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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
A Radio Company, Inc. ) File Number EB-05-SJ-025
Licensee of Station WEGA )
P.O. Box 1488 ) NAL/Acct. No.200632680001
Vega Baja, PR 00694 )
Facility ID # 69853 ) FRN 0010555654
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October
25, 2005
By the Resident Agent, San Juan Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that A Radio Company, Inc. (``A Radio''),
licensee of AM radio station WEGA, in Vega Baja, Puerto Rico,
apparently willfully violated Sections 73.49 and 73.3526(e) of
the Commission's Rules1 (``Rules'') by failing to enclose an
antenna tower having radio frequency potential at the base
within an effective locked fence and failing to maintain a
complete public inspection file and apparently willfully and
repeatedly violated Section 73.1350(a) of the Rules2 by failing
to operate the station in accordance with the terms of the
station authorization. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended (``Act''),3 that
A Radio is apparently liable for a forfeiture in the amount of
fifteen thousand dollars ($15,000).
II. BACKGROUND
2. On August 25, 2005, in response to a complaint, agents
from the Commission's San Juan Office of the Enforcement Bureau
conducted an inspection of station WEGA located in Vega Baja,
Puerto Rico. The agent observed that the station's public file
did not contain any issues programs lists. The agent also
observed that the easternmost antenna structure, which had
radio frequency potential at its base, was not enclosed within
an effective locked fence. Moreover, the agent observed a
sizable hole on the right side of the perimeter property fence,
which would allow access to the property. Station WEGA is
authorized to utilize three uniform cross section, series
excited guyed towers. Its station authorization requires that
they use a two-tower directional array during the day and a
three-tower directional array at night. The station's
consulting engineer stated that the station had been operating
its antenna system at night using the daytime directional
parameters for more than one year. The consulting engineer
provided copies of a report dated May 21, 2005 and a status
report letter dated July 11, 2005, which he had provided to the
station owner and which explicitly described problems with the
equipment that switches the directional antenna system from
daytime to nighttime patterns. The agent found no evidence
that special temporary authority had been sought or granted,
which would authorize nighttime operation using daytime
directional parameters.4
III. DISCUSSION
3. Section 503(b) of the 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. The term ``willful''
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.5 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.6
4. Section 73.49 of the Rules requires that antenna towers
having radio frequency potential at the base must be enclosed
within effective locked fences or other enclosures. Individual
tower fences need not be installed if the towers are contained
within a protective property fence. On July 25, 2005, an agent
observed that the easternmost antenna structure had radio
frequency potential at the base and that it was not enclosed
within any fence. The agent also observed a large hole in the
right side of the perimeter property fence, which would allow
access to the antenna structure. Thus, the antenna structure
was not contained within a protective property fence.
5. Section 73.1350(a) of the Rules states that each
licensee is responsible for maintaining and operating its
broadcast station in a manner which complies with the technical
rules set forth elsewhere in this part and in accordance with
the terms of the station authorization. On July 25, 2005, the
station's consulting engineer informed an agent that station
WEGA had been transmitting with the directional daytime pattern
at night for more than a year.
6. Section 73.3526(e) of the Rules requires commercial
broadcast stations to maintain for public inspection, a file
containing materials listed in that section.7 On July 25,
2005, the station's public file did not contain any issues
programs lists.8
7. Based on the evidence before us, we find that A Radio
apparently willfully violated Sections 73.49 and 73.3526(a) of
the Rules by failing to enclose an antenna tower having radio
frequency potential at the base within an effective locked
fence and failing to maintain a complete public inspection file
and apparently willfully and repeatedly violated Section
73.1350(a) of the Rules by failing to operate its station in
accordance with the terms of the station authorization.
8. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, (``Forfeiture Policy
Statement''), and Section 1.80 of the Rules, the base
forfeiture amount for AM tower fencing is $7,000 and the base
forfeiture amount for failure to maintain directional pattern
within prescribed parameters is $7,000.9 Although the base
forfeiture amount for violation of the public file rules is ten
thousand dollars ($10,000), because station WEGA's public file
contained a portion of the required items, a downward
adjustment of the base forfeiture amount for this violation to
$1,000 is warranted. 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 Act, which include the
nature, circumstances, extent, and gravity of the violations,
and with respect to the violator, the degree of culpability,
and history of prior offenses, ability to pay, and other such
matters as justice may require.10 Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to
the instant case, we conclude that A Radio is apparently liable
for a $15,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's
Rules, A Radio Company, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen
thousand dollars ($15,000) for violation of Sections 73.49,
73.1350(a), and 73.3526(e) of the Rules.11
10. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Commission's Rules within thirty days of the
release date of this Notice of Apparent Liability for
Forfeiture, A Radio Company, Inc. SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
11. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106.
12. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, San Juan, Room 762, Hato Rey, PR, 00918 and must
include the NAL/Acct. No. referenced in the caption.
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 documentation submitted.
14. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Associate Managing
Director, Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.8
15. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to A Radio
Company, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent
San Juan Office
South Central Region
Enforcement Bureau
_________________________
147 C.F.R. §§ 73.49, 73.3526(e).
247 C.F.R. § 73.1350(a).
347 U.S.C. § 503(b).
4Station WEGA submitted a request for special temporary authority
on September 2, 2005 to operate with one non-directional antenna.
5Section 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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
6Section 312(f)(2) of the Act, 47 U.S.C. § 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.''
747 C.F.R. § 73.3526(e).
8See 47 C.F.R. § 1.1914.
912 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1047 U.S.C. § 503(b)(2)(D).
1147 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
73.49, 73.1350(a), 73.3526(e).
8See 47 C.F.R. § 1.1914.