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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
File Number: EB-08-SD-0088
Playa Del Sol Broadcasters )
NAL/Acct. No.: 200832940003
Licensee of K238AK )
FRN: 0004256426
Palm Desert, California )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 31, 2008
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Playa Del Sol Broadcasters ("Playa"), licensee of FM Broadcast
Translator station K238AK, in Palm Desert, California, apparently
willfully and repeatedly violated Section 74.1236(c) of the
Commission's Rules ("Rules") by failing to ensure that emissions
appearing outside the assigned channel greater than 600 kHz from the
center frequency had a minimum attenuation below the unmodulated
carrier of 60 dB. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Playa is
apparently liable for a forfeiture in the amount of four thousand
dollars ($4,000).
II. BACKGROUND
2. On March 12, 2008, the Enforcement Bureau's San Diego office received
a complaint of interference from the Riverside County Sheriff's
Department ("Sheriff's Department") regarding an aviation frequency,
122.875 MHz, in the Indian Wells, California area. The Sheriff's
Department identified the interference as having the same audio as
station KRCK, 97.7 MHz, Mecca, California, which is licensed to Playa
del Sol Broadcasters. Playa was then contacted by the San Diego Office
by telephone and advised of the complaint from the Riverside County
Sherriff's Department which had been received and that all transmitter
equipment operated by Playa should be examined to determine if that
was the cause.
3. On March 13, 2008, an agent from the San Diego Office traveled to the
Indian Wells, California, area to examine the interference complaint.
The agent was able to detect the audio of KRCK on three separate
frequencies in the VHF aviation band: 109.5 MHz, 122.2 MHz, and 136.1
MHz. The agent determined that the three signals were emanating from
the studio of KRCK at 73-733 Fred Waring Drive, Palm Desert,
California, which is collocated with FM Broadcast Translator station
K238AK. The agent noted that FM Broadcast Translator station K238AK
was rebroadcasting the audio of FM Broadcast station KRCK. Field
strength measurements were made by the agent on the three signals
found on 109.5 MHz, 122.2 MHz, and 136.1 MHz, as well as the assigned
channel of K238AK of 95.5 MHz. The agent determined that the 109.5 MHz
signal was attenuated 18.0 db from the carrier of K238AK, the 122.2
MHz signal was attenuated 30.8 db from the carrier of K238AK and the
136.1 MHz signal was attenuated 20.9 db from the carrier of K238AK
4. On March 14, 2008, the agent returned to the studio location of KRCK
and the transmitter site of K238AK and conducted another set of
measurements on the three previously observed signals transmitting
KRCK audio on VHF aviation frequencies. The results of those
measurements are as follows: the 109.5 MHz signal was attenuated 19.8
db from the carrier of K238AK, the 122.2 MHz signal was attenuated
23.4 db from the carrier of K238AK and the 136.1 MHz signal was
attenuated 18.0 db from the carrier of K238AK. The agent then
inspected FM Broadcast Translator station K238AK at the studio
location of KRCK. During the inspection, the agent requested that the
translator station be taken off the air and by using portable
measurement equipment, determined that all three signals previously
measured in the aviation band went off the air and returned whenever
the K238AK transmitter was switched off. The agent determined that the
measured signals on 109.5 MHz, 122.2 MHz, and 136.1 MHz, were spurious
emissions emanating from station K238AK.
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 74.1236(c) of the Rules requires that "(T)he power of the
emissions appearing outside the assigned channel shall be attenuated
below the total power of the emission as follows: ... (Distance of
emission from center frequency) Over 600 kHz .......... (Minimum
attenuation below unmodulated carrier) 60 db." The frequencies of the
spurious emissions, 109.5 MHz, 122.2 MHz, and 136.1 MHz, are each more
than 600 kHz from the K238AK assigned channel of 95.5 MHz.
Consequently, each of the spurious emissions was required to be
attenuated at least 60 db below the K238AK fundamental frequency of
95.5 MHz. On both March 13, 2008, and March 14, 2008, none of the
three spurious emissions on 109.5 MHz, 122.2 MHz, and 136.1 MHz, were
attenuated 60 db or more from the K238AK fundamental frequency. Playa
was notified by the San Diego Office that transmissions containing the
audio of station KRCK were transmitting in the aviation band. Further
investigation by the San Diego Office revealed that a translator
station, K238AK, licensed to Playa was the source of the spurious
emissions on 109.5 MHz, 122.2 MHz, and 136.1 MHz . Playa was advised
by the San Diego Office of the transmissions of the KRCK signal on
aviation frequencies on March 12, 2008, yet Playa failed to take
action to respond to and eliminate the continuing unauthorized
transmissions for more than two days. Therefore, Playa's violation was
willful and repeated. Based on the evidence before us, we find that
Playa apparently willfully and repeatedly violated Section 74.1236(c)
of the Rules by failing to adequately attenuate by at least 60 db the
spurious emissions from its translator station, K238AK, on 109.5 MHz,
122.2 MHz, and 136.1 MHz.
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 unauthorized emissions 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, and the statutory factors to the instant
case, we conclude that Playa 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,
0.314 and 1.80 of the Commission's Rules, Playa del Sol Broadcasters
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violations of Section
74.1236(c) of the 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, Playa del Sol
Broadcasters 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. Playa Del Sol Broadcasters
shall also send electronic notification on the date said payment is
made to WR-Response@fcc.gov.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego Office, 4542
Ruffner St, Suite 370, San Diego, California 92111and must include the
NAL/Acct. No. referenced in the caption. An electronic copy shall be
sent to WR-Response@fcc.gov.
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. 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 Playa del Sol Broadcasters.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director,
San Diego District Office
Western Region
Enforcement Bureau
47 C.F.R. S: 74.1236(c).
47 U.S.C. S: 503(b).
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, 74.1236(c).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission