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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Numbers EB-08-LA-0344
Lazer Broadcasting Corporation )
EB-08-LA-0345
Antenna Structure Registrant )
NAL/Acct. No.200932900003
ASR Nos. 1013829 and 1013830 )
FRN:0000013466
Santa Barbara, California )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 14, 2009
By the District Director Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Lazer Broadcasting Corporation ("Lazer Broadcasting"), owner of
antenna structures numbers 1013829 and 1013830, in Santa Barbara,
California, apparently repeatedly violated Section 17.57 of the
Commission's Rules ("Rules") by failing to immediately notify the
Commission of a change in ownership information for antenna structure
numbers 1013829 and 1013830. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended ("Act"), that Lazer
Broadcasting is apparently liable for a forfeiture in the amount of
six thousand dollars ($6,000).
II. BACKGROUND
2. On October 16, and October 17, 2008, an agent of the Enforcement
Bureau's Los Angeles Office inspected antenna structure numbers
1013829 and 1013830, located in Santa Barbara, California, which are
a two-tower directional array for AM radio station KZER. A search of
the Commission's Antenna Structure Registration ("ASR") database
revealed that both antenna structures were registered to Engles
Enterprises Inc., d/b/a KTMS radio ("Engles Enterprises").
3. On November 28, 2008, having been unable to contact Engles
Enterprises, the Los Angeles agent contacted the corporate owner of
KZER, which was Lazer Licenses, LLC, a wholly-owned subsidiary of
Lazer Broadcasting, and was told by an employee that the antenna
structures had been purchased several years earlier as part of the
acquisition of the station from a previous licensee. The agent
advised the Lazer employee that the antenna structures needed to be
re-registered to the new owner as soon as possible and the employee
stated that this would be accomplished. A subsequent review of the
Commission's ASR database revealed that both antenna structures were
registered to Lazer Broadcasting on December 4, 2008.
4. On March 10, 2009, the Los Angeles Office sent a letter of Inquiry
("LOI") to Lazer Broadcasting asking when Lazer Broadcasting acquired
antenna structure numbers 1013829 and 1013830. In its March 24, 2009,
response to the LOI, Lazer Broadcasting reported that it had purchased
the antenna structures as part of the acquisition of the associated
radio station on January 7, 2004. The response stated Lazer's position
that any violation of the Commission's tower registration rules was
inadvertent and innocent and was timely remedied when brought to
Lazer's attention
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 17.57 of the Rules requires that the owner of an antenna
structure to immediately notify the Commission, using FCC Form 854,
upon any change in ownership information. We require antenna
structure owners to maintain current antenna structure registration
information with the Commission and post ASR numbers at the base of
antenna structures to allow for easy contact if problems arise.
Lazer Broadcasting acquired antenna structure numbers 1013829 and
1013830 in January of 2004 but failed to update the ownership
information for the antenna structures until December 4, 2008, after
an inspection by the Commission's Los Angeles Office.
7. From January of 2004, until December 4, 2008, Lazer Broadcasting
failed to notify the Commission that it had acquired antenna
structures numbers 1013829 and 1013830. This violation occurred for
more than one day, therefore, it is repeated. Based on the evidence
before us, we find that Lazer Broadcasting apparently repeatedly
violated Section 17.57 of the Rules by failing to immediately notify
the Commission about a change in ownership for antenna structure
numbers 1013829 and 1013830 in Santa Barbara, California.
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 failure to file forms or required
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. Although Lazer Broadcasting subsequently updated the
ownership information for both antenna structures after the Los
Angeles Office inspection, we note that the Commission has stated in
the past that an antenna structure owner is expected to correct errors
when they are brought to the owner's attention and that such
correction is not grounds for a downward adjustment in the forfeiture.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Lazer is
apparently liable for a $3,000 forfeiture for each of the antenna
structures, for a total forfeiture of $6000.
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, Lazer Broadcasting
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of six thousand dollars ($6,000) for
violations of Section 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, Lazer 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/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. Lazer Broadcasting
Corporation will also send electronic notification on the date said
payment is made to
WR-Response@fcc.gov.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Rd., Suite 660, Cerritos, CA 90703 and must include
the NAL/Acct. No. referenced in the caption. An electronic copy shall
be sent to WR-Response@fcc.gov.
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. 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 Lazer Broadcasting
Corporation.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director,
Los Angeles Office
Western Region
Enforcement Bureau
47 C.F.R. S: 17.57.
47 U.S.C. S: 503(b).
Antenna structure numbers 1013829 and 1013830 are both required to have
painting and lighting in accordance with FCC Paragraphs 1, 3, 12, 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."
See, e.g., American Tower Corporation, 16 FCC Rcd 1282 (2001) ) (Notice of
Apparent Liability); American Tower Corporation, 16 FCC Rcd 14937 (2001)
(Consent Decree between the Commission and American Tower Corporation ).
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).
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76 (2002).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 17.57.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission