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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Claro Communications, LTD. ) File Number EB-07-HU-048
Licensee of Station KBRN ) NAL/Acct. No. 200832540001
Boerne, Texas ) FRN 0015929763
Facility ID # 51961 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 21, 2007
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Claro Communications, LTD., ("Claro"), licensee of station KBRN,
in Boerne, Texas, apparently willfully and repeatedly violated Section
73.1125(a) of the Commission's Rules ("Rules") by failing to maintain
a main studio and repeatedly violated Section 73.1745(a) of the Rules
by operating the station at a power level exceeding that specified in
its license. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Claro is
apparently liable for a forfeiture in the amount of eleven thousand
dollars ($11,000).
II. BACKGROUND
2. On August 6, 2007, in response to a complaint, an agent from the
Commission's Houston Office of the Enforcement Bureau ("Houston
Office") investigated the operation of station KBRN in Boerne, Texas.
The agent conducted field strength measurements on station KBRN's
radio signal at various times throughout the day and evening. These
measurements indicated that the power output of station KBRN's
transmitter did not change during the day, near sunset, or well into
the night. Additionally, the agent was unable to locate a main studio
for station KBRN in or near the town of Boerne, Texas.
3. On August 7, 2007, the agent from the Houston Office took field
strength measurements at various times during the day and night. These
measurements showed that the power level of station KBRN did not
change after sunset local time, and was at the same level as observed
the previous day.
4. On August 8, 2007, the agent from the Houston Office again took field
strength measurements at various times during the day and night. These
measurements showed that the power level of station KBRN did not
change after sunset local time, and was at the same level as observed
the previous two days. The agent, still attempting to locate a main
studio for station KBRN, spoke by telephone to the owner of the
station and a contract engineer employed to maintain the station's
transmitting equipment. Both confirmed the station did not have a
permanent main studio for station KBRN, but instead was operating
temporarily out of a hair salon business in Boerne, Texas.
Additionally, the owner stated the temporary studio did not have any
employees of station KBRN reporting daily to that location and that
the station had been operating under these conditions for about 60
days.
5. On August 9, 2007, the agent from the Houston Office met with the
manager of station KBRN at the hair salon business to inspect the
station's main studio. The station manager stated that no employees of
the station worked at this location, but the employees of the hair
salon knew to call him if anyone came in to discuss matters relating
to the radio station. The station manager then showed the agent
broadcast equipment typically used at a radio station studio installed
in a back room closet of the hair salon. The equipment was not
functioning and was not even connected to an electrical outlet. The
manager explained that the equipment was never actually used to
provide programming to the transmitter because the studio to
transmitter radio link could not be made to function from this
location. The manager further stated that a computer installed in the
transmitter building at the transmitter site was providing programming
for the station. After sunset still on August 9, 2007, the agent from
the Houston Office met with a contract engineer employed by station
KBRN at the station's transmitter site. The engineer confirmed the
station was being operated unattended with a computer in the
transmitter building providing programming. The engineer additionally
determined that the station was still operating in its daytime mode
and power although he did not immediately know why. The engineer set
the station to its proper nighttime power and stated he would make
arrangements to have the transmitter manually switched from daytime
operating mode to nighttime operating mode until the automated control
system could be repaired. After leaving the transmitter site, the
agent from the Houston Office conducted field strength measurements
that confirmed a dramatic reduction in the power level of station
KBRN's signal.
III. DISCUSSION
6. 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.
7. Section 73.1125(a) of the Rules requires broadcast stations to
maintain a main studio. "A station must equip the main studio with
production and transmission facilities that meet applicable standards,
maintain continuous program transmission capability, and maintain a
meaningful management and staff presence." The Commission has defined
a minimally acceptable "meaningful presence" as full-time managerial
and full-time staff personnel. On August 9, 2007, during normal
business hours, no management or staff employees of station KBRN were
present at its main studio in the hair salon in Boerne, Texas.
Additionally, the equipment installed to provide the station with
production and transmission capability at this location was not
functioning. The station owner admitted that the main studio had been
unattended by any station employees for about 60 days. The station
manager also admitted that the main studio was not staffed and that
its production and transmission equipment had never functioned.
8. Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times, or with modes or power, other than those specified
and made a part of the license, unless otherwise provided in this
part. Station KBRN is authorized to operate with 1900 watts during
the day and 15 watts at night. On August 6, 7, and 8, 2007, field
strength measurements showed station KBRN did not reduce power from
its daytime authorized power to its nighttime authorized power after
sunset local time. On August 9, 2007, the station engineer confirmed
that the station was not reducing its power at night and did not know
why the station's automated control system was malfunctioning.
9. Based on the evidence before us, we find that Claro apparently
willfully and repeatedly violated Section 73.1125(a) of the Rules by
failing to maintain a main studio and repeatedly violated Section
73.1745(a) of the Rules by operating the station at a power level
exceeding that specified in its license.
10. 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 main studio rule is $7,000
and the base forfeiture amount for exceeding the power limits 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)(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 Claro is apparently liable for a
($11,000) forfeiture.
IV. ORDERING CLAUSES
11. 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, Claro Communications, LTD.
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eleven thousand dollars ($11,000) for violations of
Sections 73.1125(a) and 73.1745(a) of the Rules.
12. 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, Claro Communications,
LTD. SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Houston Office,
9597 Jones Road, #362, Houston, Texas, 77065 and must include the
NAL/Acct. No. referenced in the caption.
15. 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.
16. 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.
17. 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 Claro Communications, LTD. at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Stephen P. Lee
Resident Agent,
Houston Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 73.1125(a).
47 C.F.R. S: 73.1745(a).
47 U.S.C. S: 503(b).
The current license for station KBRN is for daytime operation only;
however, station KBRN has been granted a Construction Permit by the
Commission authorizing it to operate at a daytime power of 1900 watts and
a nighttime power of 15 watts.
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: 73.1125(a).
Main Studio and Program Origination Rules, Memorandum Opinion and Order,
3 FCC Rcd 5024, 5026 (1988).
Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order, 6
FCC Rcd 3615, 3616 (1991), clarified 7 FCC Rcd 6800 (1992).
47 C.F.R. S: 73.1745(a).
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, 73.1125(a),
73.1745(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission