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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. EB-06-SE-446
)
Hmong American Community, Inc. NAL/Acct. No. 200732100043
)
Fresno, California FRN No. 0007557788
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 14, 2007 Released: August 16, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Hmong
American Community, Inc. ("Hmong American"), former licensee of Low
Power FM ("LPFM") station KFCA-LP, in Fresno, California, apparently
liable for a forfeiture in the amount of eight thousand dollars
($8,000) for operating a LPFM station without Commission authority and
failing to file a timely renewal application for the station. Hmong
American acted in apparent willful and repeated violation of Section
301 of the Communications Act of 1934, as amended ("Act"), and Section
73.3539 of the Commission's Rules ("Rules").
II. BACKGROUND
2. On December 22, 2006, the Enforcement Bureau ("Bureau") received a
complaint that Hmong American failed to renew its license and
continued to operate station KFCA-LP beyond the license term of its
authorization. Commission records show that on July 15, 2003, Hmong
American was granted a station license under call sign KFCA-LP with an
expiration date of December 1, 2005. In addition, Commission records
show no application on file to renew the station's license.
3. In a letter of inquiry ("LOI") dated January 22, 2007, the Bureau's
Spectrum Enforcement Division ("Division") directed Hmong American to
respond to the allegations in the complaint. The LOI was sent by
certified mail to Hmong American at the Fresno, California address
reflected in Commission records. On February 12, 2007, the LOI was
returned to the Commission as undeliverable, with no forwarding
address. Upon further research of public records, the Division found
another address for Hmong American in Fresno, California, and
re-mailed the LOI to Hmong American on February 20, 2007.
4. In its March 19, 2007, response to the LOI, Hmong American states that
its new executive director was unaware of the need to renew station
KFCA-LP's license until informed by an inspector that the license had
expired. Hmong American further explains that after learning that its
license had expired, and upon inquiry with the FCC about the status of
its LPFM station license, it decided to undertake efforts to transfer
ownership of the LPFM station to a non-profit organization rather than
discontinue operation or return the license for its LPFM station.
Hmong American admits that although no assignment or renewal
applications were filed with the Commission, it continued to operate
the station until February 1, 2007, when the system failed and the
station was completely shut down.
III. dISCUSSION
5. Section 301 of the Act prohibits the use or operation of any apparatus
for the transmission of energy or communications or signals by a
broadcast radio station except under, and in accordance with, a
Commission granted authorization. Additionally, Section 73.3539 of the
Rules states that a broadcast station licensee must file a renewal
application, "not later than the first day of the fourth full calendar
month prior to the expiration date of the license." Absent a timely
filed renewal application, a broadcast radio station license
automatically terminates.
6. As a Commission licensee, Hmong American is required to maintain its
authorization to operate a LPFM station. Hmong American admits to
operating the LPFM station without authorization between December 1,
2005 and February 1, 2007. By continuing to operate its station for
approximately 14 months without an instrument of authorization, Hmong
American apparently violated Section 301 of the Act. Hmong American
also acted in apparent violation of Section 73.3539 of the Rules by
failing to file a timely renewal application for the station. In
addition, we note that, to date, Hmong American still has not filed a
renewal application.
7. Section 503(b) of the Act, and Section 1.80(a) of the Rules, provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's
rules, and "repeatedly" means more than once. Based upon the record
before us, it appears that Hmong American's violations of Section 301
of the Act and Section 73.3539 of the Rules were willful and repeated.
8. In determining the appropriate forfeiture amount, Section 503(b)(2)(E)
of the Act directs us to consider factors, such as "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 may
require." Having considered the statutory factors, as explained below,
we find it appropriate to propose an aggregate forfeiture in the
amount of $8,000.
9. Section 1.80(b) of the Rules sets a base forfeiture amount of three
thousand dollars ($3,000) for failure to file required forms or
information and ten thousand dollars ($10,000) for operation of a
station without Commission authority. As the Commission recently held,
a licensee's failure to timely file a renewal application and its
continued operation without authorization constitute separate
violations of the Act and the Rules and warrant the assessment of
separate forfeitures. Accordingly, we propose separate forfeiture
amounts for Hmong American's separate violations.
