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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Playa Del Sol Broadcasters Licensee of Station K238AK
Palm Desert, California ) ) ) ) ) ) File Number: EB-08-SD-0088 NAL/Acct.
No.: 200832940003 FRN: 0004256426
ORDER ON REVIEW
Adopted: February 28, 2013 Released: March 1, 2013
By the Commission:
1. In this Order on Review (Order on Review), we deny the Application for
Review^ filed by Playa Del Sol Broadcasters (Playa Del Sol), the
licensee of Station K238AK, Palm Desert, California, pursuant to
Section 1.115 of the Commission's Rules (Rules). Playa Del Sol seeks
review of the Forfeiture Order issued by the Western Region,
Enforcement Bureau (Bureau)^ that assessed a $4,000 forfeiture against
the licensee for its willful and repeated violation of Section
74.1236(c) of the Rules.^ The noted violation concerned unauthorized
emissions from Station K238AK^ which resulted from Playa Del Sol's
failure to properly attenuate Station K238AK's emissions in the VHF
aviation band.^ For the reasons stated below, we affirm the Bureau's
2. Playa Del Sol uses translator Station K238AK to rebroadcast Station
KRCK-FM, which is a full power FM broadcast station licensed to Playa
Del Sol in Mecca, California. On March 12, 2008, the San Diego
District Office (San Diego Office) of the Bureau received a complaint
from the Riverside County Sheriff's Department of interference to
their helicopters when flying in the Indian Wells, California area.^
In response, on March 13, 2008, an agent from the San Diego Office
traveled to the location during normal business hours and detected the
audio of Station KRCK-FM on three separate frequencies in the VHF
aviation band.^ The agent determined that the three signals emanated
from the studio of Station KRCK-FM, which is collocated with Station
K238AK's transmitter.^ Field strength measurements made by the agent
on each of the three signals in the VHF aviation band showed that all
three were attenuated less than 60 dB from 95.5 MHz, the carrier
signal of Station K238AK.^ The next day, on March 14, 2008, the San
Diego agent returned to the site during normal business hours and
conducted another set of measurements with similar results.^ During
that inspection the agent requested that the translator station be
taken off the air and determined that whenever the Station K238AK
transmitter was switched off, all three signals previously measured in
the aviation band went off the air.^
3. Playa Del Sol does not dispute any of the above facts. Nor does it
deny that it operated Station K238AK on March 12, March 13, and March
14, 2008, or that Station K238AK was the source of the signals
measured by the San Diego agent on 109.5 MHz, 122.2 MHz, and 136.1 MHz
on March 13 and March 14, or that those signals violated the
requirements of Section 74.1236(c) of the Rules. Instead, Playa Del
Sol argues that, despite these facts, no forfeiture should be imposed
against it because its violation of Section 74.1236(c) was not
repeated or willful.^
4. In this Order on Review, we deny Playa Del Sol's Application for
Review and affirm the Bureau's Forfeiture Order. The forfeiture amount
in this case was assessed in accordance with section 503(b)(2)(E) of
the Communications Act of 1934, as amended (Act).^ That provision
states that any person who 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
Section 503's legislative history states that the definitions of "willful"
and "repeated" recited in section 312(f) of the Act also apply to Section
503^ and the Commission has so interpreted the terms.^ Thus, Section 503's
use of the term "willful" means the "conscious and deliberate commission
or omission of [any] act, irrespective of any intent to violate" the law,^
and the term "repeated" means "the commission or omission of such act more
than once or, if such commission is continuous, for more than one day."^
5. Playa Del Sol denies that its violation of Section 74.1236(c) of the
Rules was repeated. We disagree. Each of the three unauthorized
emissions by Station K238AK - which Playa Del Sol does not dispute -
constitutes a separate violation. Specifically, the FCC agent's field
measurements found each unauthorized emission was attenuated less than
60 dB from 95.5 MHz and therefore, each of the three unauthorized
emissions was a separate violation of Section 74.1236(c).
Consequently, Playa Del Sol violated Section 74.1236(c) three times,
or repeatedly, as the commission of the violation occurred more than
once. In addition, the agent's direct evidence of the field
measurements, obtained on each of the three spurs on two separate days
during normal business hours, confirmed and verified the Riverside
County Sheriff's Department's complaint of ongoing interference over
several weeks to multiple aviation frequencies.^ Consequently, Playa
Del Sol's violation was also repeated as each of the three violations
also occurred on successive days.^ Accordingly, we affirm the Bureau's
finding that the violation was repeated.^
6. Second, Playa Del Sol argues that its violations were not "willful"
because it did not definitely know that its transmitter was the source
of the unauthorized emissions until the San Diego agent conclusively
established this fact through testing on March 14, 2008.^ As noted
above, the legislative history to our forfeiture authority defines
"willful" as "the licensee knew he was doing the act in question,
irrespective of any intent to violate the law."^ There is no dispute
that Playa Del Sol consciously and deliberately operated Station
K238AK and, irrespective of any intent by the licensee to violate the
rules, that Station K238AK produced three emissions more than 600 kHz
outside its assigned channel of 95.5 MHz that were attenuated less
than 60 dB. Consequently, the Bureau correctly determined that Playa
Del Sol's violation was willful, as defined in Section 312(f)(1) of
the Act and for purposes of Section 503(b).^ Therefore, upon review of
the Application for Review and the entire record herein, we deny
Playa Del Sol's application and affirm the Bureau's Forfeiture Order.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the
Commission's Rules,^ that the Application for Review filed by Playa
Del Sol Broadcasters IS DENIED and the Forfeiture Order IS AFFIRMED.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.102(b)(3) of the
Commission's Rules,^ Playa Del Sol Broadcaster's request to stay the
effect of the Forfeiture Order IS DISMISSED AS MOOT.
