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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Bestov Broadcasting, Inc. of Puerto Rico ) File No.
EB-02-SJ-030
) NAL/Acct. No.
200232680005
San Juan, Puerto Rico ) FRN: 0003-7810-
28
FORFEITURE ORDER
Adopted: November 14, 2002 Released:
November 18, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of $10,000 to Bestov
Broadcasting, Inc. of Puerto Rico (``Bestov Broadcasting''),
licensee of WTIL (AM), Mayaguez, Puerto Rico, for willfully
violating Section 17.51 of the Commission's Rules
(``Rules'').1 The noted violation involves Bestov
Broadcasting's failure to light WTIL (AM)'s antenna
structure with the prescribed obstruction lighting.
2. On May 29, 2002, a Resident Agent from the
Commission's San Juan, Puerto Rico Resident Office (``San
Juan Office'') issued a $10,000 Notice of Apparent Liability
for Forfeiture (``NAL'') to Mayaguez Radio Corporation for
the noted violation.2 On June 28, 2002, Bestov Broadcasting
filed a response to the NAL.3
II. BACKGROUND
3. On April 25, 2002, the Resident Agent inspected an
antenna structure in Mayagüez, Puerto Rico (Antenna
Structure Registration number 1013203) after sunset. The
Resident Agent noted that the antenna structure was
completely unlit. The following day, April 26, the Resident
Agent inspected WTIL(AM), the radio station associated with
the antenna structure. The station manager told the
Resident Agent that the lighting alarm system was
inoperative and that he did not know whether the lights were
on the previous night. The Resident Agent found that the
station's log contained no light outage entries and that the
Federal Aviation Administration's local Flight Service
Station had not received a notice of a light outage on the
antenna structure. As a result of its investigation, the
San Juan Office issued the above-referenced NAL on June 12,
2002.
4. In its response to the NAL, Bestov Broadcasting
alleges that the antenna structure light outage resulted
from ``unwillful negligence'' in that its staff disregarded
instructions for monitoring the antenna structure's
lighting. Its employees's competence, Bestov Broadcasting
continues, was a function of its poor financial status.
Bestov Broadcasting then requests that we cancel the $10,000
proposed forfeiture because of its purported inability to
pay that amount and provides as supporting documentation its
tax returns for the most recent three-year period along with
audited financial statements prepared in accordance with
generally accepted accounting practices.
III. DISCUSSION
5. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),4 Section 1.80 of the Rules,5
and The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon.
denied, 15 FCC Rcd 303 (1999) (``Policy Statement''). In
examining Bestov Broadcasting's response, Section 503(b) of
the Act requires that the Commission take into account the
nature, circumstances, extent and gravity of the violation
and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay,
and other such matters as justice may require.6
6. After reviewing the record, we find that the
Bestov Broadcasting's failure to light its antenna structure
was a willful violation of Section 17.51 of the Rules.7
According to Bestov Broadcasting, its employees disregarded
its instructions for monitoring the antenna structure's
lighting. The Commission has long held licensees
responsible for their employees's actions.8 Thus, we reject
Bestov Broadcasting's attempt to distance itself from its
employees's performance of their duties (or lack thereof).
7. Turning to Bestov Broadcasting's inability to pay
claim, we find that Bestov Broadcasting's documentation does
not support its claim that it is unable to pay the proposed
$10,000 forfeiture.9 Therefore, we find that Bestov
Broadcasting is not entitled to a reduction based on
inability to pay.
8. We have examined Bestov Broadcasting's response to
the NAL pursuant to the statutory factors above, and in
conjunction with the Policy Statement as well. As a result
of our review, we conclude that Bestov Broadcasting
willfully violated Section 17.51of the Rules, and we find no
basis to rescind or reduce the $10,000 forfeiture proposed
for this violation.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111, 0.311, and
1.80(f)(4) of the Rules,10 Bestov Broadcasting, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $10,000
for willfully violating Section 17.51 of the Rules.
10. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within 30
days of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be referred
to the Department of Justice for collection pursuant to
Section 504(a) of the Act.11 Payment may be made by mailing
a check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment must include the FCC Registration Number
(``FRN'') referenced above, and should also note the
NAL/Acct. No. referenced above. Requests for full payment
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.12
11. IT IS FURTHER ORDERED that a copy of this Order
shall by sent by first class and certified mail, return
receipt requested, to Luis A. Mejía, President, Bestov
Broadcasting, Inc., P.O. Box 9023916, San Juan, Puerto Rico
00902-3916.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.51.
2 Mayaguez Radio Corp., NAL/Acct. No. 200232680005 (Enf.
Bur., San Juan Resident Agent Office, rel. May 29, 2002).
3 The underlying NAL was issued to Mayaguez Radio
Corporation, licensee of WTIL(AM). Bestov Broadcasting,
however, filed a response in which it asserts that it is the
licensee of WTIL(AM). Our search of the Commission's
records indicates that on October 2, 1998, the Commission
granted consent to assignment of the license for WTIL(AM)
from Mayaguez Radio Corporation to Bestov Broadcasting. As
of November 7, 2002, however, the Commission's records
listed Mayaguez Radio Corporation as the licensee of
WTIL(AM). On November 8, 2002, Bestov Broadcasting filed
notice with the Commission that consummation of the
assignment took place on November 11, 1998. Accordingly, we
accept Bestov Broadcasting's response to the NAL and re-
caption this proceeding.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 Failures to observe antenna structure lighting, log light
outages, and notify the FAA are separate violations under
Part 17. See §§ 17.47, 17.48, 17.49.
8 Eleven Ten Broadcasting, Corp., 32 FCC 706, 707-08 (1962)
(``Inherent in such contention, however, is the view that a
licensee who delegates to persons it deems responsible,
authority to operate and manage a station cannot be held
responsible for their activities if it is unaware of them.
This is, of course, a completely untenable view. '').
9 See PJB Communications, 7 FCC Rcd 2088 (1992).
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.