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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Paulino Bernal Owner of Antenna Structure No. 1066001
Tulia, TX ) ) ) ) ) ) ) File No.: EB-11-DL-0122 NAL/Acct. No.:
201332500001 FRN: 0001696350 Facility ID: 1301
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: March 7, 2013 Released: March 7, 2013
By the District Director, Dallas Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Paulino Bernal, owner of antenna structure number 1066001
(the Antenna Structure), located in Tulia, TX, apparently willfully
and repeatedly violated Section 17.57 of the Commission's rules
(Rules),^ by failing to notify the Commission upon a change in
ownership information for the Antenna Structure. We conclude that Mr.
Bernal is apparently liable for a forfeiture in the amount of six
thousand dollars ($6,000). In addition, we direct Mr. Bernal to
submit, no later than thirty (30) calendar days from the release date
of this NAL, a statement signed under penalty of perjury that updated
ownership information for the Antenna Structure has been submitted to
2. Mr. Bernal is the licensee of AM Station DKTUE in Tulia, Texas^ and
acquired the station from Dove Media, LLP (Dove Media) on September
24, 2004.^ According to the radio station purchase agreement, Mr.
Bernal also acquired a "207 foot Andrews 4-face angle iron AM
broadcast tower" in Tulia, Texas from Dove Media on September 24,
2004.^ On February 10, 2012, an agent from the Enforcement Bureau's
Dallas Office (Dallas Office) informed Station DKTUE staff via
telephone that Mr. Bernal must update the ownership information in the
Commission's Antenna Structure Registration (ASR) database. As of
January 25, 2013, the Commission's ASR database still lists "KLGD
Attention to Bruce Campbell"^ as the owner of the Antenna Structure.
3. Section 503(b) of the Communications Act of 1934, as amended (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 Sections 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 day.^
A. Failure to Update Ownership Information for the Antenna Structure
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.^ According to Commission records, Mr. Bernal acquired
ownership of the Antenna Structure on September 24, 2004, but, as of
January 25, 2013, has not filed the required FCC Form 854 to update
the Antenna Structure's ownership. Based on the evidence before us, we
find that Mr. Bernal apparently willfully and repeatedly violated
Section 17.57 of the Rules by failing to notify the Commission of a
change in ownership for the Antenna Structure.
B. Proposed Forfeiture Amount and Reporting Requirement
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to file
required forms or information is $3,000.^ In assessing the monetary
forfeiture amount, we must also 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.^ Maintaining current ownership contact information in the
ASR database is particularly important, because it enables the
Commission and individuals to notify the antenna structure owner
promptly in the event of a lighting failure or other malfunction.
Because Mr. Bernal 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 $3,000.^
Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that Mr.
Bernal is apparently liable for a forfeiture in the amount of
6. We direct Mr. Bernal to submit a written statement, pursuant to
Section 1.16 of the Rules,^ signed under penalty of perjury, stating
that he has submitted an FCC Form 854 to the Commission to update the
ownership information for the Antenna Structure. Mr. Bernal shall also
certify that he will otherwise comply with the Commission's painting
and lighting requirements for the Antenna Structure.^ This statement
must be provided to the Dallas Office at the address listed in
paragraph 9 within thirty (30) calendar days of the release date 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 of the Commission's rules, Paulino Bernal is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of six thousand dollars ($6,000) for violation of Section 17.57
of the Rules.^
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Paulino Bernal SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. IT IS FURTHER ORDERED that Paulino Bernal SHALL SUBMIT a written
statement, as described in paragraph 6, within thirty (30) calendar
days of the release date of this Notice of Apparent Liability for
Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central Region,
Dallas Office, 9330 LBJ Freeway, Suite 1170, Dallas, TX 75243.
Paulino Bernal shall also e-mail the written statement to
10. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Paulino Bernal shall also send electronic
notification on the date said payment is made to
SCR-Response@fcc.gov. 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.
11. 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.
12. 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 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Dallas Office, 9330 LBJ Freeway, Suite 1170, Dallas,
TX 75243 and include the NAL/Acct. No. referenced in the caption.
Paulino Bernal also shall e-mail the written response to
13. 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
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail to Paulino Bernal at 307 East
Jackson, P.O. BOX 252, McAllen, TX 78505-0252.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
South Central Region
^ 47 C.F.R. S 17.57.
^ See License File No. BAL-RA1104XU.
^ See License File No. BAL-20040601AAA.
^ Bruce Campbell is the Vice President of Dove Media, LLP. See License
File No. BAL-20040601AAA.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ 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 . . . .").
^ See, e.g., Application for Review of Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons.
denied, 7 FCC Rcd 3454 (1992).
^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
^ Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
^ 47 C.F.R. S 17.57.
^ 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), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ See Quinn Broadcasting Inc., Notice of Apparent Liability for Forfeiture
and Order, 27 FCC Rcd 5787 (Enf. Bur. 2012) (proposing $6,000 forfeiture
for failure to update ASR ownership information for over eight years).
^ 47 C.F.R. S 1.16.
^ See 47 U.S.C. S 303(q); 47 C.F.R. SS 17.1 - 17.57. If the Antenna
Structure is dismantled, Mr. Bernal must submit another FCC Form 854 to
the Commission within 24 hours of completion of the dismantlement. See 47
C.F.R. S 17.57.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
^ 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.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
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Federal Communications Commission DA 13-327
Federal Communications Commission DA 13-327