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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Pacifica Broadcasting Company )
) EB-03-SE-289
) NAL/Acct.
Licensee of Noncommercial ) 200432100005
Educational ) Facility # 51241
Television Station KALO (TV), ) FRN # 0004075040
Honolulu, )
Hawaii
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 29, 2003 Released: October
30, 2003
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Pacifica Broadcasting
Company (``Pacifica''), licensee of noncommercial
educational television Station KALO (TV) (formerly KAIE
(TV)), Honolulu, Hawaii, apparently violated section 301 of
the Communications Act of 1934, as amended (the ``Act'')1
and section 73.1690 of the Commission's rules2 by willfully
and repeatedly broadcasting from an unauthorized transmitter
site. Based upon our review of the facts and circumstances
of this case, we conclude that Pacifica is apparently liable
for a monetary forfeiture in the amount of four thousand
dollars ($4,000.00).
II. Background
2. On March 8, 2001, Pacifica filed an application
with the Commission for a modified construction permit to
relocate its station's transmitter from Wiliwilinui Ridge
(the ``Wiliwilinui Site''), from which it was authorized to
operate, to Palikea Ridge (the ``Palikea Site'').3 In
October 2001, the Commission's Mass Media Bureau received an
anonymous complaint that KALO (TV), Pacifica's station, was
operating from the Palikea Site proposed in its then-pending
modification application. On October 18, 2001, agents from
the FCC's Honolulu Field Office took signal measurements of
both sites. Those measurements confirmed that KALO (TV) was
no longer operating from the authorized Wiliwilinui Site,
but instead, was transmitting color bars from the proposed,
but as yet unauthorized, Palikea Site. On October 19, 2001,
one of the agents confirmed that the station's signal was
originating from the Palikea Site. He contacted the Palikea
Site manager by telephone, who confirmed that KALO (TV) was
operating from a 10 foot container with a panel antenna
mounted on an existing tower at the site. Shortly
thereafter, an officer of Pacifica contacted the Mass Media
Bureau's Video Services Division staff to report the
unauthorized construction and to request orally special
temporary authority (``STA'') to permit the station to
continue to operate at the Palikea Site. The FCC staff
member informed the Pacifica caller that a written request
for such an STA would be necessary.
3. A week after the field agent's initial visit
to the station facilities, by letter to the Commission dated
October 25, 2001, counsel for Pacifica admitted that
Pacifica had removed the broadcasting equipment from the
Wiliwilinui Site and had installed it at the Palikea Site,
from which it had been testing the equipment and
broadcasting color bars since the summer of 2001.4
According to counsel's letter, during the summer of 2001,
Pacifica's personnel had reviewed the station's outstanding
authorizations, had found a construction permit specifying a
transmitter site at the Palikea Site, and had erroneously
assumed that the permit evidenced the FCC's grant of the
still-pending modification application. Pacifica proceeded
to install equipment at the Palikea Site, with the claimed
belief that the Commission had authorized the installation.
The station then initiated equipment tests, broadcasting
color bars from the site.
4. According to counsel's letter, sometime
thereafter, another Honolulu broadcaster informed ``Pacifica
that Pacifica's installation of equipment at Palikea had not
been authorized'' by the Commission.5 Counsel represents
that Pacifica then ``doublechecked the station's
authorization and determined, to its surprise, that the
authorization which had previously been reviewed was a prior
permit and that the above-referenced application had not
theretofore been granted.''6 Counsel further represents
that, upon learning that the FCC would not grant an STA to
continue operations at the unauthorized site based upon an
oral request, Pacifica immediately ceased broadcasting color
bars and ``began to make arrangements for the relocation of
the station's equipment back to Wiliwilinui.'' 7 On October
30, 2001, counsel filed a written request for an STA to
continue KALO (TV)'s operations at the Palikea Site, pending
action on the modification application, claiming that
reinstalling the equipment at the authorized Wiliwilinui
Site ``would impose a significant expense on Pacifica and
would entail considerable logistical inconvenience.''8 On
December 20, 2001, the Chief, Television Branch of the Video
Services Division granted Pacifica's modification
application to move the KALO (TV) transmitter to the Palikea
Site, mooting the need for action on the STA request.
III. DISCUSSION
5. Under section 503(b)(1) of the Act, any person who
is determined by the Commission to have willfully or
repeatedly failed to comply with any provision of the Act or
any rule, regulation, or order issued by the Commission
shall be liable to the United States for a forfeiture
penalty.9 In order to impose such a forfeiture penalty, the
Commission must issue a notice of apparent liability, the
notice must be received, and the person against whom the
notice has been issued must have an opportunity to show, in
writing, why no such forfeiture penalty should be imposed.
The Commission will then issue forfeiture if it finds by a
preponderance of the evidence that the person has violated
the Act or a Commission rule.10 As we set forth in greater
detail below, we conclude under this standard that Pacifica
is apparently liable for a forfeiture for its apparent
willful and repeated violations of section 301 of the Act
and section 73.1690(b)(2) of the Commission's rules.
