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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
International Broadcasting File Number EB-07-SJ-068
Corporation )
NAL/Acct. No. 200832680001
San Juan, PR )
FRN 0003736220
Antenna Structure Registration # )
1026702
)
)
FORFEITURE ORDER
Adopted: January 7, 2008 Released: January 9, 2008
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of thirteen thousand dollars ($13,000) to International
Broadcasting Corporation ("IBC"), owner of antenna structure #
1026702, in Canovanas, Puerto Rico, for willful and repeated violation
of Sections 17.50 and 17.57 of the Commission's Rules ("Rules"). The
noted violations involve IBC's failure to paint its antenna structure
to maintain good visibility, and failure to notify the Commission of a
change in antenna structure ownership.
II. BACKGROUND
2. On September 7 and 11, 2007 agents from the Commission's San Juan
Office of the Enforcement Bureau ("San Juan Office") inspected IBC's
antenna structure and noted that the tower's paint was extremely faded
and washed away in most areas. Antenna structure # 1026702 is more
than 200 feet in height and requires painting and lighting. The agents
consulted the Commission's Antenna Structure Registration ("ASR")
database and noted that "Del Pueblo Radio Corporation" was listed as
the owner of antenna structure # 1026702. After the owner stated that
IBC acquired the tower in 2003, the agents informed him that he must
update the structure's ownership information in the ASR database. On
both days, the agents also warned IBC's owner that the structure
needed to be repainted. IBC's owner acknowledged that the structure
needed painting and did not say when it had last been painted.
3. On October 25, 2007, agents from the San Juan Office again observed
antenna structure # 1026702 and found that its paint was still
extremely faded and washed away in most areas. On November 1, 2007,
Del Pueblo Radio Corporation was still listed as the owner of the
structure in the ASR database.
4. On November 13, 2007, the San Juan Office issued a Notice of Apparent
Liability for Forfeiture to IBC in the amount of thirteen thousand
dollars ($13,000) for the apparent willful and repeated violation of
Sections 17.50 and 17.57 of the Rules. IBC submitted a response to the
NAL requesting a reduction or cancellation of the proposed forfeiture.
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("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, 12 FCC Rcd 17087 (1997), recon.
denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement"). In
examining IBC'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. Section 17.50 of the Rules requires that antenna structures requiring
painting shall be cleaned or repainted as often as necessary to
maintain good visibility. Antenna structure # 1026702 is more than 200
feet in height and is required to be painted. On September 7 and 11,
and October 25, 2007, an inspection of IBC's antenna structure
revealed that the paint on the tower had washed away on most of the
tower, leaving the metal exposed and reducing the tower's visibility.
The paint's condition was so deteriorated that it had to have occurred
over more than one day. IBC was warned on September 7 and 11, 2007
that its structure needed to be repainted. Thus, based on the
evidence, we find that IBC willfully and repeatedly violated Section
17.50 of the Rules by failing to paint its antenna structure to
maintain good visibility.
7. In its response to the NAL, IBC requests cancellation or reduction of
the proposed forfeiture because weather prevented it from painting its
antenna structure. It asserts that a contractor is now prepared to
paint the structure as soon as weather permits. IBC's response did not
provide a date for when it first attempted to contact a painter about
the structure, but the attached documentation states that it hired a
painter on September 15, 2007, a date after the first two inspections.
Moreover, contemporaneous with the first two inspections, IBC failed
to mention that it had already taken steps to have the structure
painted. Absent reliable evidence that IBC attempted to have its
structure painted prior to the agents' inspections, we find no grounds
to cancel or reduce the forfeiture, as corrective action taken to come
into compliance with the Rules is expected, and does not nullify or
mitigate any prior forfeitures or violations.
8. Section 17.57 of the Rules requires that the owner of an antenna
structure for which an ASR number has been obtained must immediately
notify the Commission using FCC Form 854 upon any change in structure
height or change in ownership information. On September 7 and 11, and
November 1, 2007, Del Pueblo Radio Corporation was listed as the owner
of antenna structure # 1026702 in the ASR database. IBC's owner
admitted that it acquired the structure in 2003. IBC was warned on
September 7 and 11, 2007 that it must update the structure ownership
information. Thus, based on the evidence, we find that IBC willfully
and repeatedly violated Section 17.57 of the Rules by failing to
notify the Commission of a change in antenna structure ownership.
9. In its response to the NAL, IBC claims that it was unable to register
its antenna structure because the previous structure owner did not
have a valid FCC Registration Number ("FRN"). IBC states that it could
not obtain an FRN on behalf of the previous owner, as that would be
akin to "theft." Without a valid FRN for the previous owner, IBC
asserts it was unable to update the ownership information. After
discussing the situation with Commission staff, it was determined that
an FRN for the now defunct previous owner could be created using an
"Exempt Activities" category, thus allowing IBC to update the
ownership information. Because of the difficulties involved with
updating the ownership information, IBC requests cancellation or
reduction of the proposed forfeiture. However, IBC's response did not
provide a date for its first attempt to update the structure ownership
information, and the attached documentation states that it first
contacted someone about updating the tower ownership information on
September 19, 2007, a date after the first two inspections and several
years after it acquired the structure. Moreover, contemporaneous with
the first two inspections, IBC failed to mention that it had
previously attempted to update the structure ownership information.
Absent reliable evidence that IBC attempted to update its ownership
information prior to the agents' inspections, we find no grounds to
cancel or reduce the forfeiture, as corrective action taken to come
into compliance with the Rules is expected, and does not nullify or
mitigate any prior forfeitures or violations.
10. We have examined IBC's response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that IBC willfully
and repeatedly violated Sections 17.50 and 17.57 of the Rules. We find
no basis for cancellation or reduction of the $13,000 forfeiture
proposed for these violations.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, International Broadcasting
Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
thirteen thousand dollars ($13,000) for violation of Sections 17.50
and 17.57 of the Rules.
12. 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/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. Requests for full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to International
Broadcasting Corporation at its address of record and to its counsel,
Richard F. Swift, Irwin, Campbell & Tannenwald, 1730 Rhode Island
Avenue NW, Suite 200, Washington DC, 20036-3101.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 17.50, 17.57.
See 47 C.F.R. S: 17.21.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832680001
(Enf. Bur., San Juan Office, November 13, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(D).
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,' ... 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).
The 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." 47 U.S.C. S: 312(f)(2).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 17.50,
17.57.
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 08-26
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Federal Communications Commission DA 08-26