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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Del Rosario Talpa, Inc. ) File Number: EB-06-SF-198
Licensee of Station KNCR(AM) ) NAL/Acct. No.: 200732960002
Fortuna, California ) FRN: 0013789524
Facility ID # 39472 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 22, 2006
By the District Director, San Francisco Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Del Rosario Talpa, Inc. ("Del Rosario Talpa"), licensee of
broadcast station KNCR (AM), in Fortuna, California, apparently
willfully and repeatedly violated Section 73.1350(a) of the
Commission's Rules ("Rules") by operating station KNCR at an
unauthorized location. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Del Rosario Talpa
is apparently liable for a forfeiture in the amount of four thousand
dollars ($4,000).
II. BACKGROUND
2. On August 22, 2006, in response to a complaint, an agent from the
Enforcement Bureau's San Francisco Office monitored KNCR's signal on
frequency 1090 kHz in Fortuna, California. Using radio direction
finding equipment, the agent traced the source of KNCR's broadcast
signal to an antenna located at 2200 Smith Lane, Fortuna, California.
Later that day, the agent conducted an inspection of the KNCR studio.
The inspection of the KNCR studio at 2200 Smith Lane revealed that
KNCR was transmitting from that location.
3. According to KNCR's license, the KNCR transmitter should be located at
3560 Hillras Way, Fortuna, California, with coordinates of 40-o 33'
30'' north latitude, 124 -o 07' 24'' west longitude. The San Francisco
agent's inspection revealed that the coordinates of the current
location of the KNCR transmitter at 2200 Smith Lane, Fortuna,
California, are approximately 40DEG 35'32" north latitude and 124DEG
08'40" west longitude, approximately two miles from its authorized
location.
4. On October 16, 2006, after being contacted by the San Francisco agent
concerning the unlicensed KNCR location, the KNCR consulting engineer
informed the agent that KNCR had been operating its transmitter from
the 2200 Smith Lane location since November 6, 2005. The consulting
engineer also informed the agent that KNCR was in the process of
filing for a Special Temporary Authority ("STA") from the Commission
to use that location.
III. DISCUSSION
5. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. Section 73.1350(a) of the Commission's rules states "[e]ach licensee
is responsible for maintaining and operating its broadcast station in
a manner which complies with the technical rules . . . and in
accordance with the terms of the station authorization." On August 22,
2006, the San Francisco agent observed that KNCR was transmitting from
a location that was not authorized on the KNCR license. KNCR staff
informed the San Francisco agent that the station had been
transmitting from that location since November, 2005. Therefore, the
violation was willful. The violation occurred for more than one day,
therefore, it was repeated. Since the agent's inspection and inquiry,
Del Rosario Talpa, Inc., has filed for and received an STA for KNCR.
We note that the Commission has stated in the past that a licensee is
expected to correct errors when they are brought to the licensee's
attention and that such correction is not grounds for a downward
adjustment in the forfeiture.
7. 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 violation of the operation at unauthorized
location is $4,000. 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 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.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Del Rosario
Talpa is apparently liable for a $4,000 forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's Rules, Del Rosa Talpa, Inc., is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for violation of Section 73.1350(a) of
the Commission's Rules.
9. 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, Del Rosario Talpa, Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
10. 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 911-7106.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Francisco Office,
5653 Stoneridge Drive, Suite 105, Pleasanton, California 94588-8543
and must include the NAL/Acct. No. referenced in the caption.
12. 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.
13. 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, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
14. 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 Del Rosario Talpa, Inc., at its address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. VanStavern
District Director
San Francisco Office
Western Region
Enforcement Bureau
47 C.F.R. SS 73.1350(a).
47 U.S.C. S 503(b).
On August 22, 2006, the agent attempted to inspect the KNCR main antenna
location at 3560 Hillras Way, Fortuna, California and observed that the
transmitting antenna was not constructed at this geographic location.
On November 7, 2006, the STA application, File No. BSTA - 20061024AGJ, was
granted by the Media Bureau.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
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."
47 C.F.R. S 73.1350(a).
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80, 73.1350(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission
3
Federal Communications Commission