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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-13-00007129
NAL/Acct. No.: 201232680005 FRN No.: 0003732435 Facility ID No.: 4077
MEMORANDUM OPINION AND ORDER
Adopted: May 15, 2014 Released: May 16, 2014
By the Acting Chief, Enforcement Bureau:
1. This Memorandum Opinion and Order denies a Petition for
Reconsideration (Petition) filed by AERCO Broadcasting Corporation
(AERCO), licensee of Station WSJU-TV in San Juan, Puerto Rico
(Station). We reject AERCO's request for cancellation or reduction of
the $4,000 forfeiture imposed by the Enforcement Bureau's South
Central Region for operating a studio to transmitter link (STL) on an
unauthorized frequency over a nine-month period. Specifically, we find
that AERCO failed to provide sufficient evidence supporting its claim
that it has an inability to pay the forfeiture. We also find that the
South Central Region properly considered a prior Notice of Apparent
Liability for Forfeiture (NAL) issued against AERCO in rejecting the
licensee's claim that it had a history of compliance with FCC rules.
2. As noted above, the South Central Region issued a Forfeiture Order
finding that AERCO violated Sections 301 of the Communications Act of
1934, as amended (Act),^ and Section 1.903(a) of the Commission's
rules^ (Rules) by operating an STL on an unauthorized frequency for
nine months.^ AERCO does not dispute the violations but requests that
the Commission further reduce the forfeiture amount.^ AERCO states
that the Enforcement Bureau "failed to follow the Commission's policy
of examining net income of a station" and should have reduced the
proposed forfeiture based on inability to pay, because the Station was
operating with a net income loss.^ AERCO also asserts that it is
entitled to a reduction based on history of compliance with the Rules
because the Enforcement Bureau improperly considered its prior NAL for
violation of the indecency rules.^ AERCO alleges that because it
requested that the proposed indecency forfeiture be canceled and the
Commission did not reach a substantive decision on whether the
programming violated the indecency rules, the apparent violations
should not have been considered.^ Therefore, AERCO asserts the
Enforcement Bureau should have granted its forfeiture reduction
request based on its otherwise compliant 40-year history.
3. This Memorandum Opinion and Order is issued pursuant to Section 405 of
the Act,^ and Section 1.106 of the Rules.^ 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 deny
4. Generally, the Commission has found that "a licensee's gross revenues
are the best indicator of its ability to pay a forfeiture."^ The
Commission, citing PJB Communications, has also held that "[i]f gross
revenues are sufficiently great . . . the mere fact that a business is
operating at a loss does not itself mean that it cannot afford to pay
a forfeiture."^ Such is the case here. The Commission does not, as
AERCO alleges, have a "policy" of examining net losses, but has in a
few isolated cases looked to other factors, including profits and
losses, to determine ability to pay. AERCO has failed to demonstrate
that it is experiencing a comparable level of financial distress. For
example, unlike First Greenville Corp. and Pinnacle, AERCO has not
indicated that it is unable to secure commercial financing and that
its owners have personally funded its losses or loaned the Station
considerable sums.^ Moreover, unlike Rish, AERCO services San Juan, a
city with a population of approximately 374,000.^ Thus, AERCO's
financial situation can be distinguished from the three cases noted by
it in which the Commission departed from utilizing gross revenues, and
we affirm the Bureau's prior decision to deny a reduction based on
inability to pay.
5. We also disagree with AERCO's allegation the Bureau improperly denied
its request for a reduction based on its history of compliance. It is
undisputed that AERCO was the subject of a prior NAL for broadcasting
programming which the Commission determined violated the Act and
Rules.^ The Bureau may rely on the underlying facts of non-final,
non-adjudicated forfeiture proceedings to determine history of
compliance, even when enforcement action on the basis of those facts
is barred by the statute of limitations.^ Accordingly, we deny the
Petition filed by AERCO.
IV. ORDERING CLAUSES
6. 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
AERCO Broadcasting Corporation IS DENIED.
