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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Claro Communications, LTD. ) File Number EB-07-HU-048
Licensee of Station KBRN ) NAL/Acct. No. 200832540001
Boerne, Texas ) FRN 0015929763
Facility ID # 51961 )
)
)
MEMORANDUM OPINION AND ORDER
Adopted: June 18, 2008 Released: June 20, 2008
By the Associate Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order"), we deny the petition
for reconsideration filed by Claro Communications, LTD. ("Claro") of
the Forfeiture Order issued January 17, 2008. The Forfeiture Order
imposed a monetary forfeiture in the amount of $8,800 for Claro's
willful and repeated violation of Section 73.1125(a) of the
Commission's Rules ("Rules") and repeated violation of Section
73.1745(a) of the Rules. The noted violations involved Claro's failure
to maintain a main studio and operation of its station at a power
level exceeding that specified in its license.
II. BACKGROUND
2. On August 6, 2007, in response to a complaint, an agent from the
Commission's Houston Office of the Enforcement Bureau ("Houston
Office") investigated the operation of station KBRN in Boerne, Texas.
The agent conducted field strength measurements on station KBRN's
radio signal at various times throughout the day and evening. These
measurements indicated that the power output of station KBRN's
transmitter did not change during the day, near sunset, or well into
the night. Additionally, the agent was unable to locate a main studio
for station KBRN in or near the town of Boerne, Texas.
3. On August 7, 2007, the agent from the Houston Office took field
strength measurements at various times during the day and night. These
measurements showed that the power level of station KBRN did not
change after sunset local time, and was at the same level as observed
the previous day.
4. On August 8, 2007, the agent from the Houston Office again took field
strength measurements at various times during the day and night. These
measurements showed that the power level of station KBRN did not
change after sunset local time, and was at the same level as observed
the previous two days. The agent, still attempting to locate a main
studio for station KBRN, spoke by telephone to the owner of the
station and a contract engineer employed to maintain the station's
transmitting equipment. Both confirmed the station did not have a
permanent main studio for station KBRN, but instead was operating
temporarily out of a hair salon business in Boerne, Texas.
Additionally, the owner stated the temporary studio did not have any
employees of station KBRN reporting daily to that location and that
the station had been operating under these conditions for about 60
days.
5. On August 9, 2007, the agent from the Houston Office met with the
manager of station KBRN at the hair salon business to inspect the
station's main studio. The station manager stated that no employees of
the station worked at this location, but the employees of the hair
salon knew to call him if anyone came in to discuss matters relating
to the radio station. The station manager then showed the agent
broadcast equipment typically used at a radio station studio installed
in a back room closet of the hair salon. The equipment was not
functioning and was not even connected to an electrical outlet. The
manager explained that the equipment was never actually used to
provide programming to the transmitter because the studio to
transmitter radio link could not be made to function from this
location. The manager further stated that a computer installed in the
transmitter building at the transmitter site was providing programming
for the station. After sunset still on August 9, 2007, the agent from
the Houston Office met with a contract engineer employed by station
KBRN at the station's transmitter site. The engineer confirmed the
station was being operated unattended with a computer in the
transmitter building providing programming. The engineer additionally
determined that the station was still operating in its daytime mode
and power although he did not immediately know why. The engineer set
the station to its proper nighttime power and stated he would make
arrangements to have the transmitter manually switched from daytime
operating mode to nighttime operating mode until the automated control
system could be repaired. After leaving the transmitter site, the
agent from the Houston Office conducted field strength measurements
that confirmed a dramatic reduction in the power level of station
KBRN's signal.
6. On November 21, 2007, the Houston Office issued a Notice of Apparent
Liability for Forfeiture to Claro in the amount of eleven thousand
dollars ($11,000) for the apparent willful and repeated violation of
Section 17.1125(a) of the Rules and the apparent repeated violation of
Section 73.1745(a) of the Rules. Claro submitted a response to the NAL
requesting a reduction or cancellation of the proposed forfeiture. On
January 17, 2008, the Enforcement Bureau ("Bureau") reduced the
forfeiture based on Claro's history of compliance with the rules and
released the Forfeiture Order. The Bureau received Claro's petition
for reconsideration on February 19, 2008, requesting cancellation of
the forfeiture.
III. DISCUSSION
7. The forfeiture amount in this case was assessed in accordance with
Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
Claro's petition, 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 any
other such matters as justice may require.
8. Claro asserts that the Bureau failed to consider "such matters as
justice may require," namely Claro's owner's serious illness. In its
petition, Claro states that, while it was in the midst of a main
studio location change in July 2007, its owner was diagnosed with
cancer on July 23, 2007 and underwent surgery. This illness prevented
Claro's owner from being able to relocate the main studio and oversee
station operations in August 2007. In its petition, Claro also states
that it was forced to move from its previously compliant main studio
location in July 2007. These statements, however, conflict with
contemporaneous statements made by Claro's owner on the telephone on
August 8, 2007. On August 8, 2007, Claro's owner stated on the
telephone that the no station employees had been reporting daily to
the temporary main studio and that the station had been operating like
this for about 60 days. This would place the station's move to a
temporary and non-compliant location at approximately the beginning of
June 2007. Claro's attorney was provided several opportunities in
which to clarify the timeline for Claro's main studio relocation, but
no response was provided. Claro's owner was also contacted but he was
unable to confirm or deny the timeframe for the main studio move.
Therefore, we find no reason not to rely upon the contemporaneous
statements made to our agent. While we are sympathetic to Claro's
owner's illness, Claro could have avoided the violation by applying
for a waiver of the rules before it relocated its main studio to the
temporary locations, or setting up a new compliant main studio prior
to moving from its previously compliant main studio. Claro's owner and
station manager had over a month in which to do so, prior to the
owner's diagnosis with cancer. Accordingly, we do not find Claro's
petition for reconsideration persuasive and deny it.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 405(b) of the
Communications Act of 1934, as amended, and Section 1.106(f) of the
Commission's Rules, the petition for reconsideration filed by Claro
Communications, LTD. IS DENIED.
10. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Claro
Communications, LTD. IS LIABLE FOR A MONETARY FORFEITURE in the amount
of eight thousand eight hundred dollars ($8,800) for violation of
Section 73.1125 and 73.1745 of the Rules.
11. 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. 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[s] 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. FCC Form 159 may be obtained
at http://www.fcc.gov/Forms/Form159/159.pdf. 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. Claro Communications, LTD. will also
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
12. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Claro
Communications, LTD. at its address of record and to its counsel,
Christopher D. Imlay, Booth, Freret, Imlay & Tepper PC, 14356 Cape May
Road, Silver Spring, MD 20904.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
Claro Communications, LTD., Forfeiture Order, 23 FCC Rcd 359 (Enf. Bur.
South Central Region 2008) ("Forfeiture Order").
47 C.F.R. S:S: 73.1125(a), 73.1745(a).
The current license for station KBRN is for daytime operation only;
however, station KBRN has been granted a Construction Permit by the
Commission authorizing it to operate at a daytime power of 1900 watts and
a nighttime power of 15 watts.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832540001
(Enf. Bur., Houston Office, November 21, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303 (1999).
47 U.S.C. S: 503(b)(2)(D).
Claro's owner also asserted for the first time that the station had
recently gone silent following a fire and had been conducting program
tests immediately prior to the agent's inspection. The owner stated that
the main studio was not staffed, because it had not yet resumed full
operations. According to the agent's notes, Claro's owner stated on August
8, 2007 that the station had been on the air for about two months. Claro
did not submit any documentation with the Media Bureau to substantiate its
statement. The only document on file with the Media Bureau states that the
station began normal operations on August 30, 2006. Accordingly, we do not
rely upon Claro's assertion that it was conducting program tests in August
2007.
47 C.F.R. S: 1.106(f).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1435
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Federal Communications Commission DA 08-1435