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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number: EB-08-SD-0088
Playa Del Sol Broadcasters )
NAL/Acct. No.: 200832940003
Licensee of K238AK )
FRN: 0004256426
Palm Desert, California )
)
FORFEITURE ORDER
Adopted: July 15, 2009 Released: July 17, 2009
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of four thousand dollars ($4,000) to Playa Del Sol
Broadcasters ("Playa"), licensee of FM Broadcast Translator station
K238AK, in Palm Desert, California, for willful and repeated
violations of Section 74.1236(c) of the Commission's Rules ("Rules").
On July 31, 2008, the Enforcement Bureau's San Diego Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$4,000 to Playa for failing to ensure that emissions appearing outside
the assigned channel greater than 600 kHz from the center frequency
had a minimum attenuation below the unmodulated carrier of 60 dB.
Playa filed a response ("Response") on September 2, 2008. In this
Order, we consider Playa's arguments that a forfeiture is not
warranted in this case because it responded to the San Diego Office
and addressed the issue "promptly and fully" and that the violation
was not willful or repeated.
II. BACKGROUND
2. On March 12, 2008, the Enforcement Bureau's San Diego office received
a complaint of interference from the Riverside County Sheriff's
Department ("Sheriff's Department") regarding an aviation frequency,
122.875 MHz, in the Indian Wells, California area. The Sheriff's
Department identified the interference as having the same audio as
station KRCK, 97.7 MHz, Mecca, California, which is licensed to Playa
del Sol Broadcasters. Playa was then contacted by the San Diego Office
by telephone and advised of the complaint from the Riverside County
Sherriff's Department which had been received and that all transmitter
equipment operated by Playa should be examined to determine if that
was the cause.
3. On March 13, 2008, an agent from the San Diego Office traveled to the
Indian Wells, California, area to examine the interference complaint.
The agent was able to detect the audio of KRCK on three separate
frequencies in the VHF aviation band: 109.5 MHz, 122.2 MHz, and 136.1
MHz. The agent determined that the three signals were emanating from
the studio of KRCK at 73-733 Fred Waring Drive, Palm Desert,
California, which is collocated with FM Broadcast Translator station
K238AK. The agent noted that FM Broadcast Translator station K238AK
was rebroadcasting the audio of FM Broadcast station KRCK. Field
strength measurements were made by the agent on the three signals
found on 109.5 MHz, 122.2 MHz, and 136.1 MHz, as well as the assigned
channel of K238AK of 95.5 MHz. The agent determined that the 109.5 MHz
signal was attenuated 18.0 db from the carrier of K238AK, the 122.2
MHz signal was attenuated 30.8 db from the carrier of K238AK and the
136.1 MHz signal was attenuated 20.9 db from the carrier of K238AK
4. On March 14, 2008, the agent returned to the studio location of KRCK
and the transmitter site of K238AK and conducted another set of
measurements on the three previously observed signals transmitting
KRCK audio on VHF aviation frequencies. The results of those
measurements are as follows: the 109.5 MHz signal was attenuated 19.8
db from the carrier of K238AK, the 122.2 MHz signal was attenuated
23.4 db from the carrier of K238AK and the 136.1 MHz signal was
attenuated 18.0 db from the carrier of K238AK. The agent then
inspected FM Broadcast Translator station K238AK at the studio
location of KRCK. During the inspection, the agent requested that the
translator station be taken off the air and by using portable
measurement equipment, determined that all three signals previously
measured in the aviation band went off the air and returned whenever
the K238AK transmitter was switched off. The agent determined that the
measured signals on 109.5 MHz, 122.2 MHz, and 136.1 MHz, were spurious
emissions emanating from station K238AK.
5. On July 31, 2008, the San Diego Office issued a NAL in the amount of
$4,000 to Playa, finding that Playa apparently willfully and
repeatedly violated Section 74.1236(c) of the Rules by failing to
adequately attenuate by at least 60 db the spurious emissions from its
translator station, K238AK, on 109.5 MHz, 122.2 MHz, and 136.1 MHz. In
its Response, Playa argues that a forfeiture is not warranted in this
case because it responded to the San Diego Office and addressed the
issue "promptly and fully," and that the violation was not willful or
repeated.
III. DISCUSSION
6. The proposed 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 ("Forfeiture
Policy Statement"). In examining Playa'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.
7. Section 74.1236(c) of the Rules requires that "(T)he power of the
emissions appearing outside the assigned channel shall be attenuated
below the total power of the emission as follows: ... (Distance of
emission from center frequency) Over 600 kHz .......... (Minimum
attenuation below unmodulated carrier) 60 db." The frequencies of the
spurious emissions, 109.5 MHz, 122.2 MHz, and 136.1 MHz, are each more
than 600 kHz from the K238AK assigned channel of 95.5 MHz.
Consequently, each of the spurious emissions was required to be
attenuated at least 60 db below the K238AK fundamental frequency of
95.5 MHz. On both March 13, 2008, and March 14, 2008, none of the
three spurious emissions on 109.5 MHz, 122.2 MHz, and 136.1 MHz, were
attenuated 60 db or more from the K238AK fundamental frequency. Playa
was notified by the San Diego Office that transmissions containing the
audio of station KRCK were transmitting in the aviation band. Further
investigation by the San Diego Office revealed that a translator
station, K238AK, licensed to Playa was the source of the spurious
emissions on 109.5 MHz, 122.2 MHz, and 136.1 MHz . Playa was advised
by the San Diego Office of the transmissions of the KRCK signal on
aviation frequencies on March 12, 2008, yet Playa failed to take
action to respond to and eliminate the continuing unauthorized
transmissions for more than two days.
8. In its Response, Playa does not deny that the emissions as described
occurred or were generated from FM translator K238AK. Playa argues
that it was first made aware of the "potential noncompliant emission"
on March 13, 2008, but that the San Diego agent "did not indicate that
the situation was urgent or that any Playa equipment should be
immediately shut down due to any actual potential emergency." Playa
also states that it outlined a plan to test its instruments to
determine if any noncompliant emissions were present and that it would
obtain the proper equipment for testing in the next day and that Playa
would contact the agent within 24 hours. Playa then states that on
March 14, it tested the KRCK signal and found no problems. At that
time, the San Diego agent arrived and used a hand held spectrum
analyzer to determine that translator "K238AK's recently installed
amplifier was noncompliant." Playa then shut down the translator.
Playa argues that the violation was not repeated, because the
violation was not a continuous violation that occurred for more than
one day. Instead, Playa states that it was first notified of the
emission from the San Diego agent on March 13, 2008, and that it shut
down the translator on March 14, 2008, therefore, Playa reasons, "any
noncompliant emissions did not occur for more than one day." We
disagree. Section 312(f)(2) of the Act, which applies to violations
for which forfeitures are assessed under Section 503(b) of the Act,
provides that "[t]he 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." We first note that the San Diego
Office records show that a complaint from the Sherriff's Department
regarding interference containing KRCK's audio on 122.875 MHz to
aviation frequencies was received by the San Diego Office on March 12,
2008, and the San Diego agent contacted Playa and spoke with Playa's
owner on March 12, 2008, about the complaint. On March 13, 2008, the
San Diego agent drove to Palm Dessert and located the source of the
interference to the signals emanating from translator K238AK. The
agent repeated these efforts again on March 14, 2008, and the agent
located the signal to translator K238AK. After the agent determined
that the emissions were occurring again on March 14, 2008, the agent
conducted the inspection which resulted in Playa shutting off the
K238AK translator. Even if we believe Playa's assertion that it was
not made aware of the violation until March 13, 2008, we conclude that
the San Diego Office found the unauthorized emissions occurring on two
days. Consequently, the violation was repeated under Section 312(f)(2)
of the Act.
9. Playa also argues that its violation was not willful because it worked
with the San Diego agent, was told that an immediate shut down was not
necessary, and when the San Diego agent performed the inspection on
March 14, 2008, and determined translator K238AK was the source of the
unauthorized emissions, Playa immediately shut down the translator.
Section 312(f)(1) of the Act, which also applies to violations for
which forfeitures are assessed under Section 503(b) of the Act,
provides that "[t]he term `willful', when used with reference to the
commission or omission of any act, 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...." Again, the San Diego Office
record for this case indicates that the complaint was received on
March 12, 2008, and that contact was made with Playa on March 12,
2008. At that point, Playa was aware of unauthorized emissions
containing its station's audio which appeared to be coming from its
equipment. According to its Response, Playa was still unable to
determine the origin of these emissions on March 14, 2008, when the
San Diego agent determined that translator K238AK was the source of
the emissions. Fundamentally, Playa's responsibility for these
emissions was confirmed when the translator was turned off, and the
unauthorized emissions ceased. While the San Diego Office records
dispute Playa's assertions regarding when and what the San Diego agent
advised Playa related to the interference, one fact is clear: Playa
did not cease the unauthorized emissions until the San Diego agent
confirmed Playa as the source of the interference on March 14, 2008,
and at that point, Playa acknowledges that it had been aware since at
least March 13, 2008, that it was the likely source of unauthorized
emissions causing interference to aviation frequencies. Consequently,
we find that Playa's violation was willful.
10. Finally, Playa argues that it addressed the issue "promptly and fully"
and that a forfeiture is not warranted. We remind Playa that the
Commission has stated in the past that a licensee is expected to
correct errors when they are brought to the licensee's attention and
that such correction is not grounds for a downward adjustment in the
forfeiture.
11. We have examined the 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 Playa willfully
and repeatedly violated Section 74.1236(c) of the Rules. Considering
the entire record and the factors listed above, we find that neither
reduction nor cancellation of the proposed $4,000 forfeiture is
warranted.
IV. ORDERING CLAUSES
12. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Playa Del Sol
Broadcasters, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$4,000 for willfully and repeatedly violating Section 74.1236(c) of
the Rules.
13. 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 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. 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.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Playa Del
Sol Broadcasters, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S: 74.1236(c).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832940003
(Enf. Bur., Western Region, San Diego Office, released July 31, 2008).
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)(E).
47 U.S.C. S: 312(f)(2).
47 U.S.C. S: 312(f)(1).
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 74.1236(c).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-1539
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Federal Communications Commission DA 09-1539