6. Section 301 of the Act prohibits radio operation
``except under and in accordance with this Act and with a
license ... granted under the provisions of this Act.''11
Section 73.1690(b)(2) of the Commission's rules, 12 which
implements section 301 of the Act, provides that
noncommercial educational broadcast stations must be
operated in accordance with a proper authorization granted
by the Commission and that changes to facilities such as the
modification of the KALO (TV) site at issue here may only be
made after the grant of a construction permit application
submitted on FCC Form 340. Pacifica's admissions, coupled
with the uncontroverted evidence that it installed and
tested over several days KALO (TV)'s equipment at the
Palikea Site in the absence of Commission authorization,
lead to the conclusion that Pacifica apparently willfully
and repeatedly violated section 301 of the Act and section
73.1690 of the rules.
7. Forfeiture Amount. The forfeiture guidelines
establish a base forfeiture amount of four thousand dollars
($4,000.00) for constructing and operating facilities at an
unauthorized location.13 In assessing a forfeiture, the
Commission also takes into account the statutory factors set
forth in section 503(b)(2)(D) of the Act,14 including 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 such other matters as justice requires. Under the
circumstances, we believe a forfeiture of four thousand
dollars ($4,000.00) is apparently warranted.
IV. ORDERING CLAUSES
8. Accordingly, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of
the Commission's rules, 15 Pacifica Broadcasting Company is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in
the amount of four thousand dollars ($4,000.00) for its
willful and repeated violation of section 301 of the Act and
section 73.1690 of the Commission's rules.16
9. Therefore, IT IS HEREBY ORDERED, pursuant to
section 1.80 of the Commission's Rules that within thirty
(30) days of the release date of this Notice, Pacifica
Broadcasting Company SHALL PAY the full amount of the
proposed forfeiture or shall file a written statement
seeking reduction or cancellation of the proposed
forfeiture.17
10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
Post Office Box 73482, Chicago, Illinois 60673-7482. The
payment must include the FCC Registration Number (FRN)
referenced above and must also note the NAL/Acct Number
referenced above.
11. The response, if any, MUST BE MAILED to Joseph P.
Casey, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street,
SW, Room 7-A843, Washington, D.C. 20554 and MUST INCLUDE the
NAL/Acct. Number referenced above.
12. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent 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
respondent'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. Requests for payment of the full amount of the
forfeiture proposed in this NAL under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, SW, Washington, DC 20554.18
14. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If Pacifica
qualifies as a small entity and if it wishes to be treated
as a small entity for tracking purposes, please so certify
to us within thirty (30) days of this NAL, either in its
response to the NAL or in a separate filing to be sent to
the Investigations and Hearings Division. Its certification
should indicate whether Pacifica, including its parent
entity and its subsidiaries, meets one of the definitions
set forth in the list provided by the FCC's Office of
Communications Business Opportunities (``OCBO'') set forth
in the Attachment to this NAL. This information will be
used for tracking purposes only. Pacifica's response or
failure to respond to this question will have no effect on
its rights and responsibilities pursuant to section 503(b)
of the Communications Act. If Pacifica has questions
regarding any of the information contained in the
Attachment, it should contact OCBO at (202) 418-0990.
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, to Pacifica
Broadcasting Company 875 Waimanu Street, Suite 110,
Honolulu, HI. 96813, and a copy to its counsel, Harry F.
Cole, Esq., Fletcher, Heald & Hildreth, 11th Floor, 1300
North 17th Street, Arlington, Virginia 22209-3801.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
October 2002
ATTACHMENT
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 U.S.C. § 301.
2 47 C.F.R. § 73.1690.
3 File No. BPET-20010308AAU.
4 See Letter for request for expedited action on
application, dated October 25, 2001, from Harry F. Cole,
counsel for Pacifica Broadcasting Company (``Cole Letter'').
5 Id at 2.
6 Id.
7 Id.
8 Id. at 1.
9 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see
also 47 U.S.C. § 503(b)(1)(D) (forfeitures for violation of
14 U.S.C. § 1464). Section 312(f)(1) of the Act defines
willful as ``the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to
violate'' the law. 47 U.S.C. § 312(f)(1). The legislative
history to section 312(f)(1) of the Act clarifies that this
definition of willful applies to both sections 312 and
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess.
51 (1982), and the Commission has so interpreted the term in
the section 503(b) context. See, e.g., Application for
Review of Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern
California Broadcasting Co.''). The Commission may also
assess a forfeiture for violations that are merely repeated,
and not willful. See, e.g., Callais Cablevision, Inc.,
Grand Isle, Louisiana, Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage).
``Repeated'' merely means that the act was committed or
omitted more than once, or lasts more than one day.
Southern California Broadcasting Co., 6 FCC Rcd at 4388, ¶
5; Callais Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
10 See, e.g., SBC Communications, Inc., Apparent Liability
for Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4
(2002) (forfeiture paid).
11 47 U.S.C. § 301.
12 47 C.F.R. § 73.1690(b)(2). This rule requires prior
approval of any change in station geographic coordinates of
more than 3 seconds latitude and/or 3 seconds longitude.
The move of the KALO (TV) transmitter site at issue here
substantially exceeded those parameters.
13 In the Matter of 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).
14 47 U.S.C. § 503(b)(2)(D).
15 47 U.S.C. § 503(b), 47 C.F.R. § 1.80.
16 47 U.S.C. § 301, 47 C.F.R. § 73.1740.
17 47 C.F.R. § 1.80.
18 47 C.F.R. § 1.1914.