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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-SJ-019
)
Clamor Broadcasting Network Inc. ) NAL/Acct. No.200332680004
Owner of Antenna Structure )
located atop the ) FRN 0008403388
Atlantico Condominium on )
Naranjal Street, in Levittown,
Puerto Rico
Bayamon, Puerto Rico
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 14, 2003
By the Enforcement Bureau, San Juan Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Clamor Broadcasting Network
Inc., owner of an unregistered antenna structure located
atop the Atlantico Condominium on Naranjal Street,
Levittown, Puerto Rico, apparently liable for a forfeiture
in the amount of three thousand dollars ($3,000) for willful
and repeated violation of Section 17.4(a) of the
Commission's Rules (``Rules'').1 Specifically, we find
Clamor Broadcasting Network Inc. apparently liable for
failure to register its antenna structure with the
Commission.
II. BACKGROUND
2. On March 7, 2003, agents from the Commission's San
Juan office inspected the antenna structure located at
coordinates 18-26-47.80 N / 066-10-24.60 W, atop the
Atlantico Condominium in Levittown, Puerto Rico. The
structure consisted of a 120 foot tower on top of a building
resulting in a total height above ground of over 220 feet.
The structure had a small hand written sign that read ``FCC
Temporary Tower Registration 1011531.'' The Commission's
Antenna Structure Registration database contained no record
of this registration number or any record of registration
for this structure. The agents interviewed Mr. Rafael
Cerra, engineer for radio station WKVN-FM. Clamor owns
WKVN-FM and is the sole user of the antenna structure. Mr.
Cerra stated that Clamor owns the antenna structure and that
Clamor filed an application to register the structure on
December 30, 1996, but the FCC returned the application on
March 19, 1997 due to several deficiencies. One of the
deficiencies in the application concerned Clamor's failure
to obtain the required Federal Aviation Administration
(``FAA'') clearance for the proposed structure prior to
registration. In 1999, Clamor obtained an aeronautical
study for the structure from the FAA that recommended the
structure be painted and lighted. There was no evidence
that Clamor had reapplied for registration after December
30, 1996.
III. DISCUSSION
3. Section 17.4(a) requires that the owner of any
proposed or existing antenna structure that requires notice
of proposed construction to the FAA must register the
structure with the Commission. Clamor's antenna structure
required notification to the FAA, and, therefore,
registration with the Commission, because the structure
exceeded 200 feet in height above ground level.2 From at
least December 30, 1996, until March 7, 2003, Clamor failed
to register its antenna structure with the Commission.
4. Based on the evidence before us, we find Clamor
Broadcasting Network Inc. willfully3 and repeatedly4
violated Section 17.4(a) of the Rules by failing to register
its antenna structure with the Commission.
5. Pursuant to Section 1.80(b)(4) of the Rules,5 the
base forfeiture amount for failure to file required forms or
information (failure to register an antenna structure with
the Commission) is three thousand dollars ($3,000). In
assessing the monetary forfeiture amount, we must also take
into account the statutory factors set forth in Section
503(b)(2)(D) of the Communications Act of 1934, as amended
(``Act''), which include 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.6 Considering the entire record and applying
the factors listed above, this case warrants a $3,000
forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,7 and Sections 0.111, 0.311 and
1.80 of the Rules,8 Clamor Broadcasting Network Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of three thousand dollars ($3,000) for willful
and repeated violation of Section 17.4(a) of the Rules by
failing to register its antenna structure with the
Commission.
7. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Clamor Broadcasting Network Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.9
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
10. 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 documentation
submitted.
11. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
12. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Clamor Broadcasting Network Inc., P.O.
Box 40000, Bayamon, PR 00958-9000.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
San Juan Office, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.4(a).
2 See 47 C.F.R. § 17.7(a).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed
under Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or
omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any
intent to violate any provision of this Act . . . .'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387-88
(1991).
4 The 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.'' 47
U.S.C. § 312(f)(2).
5 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.