7. 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,^
AERCO Broadcasting Corporation IS LIABLE FOR A MONETARY FORFEITURE in
the amount of four thousand dollars ($4,000) for violation of Section
301 of the Act.^
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 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.^ AERCO Broadcasting
Corporation shall send electronic notification of payment to
SCR-Response@fcc.gov on the date said payment is made.
9. 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.
10. 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,
11. 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 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
Acting Chief, Enforcement Bureau
^ The contents of File No. EB-FIELDSCR-12-00000602 have been incorporated
into File No. EB-FIELDSCR-13-00007129.
^ 47 U.S.C. S 301.
^ 47 C.F.R. S1.903(a).
^ See AERCO Broadcasting Corporation, Forfeiture Order, 28 FCC Rcd 15804
(Enf. Bur. 2013) (Forfeiture Order).
^ See Letter from John A. Borsari, Counsel for AERCO Broadcasting
Corporation, to Regional Director, South Central Region, Enforcement
Bureau (Dec. 17, 2013) (on file in EB-FIELDSCR-13-00007129) (Petition).
^ Id. at 4-5.
^ 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 (2006).
^ Petition at 2-3.
^ 47 U.S.C. S 405.
^ 47 C.F.R. S 1.106.
^ 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 also 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.
^ 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, 17106, para. 43 (1997), recon. denied, 15 FCC Rcd
303 (1999) (Forfeiture Policy Statement) (citing PBJ Communications,
Memorandum Opinion and Order, 7 FCC Rcd 2088, 2089, para 8 (1992)). See
Local Long Distance, Inc., Order of Forfeiture, 15 FCC Rcd 24385 (2000)
(forfeiture not deemed excessive where it represented approximately 7.9
percent of the violator's gross revenues); Hoosier Broadcasting Corp.,
Forfeiture Order, 14 FCC Rcd 3356 (Compl. & Inf. Bur. 1999), aff'd by
Memorandum Opinion and Order, 15 FCC Rcd 8640 (Enf. Bur. 2000) (forfeiture
not deemed excessive where it represented approximately 7.6 percent of the
violator's gross revenues).
^ Forfeiture Policy Statement, 12 FCC Rcd at 17106, para. 43 (citing PBJ
Communications, 7 FCC Rcd at 2089, para 8).
^ Cf. First Greenville Corp., Memorandum Opinion and Order and Forfeiture
Order, 11 FCC Rcd 7399, 7403, para. 13 (1996) (First Greenville Corp.)
(considering that the station's losses exceeded its income and that the
sole shareholder had funded those losses and received no income from the
station when reducing proposed forfeiture); Pinnacle Communications, Inc.,
Memorandum Opinion and Order, 11 FCC Rcd 15496, 15498, para. 7 (1996)
(Pinnacle) (considering profit and loss statement when two stations were
assigned to a third party to avoid foreclosure based on the default of a
$4 million loan. Licensee and its sole shareholder received no cash from
the sale, and the licensee still owed the sole shareholder significant
^ According to 2013 census data, San Juan, Puerto Rico has a population of
374,682. United States Census Bureau, Cumulative Estimates of Resident
Population Change and Rankings: April 1, 2010 to July 1, 2013 (Mar. 2014),
(last visited May 15, 2012). Cf. Benito Rish, Memorandum Opinion and
Order, 10 FCC Rcd 2861, 2862, para. 6 (1995) (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).
^ See supra note 7.
^ It does not matter that AERCO previously contested the prior notice and
the Commission did not make a final determination whether the conduct
violated the Act or Rule provisions at issue, because, as the Commission
has noted, in such cases, "the licensee will always have the opportunity
to present evidence that the underlying facts relied on by the Commission
did not constitute a violation." Forfeiture Policy Statement, 12 FCC Rcd
at 17104, para. 36. That the statute of limitations imposed by Section
503(b)(6) of the Act has run on those apparent violations does not bar our
reliance on the facts that provided the basis for the earlier NAL, since
we are not imposing a forfeiture based on that conduct, but rather only
considering it in evaluating AERCO's mitigation claim here.
^ 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 U.S.C. S 301.
^ 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 14-668
Federal Communications Commission DA 14-668