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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
International Broadcasting ) File Number EB-07-SJ-068
Corporation
) NAL/Acct. No. 200832680001
San Juan, PR
) FRN 0003736220
Antenna Structure Registration #
1026702 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 13, 2007
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 International Broadcasting Corporation ("IBC"), owner of antenna
structure # 1026702, in Canovanas, Puerto Rico, apparently willfully
and repeatedly violated Sections 17.50 and 17.57 of the Commission's
Rules ("Rules") by failing to paint its antenna structure to maintain
good visibility, and failing to notify the Commission of a change in
ownership. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that IBC is apparently
liable for a forfeiture in the amount of thirteen thousand dollars
($13,000).
II. BACKGROUND
2. On September 7 and 11, 2007 agents from the Commission's San Juan
Office of the Enforcement Bureau ("San Juan Office") inspected IBC's
antenna structure and noted that the tower's paint was extremely faded
and washed away in most areas. Antenna structure # 1026702 is more
than 200 feet in height and requires painting and lighting. The agents
consulted the Commission's Antenna Structure Registration ("ASR")
database and noted that "Del Pueblo Radio Corporation" was listed as
the owner of antenna structure # 1026702. After the owner stated that
IBC acquired the tower in 2003, the agents informed him that he must
update the structure's ownership information in the ASR database. On
both days, the agents also warned IBC's owner that the structure
needed to be repainted. IBC's owner acknowledged that the structure
needed painting and did not say when it had last been painted.
3. On October 25, 2007, agents from the San Juan Office again observed
antenna structure # 1026702 and found that its paint was still
extremely faded and washed away in most areas. On November 1, 2007,
Del Pueblo Radio Corporation was still listed as the owner of the
structure in the ASR database.
III. DISCUSSION
4. 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) of the Act 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.
5. Section 17.50 of the Rules requires that antenna structures requiring
painting shall be cleaned or repainted as often as necessary to
maintain good visibility. Antenna structure # 1026702 is more than 200
feet in height and is required to be painted. On September 7 and 11,
and October 25, 2007, an inspection of IBC's antenna structure
revealed that the paint on the tower had washed away on most of the
tower, leaving the metal exposed and reducing the tower's visibility.
The paint's condition was so deteriorated that it had to have occurred
over more than one day. IBC was warned on September 7 and 11, 2007
that its structure needed to be repainted.
6. Section 17.57 of the Rules requires that the owner of an antenna
structure for which an ASR number has been obtained must immediately
notify the Commission using FCC Form 854 upon any change in structure
height or change in ownership information. On September 7 and 11, and
November 1, 2007, Del Pueblo Radio Corporation was listed as the owner
of antenna structure # 1026702 in the ASR database. IBC's owner
admitted that it acquired the structure in 2003. IBC was warned on
September 7 and 11, 2007 that it must update the structure ownership
information.
7. Based on the evidence before us, we find that IBC apparently
willfully and repeatedly violated Sections 17.50 and 17.57 of the
Rules by failing to maintain the paint of its antenna structure in
good condition, and failing to notify the Commission of a change in
structure ownership.
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 failing to comply with prescribed lighting
and marking is $10,000 and the base forfeiture amount for failing to
file required forms or information is $3,000. In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(E) 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 of the Rules, and the statutory factors to the
instant case, we conclude that IBC is apparently liable for a
($13,000) 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, International Broadcasting
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of thirteen thousand dollars ($13,000) for
violations of Sections 17.50 and 17.57 of the Rules.
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, International
Broadcasting Corporation 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 Office,
Room 762, Federal Building, Hato Rey, PR 00918-1731 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 International Broadcasting Corporation
at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent,
San Juan Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 17.50, 17.57.
47 U.S.C. S: 503(b).
See 47 C.F.R. S: 17.21.
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."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 17.50,
17.57.
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
3
Federal Communications Commission