9. Payment of the forfeiture ordered by the Bureau and affirmed by this
Order on Review 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 Order on Review.^ If the forfeiture is not paid
within the period specified, the case may be pursued by the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Playa Del Sol shall send electronic
notification of payment to WR-Response@fcc.gov on the date said
payment is made.
10. 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.
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. IT IS FURTHER ORDERED that this Order on Review shall be sent by
regular mail and by certified mail, return receipt requested, to Playa
Del Sol Broadcasters at 73-733 Fred Waring Drive, Suite 201, Palm
Desert, California, 92260, and Bruce A. Olcott, its counsel of record,
at Squire Sanders, Suite 500, 1201 Pennsylvania Avenue, N.W.,
Washington, D.C., 20004.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
^ Application for Review, Playa Del Sol Broadcasters, EB-08-SD-0088, filed
August 17, 2009 ("Application for Review").
^ Playa Del Sol Broadcasters, Forfeiture Order, 24 FCC Rcd 9142 (Enf.
Bur. Western Region 2009) ("Forfeiture Order"), aff'g Notice of Apparent
Liability for Forfeiture, NAL/Acct. No. 200832940003 (Enf. Bur., Western
Region, San Diego Office, rel. July 31, 2008) ("NAL").
^ 47 C.F.R. S 74.1236(c). Section 74.1236(c) of the Rules requires in
relevant part that the power of emissions appearing outside the assigned
channel shall be attenuated below the total power of the emission as
Distance of emission from center frequency Minimum attenuation below
Over 600 kHz...................................................60 dB
^ Specifically, Playa Del Sol failed to ensure that emissions appearing
outside the assigned channel greater than 600 kHz from the center
frequency had a minimum attenuation below the unmodulated carrier of 60
^ Playa Del Sol requests that we stay the effect of the Forfeiture Order
during the pendency of the Application for Review pursuant to Section
1.102(b)(3) of the Rules, 47 C.F.R. S 1.102(b)(3). As this Order on Review
resolves the Application for Review, we dismiss this request as moot.
^ The original complaint advised the FCC on March 12, 2008, that the
interference to multiple aviation frequencies had been ongoing for several
weeks and getting worse.
^ Specifically, the agent detected unauthorized emissions containing the
audio of Station KRCK-FM on aviation frequencies at 109.5 MHz, 122.2 MHz,
and 136.1 MHz.
^ Forfeiture Order, 24 FCC Rcd at 9142.
^ Id. at 9142 - 9143. The agent determined that the 109.5 MHz signal was
attenuated 18.0 dB from the carrier of Station K238AK, the 122.2 MHz
signal was attenuated 30.8 dB from the carrier of Station K238AK and the
136.1 MHz signal was attenuated 20.9 dB from the carrier of Station
^ Id. at 9143. The results of those measurements are as follows: the 109.5
MHz signal was attenuated 19.8 dB from the carrier of Station K238AK, the
122.2 MHz signal was attenuated 23.4 dB from the carrier of Station K238AK
and the 136.1 MHz signal was attenuated 18.0 dB from the carrier of
^ NAL at para. 6; Forfeiture Order, 24 FCC Rcd at 9144.
^ Application for Review at 2-5.
^ 47 U.S.C. S 503(b)(2)(E). See also 47 C.F.R. S 1.80 (b)(4); 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), recon. denied, 15 FCC
Rcd 303 (1999).
^ 47 U.S.C. S 503(b).
^ 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., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P10 (2001) (proposing a
forfeiture for, inter alia, a cable television operator's repeated signal
leakage); Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991) (applying Section 312(f)(1) definition
of "willful" to Section 503 forfeiture), recons. denied, 7 FCC Rcd 3454
^ 47 U.S.C. S 312(f)(1).
^ 47 U.S.C. S 312(f)(2).
^ Playa Del Sol admitted in its Application for Review that
post-inspection repairs to the translator amplifier revealed "spurious
emissions and a power supply failure." Application for Review at 4.
^ See, e.g., In the Matter of St. George Cable, Inc., Notice of Apparent
Liability for Forfeiture, 27 FCC Rcd 11447 P 21 (2012) (treating each of
the four days a cable operator failed to comply with the Commission's
cable signal leakage limit as separate violations).
^ Accordingly, we reject Playa Del Sol's assertion that its violations had
to be continuous to be considered "repeated." See Application for Review
at 2-3. Whether or not the unauthorized emissions occurred continuously is
not relevant to our determination, given that they occurred on separate
days. See also 47 U.S.C. S 312(f)(2); A-O Broadcasting Corp., Forfeiture
Order, 31 Communications Reg. (P&F) 411 P 12 (2003) (finding that
violations of EAS, main studio, and technical rules were "repeated"
because they occurred on more than one day or continued for more than one
^ Application for Review at 4.
^ See supra note 14.
^ 47 U.S.C. SS 312(f)(1), 503(b). Furthermore, as noted above, the Bureau
not only correctly determined that Playa Del Sol willfully violated
Section 74.1236(c), but also properly found that the licensee repeatedly
violated that rule. Therefore, a finding of willfulness was not essential
for imposition of the forfeiture. See, e.g., Infinity Broadcasting Corp.,
Order on Review, 24 FCC Rcd 4270 (2009).
^ 47 C.F.R. S 1.115(g).
^ 47 C.F.R. S 1.102(b)(3).
^ 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.
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Federal Communications Commission FCC 13-28
Federal Communications Commission FCC 13-28