rules. Specifically, on February 21, 2006, the Commission issued a
notice of apparent liability for forfeiture against AERCO for
apparently violating indecency rules.^ With respect to AERCO's
inability to pay claim, the Commission has determined that, in
general, gross revenues are the best indicator of an ability to pay a
forfeiture.^ In this regard, based on the financial documents provided
by AERCO, we conclude that its gross revenues are sufficient to
support the $4,000 forfeiture.^ In its response to the NAL, AERCO also
asks that we consider its losses.^ Although the Commission has in a
few limited cases looked to other factors, including profits and
losses, to determine ability to pay, none of the circumstances extant
in those cases (which reflect licensees in several financial distress)
exist here.^ We find that the supporting information and documents
that AERCO submitted do not reflect a severely distressed company; nor
do they reflect a company incapable of paying a $4,000 forfeiture.
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, AERCO
Broadcasting Corporation IS LIABLE FOR A MONETARY FORFEITURE in the
amount of four thousand dollars ($4,000) for violations of Sections
301 of the Act and Section 1.903(a) of the 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.^ AERCO Broadcasting Corporation 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 making full payment over time 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 Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to AERCO
Broadcasting Corporation at 1508 Calle Bori, Urb. Antonsanti, San Juan, PR
00927; and to its attorney, John A. Borsari, Borsari & Assoc., PLC, P.O.
Box 100009, Arlington, VA 22210.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
^ 47 U.S.C. S 301; 47 C.F.R. S 1.903(a).
^ See AERCO Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture and Order, 27 FCC Rcd 8873 (Enf. Bur. 2012) (NAL). 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 John A. Borsari, Attorney for AERCO Broadcasting
Corporation, to San Juan Office, Enforcement Bureau at 2 (Aug. 29, 2012)
(on file in EB-FIELDSCR-12-00000602) (NAL Response).
^ Id. See also Universal Licensing System for Call Sign WLJ345.
^ NAL Response at 3-5.
^ Letter from William Berry, Resident Agent, San Juan Office, Enforcement
Bureau, to AERCO Broadcasting Corporation (Dec. 31, 2012) (on file in
^ Letter from John A. Borsari, Attorney for AERCO Broadcasting
Corporation, to San Juan Office, Enforcement Bureau at 1 (Feb. 8, 2013)
(on file in EB-FIELDSCR-12-00000602).
^ Id. at 2.
^ 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 U.S.C. S 301.
^ 47 C.F.R. S 1.903(a).
^ 47 C.F.R. S 1.903(b).
^ See, e.g., Bryn Mawr Hospital, Notice of Apparent Liability for
Forfeiture and Order, 27 FCC Rcd 11002 (Enf. Bur. 2012) (finding licensee
in violation of Section 301 of the Act and Section 1.903 of the Rules for
operating licensed transmitters on two unauthorized frequencies)
(forfeiture paid in full).
^ The base forfeiture amount for unlicensed operation is $10,000 (see 47
C.F.R. S 1.80), which is the forfeiture amount originally proposed in the
NAL, given the record at that time. See NAL, supra note 2. To the extent
that AERCO is also arguing that no forfeiture should be imposed because it
is now operating an STL on an authorized frequency, such request is
denied. In this regard, the Commission has consistently held that
corrective action taken to come into compliance with Commission rules or
policy is expected, and does not nullify or mitigate any prior violations.
See Cumulus Licensing Corp., Forfeiture Order, 19 FCC Rcd 24825, 24818,
para. 15 (Enf. Bur. 2004). See also AT&T Wireless Services, Inc.
Forfeiture Order, 17 FCC Rcd 21866, 21871 (2002); Seawest Yacht Brokers,
Forfeiture Order, 9 FCC Rcd 6099 (1994) (corrective action taken to comply
with the Rules is expected, and does not mitigate any prior forfeitures or
^ See Complaints Regarding Various Television Broadcasts Between February
2, 2002 and March 8, 2002, Notice of Apparent Liability and Memorandum
Opinion and Order, 21 FCC Rcd 2664, 2678-84, paras. 52-71 (2006). Although
the statute of limitations for pursuing forfeiture action in this case has
expired, the Commission can still rely on the facts underlying the notice
of apparent liability, which have not been vacated. See Tidewater
Communications LLC, Memorandum Opinion and Order, 21 FCC Rcd 14589, 14591,
para. 8 (Enf. Bur. 2006) (finding that because a Notice of Violation
against the licensee was never cancelled, there remained a history of
non-compliance with the Rules). Furthermore, even if AERCO could
demonstrate a history of compliance with the Rules, we find that the
forfeiture amount remains appropriate, given the facts and circumstances
of this case.
^ See Local Long Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000)
(forfeiture not deemed excessive where it represented approximately 7.9
percent of the violator's gross revenues); Hoosier Broadcasting
Corporation, Forfeiture Order, 15 FCC Rcd 8640 (2002) (forfeiture not
deemed excessive where it represented approximately 7.6 percent of the
violator's gross revenues).
^ The $4,000 forfeiture falls within the percentage range that the
Commission has previously found acceptable.
^ See NAL Response at 3-4.
^ See id. at 5 (citing First Greenville Corporation, Memorandum Opinion
and Order and Forfeiture Order, 11 FCC Rcd 7399 (1996) (First Greenville);
Benito Rish, Memorandum Opinion and Order, 10 FCC Rcd 2861 (1995) (Rish)).
Unlike First Greenville, AERCO has not indicated that its owners have
personally funded its losses, loaned it significant funds, and received no
income from it. Cf. First Greenville, 11 FCC Rcd at 7403 (considering that
the station's losses exceeded its income and that the sole shareholder
funded those losses and received no income from the station when reducing
proposed forfeiture). Moreover, unlike the affected small community in
Rish, AERCO services San Juan, a city with a population of 381,931 (based
on 2010 Census). See
http://2010.census.gov/2010census/popmap/ipmtext.php?fl=72 (last visited
Nov. 7, 2012). Cf. Rish, 10 FCC Rcd at 2862 (considering the station's
unprofitable history and the fact that it was a directional daytime-only
AM station serving a small community of license with a population of 425
when reducing proposed forfeiture).
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
^ 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 13-2199
Federal Communications Commission DA 13-2199