10. We propose a forfeiture of $3,000 for Hmong American's failure to file
the renewal application for its LPFM station within the time period
specified in Section 73.3539 of the Rules. Additionally, we propose a
forfeiture of $5,000 for Hmong American's continued operation of a
LPFM station after the expiration of its license on December 1, 2005.
In proposing the $5,000 forfeiture for Hmong American's unauthorized
operations, we recognize that the Commission considers a licensee who
operates a station with an expired license in better stead than a
pirate broadcaster who lacks prior authority, and thus downwardly
adjust the $10,000 base forfeiture amount accordingly. Thus, we
propose an aggregate forfeiture of eight thousand dollars ($8,000)
($3,000 for failure to timely file a renewal application and $5,000
for unauthorized operations).
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311 and 1.80 of the Rules, Hmong American
Community, Inc. IS hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of eight thousand dollars ($8,000) for
willful and repeated violation of Section 301 of the Act and Section
73.3539 of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Hmong American Community, Inc. 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. A request for
full payment under an installment plan should be sent to: Associate
Managing Director-Financial Operations, 445 12th Street, S.W., Room
1-A625, Washington, D.C. 20554.
14. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
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; 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. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to Dr. LoXing Kiatoukaysi, Executive
Director, Hmong American Community, Inc., 2904 N. Blackstone Avenue,
Unit 7, Fresno, California 93703.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 73.3539.
File No. BLL-20021016ABT.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Chuhou Thao,
Executive Director, Hmong American Community, Inc. (January 22, 2007).
Id.
See Letter from Dr. LoXing Kiatoukaysi, Executive Director, Hmong American
Community, Inc. to Kathy Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (March 19, 2007).
See, e.g., Eure Family Limited Partnership, Memorandum Opinion and Order,
17 FCC Rcd 21861, 21863-64 (2002) (licensee is responsible for compliance
with all Commission rules).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(a).
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387-4388 (1991), recon. denied, 7 FCC Rcd 3454 (1992).
47 U.S.C. S: 503(b)(2)(E); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines ("Forfeiture Policy Statement"), Report and Order,
12 FCC Rcd 17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. 1.80(b).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7438 (2004) ("Discussion Radio")
(proposing separate forfeitures against a broadcaster who both operated
its station for 14 months without Commission authority and failed to
timely file its renewal application).
Under Section 503(b)(6) of the Act, 47 U.S.C. S: 503(b)(6), we are
prohibited from assessing a forfeiture for a violation that occurred more
than a year before the issuance of a NAL. Section 503(b)(6), however, does
not bar us from considering Hmong American's prior conduct in determining
the appropriate forfeiture amount for violations that occurred within the
one-year statutory period. See Globcom, Inc. d/b/a Globcom Global
Communications, Notice of Apparent Liability for Forfeiture, 18 FCC Rcd
19893, 19903 (2003), forfeiture ordered, Forfeiture Order, 21 FCC Rcd
4710 (2006); Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd
9669, 9671 (2000) (although the Commission may not find an entity liable
for violations committed more than one year before the issuance of an NAL,
"it may lawfully look at facts arising before that date in determining an
appropriate forfeiture amount). Accordingly, while we take into account
the continuous nature of the violations in determining the appropriate
forfeiture amount, our proposed forfeiture relates only to Hmong
American's apparent violations that have occurred within the past year.
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
for operating a station for 14 months beyond the expiration of its
license); Hare Planting, 21 FCC Rcd 7530 (assessing a forfeiture in the
amount of $5,000 for continued operation of its PLMRS station for
approximately 15 months after the expiration of its license); Imperial
Sugar, 22 FCC Rcd 4987 (proposing a $5,000 forfeiture for continued
operation of its PLMRS station for approximately 20 months after the
expiration of its license).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
47 C.F.R. S: 1.80.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-3613
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Federal Communications Commission DA 07-3613