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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
)
)
ORDER ON REVIEW
Adopted: January 20, 2010 Released: January 22, 2010
By the Commission:
I. INTRODUCTION
1. In this Order on Review ("Order on Review"), we deny the Application
for Review filed by International Broadcasting Corporation ("IBC"),
owner of antenna structure # 1026702, in Canovanas, Puerto Rico,
pursuant to section 1.115 of the Commission's Rules ("Rules"). IBC
seeks review of the Enforcement Bureau's ("Bureau") Memorandum Opinion
and Order granting in part and denying in part IBC's petition for
reconsideration of a Forfeiture Order issued January 9, 2008. The
Forfeiture Order imposed a monetary forfeiture in the amount of
$13,000 for IBC's willful and repeated violation of sections 17.50 and
17.57 of the Rules. The noted violations involved 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.
In the Memorandum Opinion and Order, the Enforcement Bureau reduced
the forfeiture to $10,400 based on IBC's history of compliance with
the Rules.
II. BACKGROUND
2. Section 17.50 of the Rules requires that antenna structures requiring
painting be cleaned or repainted as often as necessary to maintain
good visibility. Section 17.57 of the Rules requires that the owner of
an antenna structure for which an Antenna Structure Registration
("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.
3. On September 7 and 11, and October 25, 2007, inspections of IBC's
antenna structure revealed that the paint on most of the tower was
missing, leaving the metal exposed and reducing the tower's
visibility. On September 7 and 11, and November 1, 2007, Del Pueblo
Radio Corporation was listed as the owner of antenna structure #
1026702 in the Commission's ASR database. IBC's owner admitted that it
acquired the structure in 2003. In light of these facts, the
Forfeiture Order imposed a monetary forfeiture in the amount of
$13,000 for failure to paint antenna structure # 1026702 to maintain
good visibility, and failure to notify the Commission of a change in
antenna structure ownership. In the Memorandum Opinion and Order, the
Enforcement Bureau reduced the forfeiture to $10,400 based on IBC's
history of compliance with the Rules.
4. In its Application for Review, IBC asserts that the Bureau applied a
precedent or policy that should be overturned. Specifically, IBC
claims that the Bureau's failure to consider its prompt
post-inspection efforts to come into compliance with the Rules is
inconsistent with the Commission's Forfeiture Policy Statement and
section 503(b) of the Act. IBC asserts that the Bureau should have
considered IBC's efforts to remediate its rule violations and
exercised its discretion to depart downward from the base forfeiture
amounts, because such discretion would be consistent with "the
statutory imperative that the Commission take a holistic approach to
evaluating the violation and the violator in assessing whether to
impose a forfeiture, and what adjustment of the forfeiture amount if
any, shall be made." IBC states that, at a minimum, the Bureau should
have explained why it did not consider IBC's post-inspection
compliance efforts. IBC, however, does not dispute that its antenna
structure required paint or that it failed to update the ownership
information in the ASR database.
III. DISCUSSION
5. The Bureau, in the Forfeiture Order and Memorandum Opinion and Order,
correctly applied the Commission's long-standing policy of finding
that corrective action taken to come into compliance with the Rules is
expected and does not nullify or mitigate any prior forfeitures or
violations. As the Commission has long held, "[t]he forfeiture
provisions of section 503 of the Communications Act are intended to
encourage broadcast station licensees to take appropriate action to
prevent violations. Basing mitigation or cancellation of a forfeiture
upon corrective action taken subsequent to the misconduct upon which
liability is based would tend to encourage remedial, rather than
preventive, action." The Commission took such an approach prior to and
subsequent to adoption of the Forfeiture Policy Statement.
6. We find that the record in this case does not provide any reason to
deviate from this long-standing policy regarding remedial compliance
efforts. The record shows that the paint on IBC's antenna structure
was so deteriorated that it required new paint prior to the agents'
first inspection in order to comply with section 17.50 of the Rules.
The record also shows that IBC acquired the antenna structure more
than three years prior to the agents' inspection, yet IBC failed to
take any actions to update its ownership information until after the
Commission notified it of the violation. Although IBC hired a
contractor within a week of the first two inspections, repainted the
tower by January 11, 2008, and updated the ASR database on December
13, 2007, such action to come into compliance with the Rules is
expected and does not warrant reduction of the forfeiture. If IBC had
failed to correct the violations in a prompt manner, the Bureau could
have issued an additional and significantly higher proposed
forfeiture. Moreover, to reduce the forfeiture as requested would be
to reward postponement of compliance with the Rules until after a
Commission inspection. We find such an approach contrary to the public
interest.
7. Upon review of the Application for Review and the entire record
herein, we conclude that IBC has failed to demonstrate that the Bureau
erred. The Bureau properly decided the matters before it, and we
uphold its decision in its Forfeiture Order and Memorandum Opinion and
Order.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED, pursuant to section 1.115(g) of the
Commission's Rules, that the Application for Review filed by
International Broadcasting Corporation IS DENIED and the Memorandum
Opinion and Order IS AFFIRMED.
9. Payment of the $10,400 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 on Review. 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. IBC will also send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
10. IT IS FURTHER ORDERED that this Order on Review shall be sent by
regular mail and by certified mail, return receipt requested, to
International Broadcasting Corporation at its address of record and to
its counsel, Richard F. Swift, Fletcher, Heald & Hildreth, P.L.C.,
1300 North 17th Street, 11th Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 C.F.R. S: 1.115.
International Broadcasting Corporation, Memorandum Opinion and Order, 23
FCC Rcd 4027 (Enf. Bur. 2008) ("Memorandum Opinion and Order").
International Broadcasting Corporation, Forfeiture Order, 23 FCC Rcd 71
(Enf. Bur. South Central Region 2008) ("Forfeiture Order").
47 C.F.R. S:S: 17.50, 17.57.
Antennas structures, such as antenna structure # 1026702, more than 200
feet in height must be painted and lit. See 47 C.F.R. S: 17.21.
International Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200832680001 at 1 (Enf. Bur. San Juan Office,
rel. November 13, 2007).
IBC Application for Review at 3-4.
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").
47 U.S.C. S: 503(b).
IBC Application for Review at 4.
International Broadcasting Corp., Memorandum Opinion and Order, 19 FCC2d
793, 793 (1969). See also, e.g., Cumulus Licensing Corp., Memorandum
Opinion and Order, 23 FCC Rcd 5286 (2008) (finding that post-notification
remedial efforts do not warrant mitigation of forfeiture); Sutro
Broadcasting Corporation, Memorandum Opinion and Order, 19 FCC Rcd 15274,
15277 (2004) (stating that the Commission will generally reduce the
assessed forfeiture amount "based on the good faith corrective efforts of
a violator when those actions were taken prior to Commission notification
of the violation") (emphasis added); CB Radio, Inc., Memorandum Opinion
and Order, 22 FCC Rcd 8836, 8839-40 (2007) (noting that "it is well
established that post-investigational efforts to correct a violation do
not mitigate the forfeiture or warrant a reduction in the assessed
forfeiture amount"); AT&T Wireless Services, Inc., Forfeiture Order, 17
FCC Rcd 21866, 21875-76 (2002) (finding that a downward adjustment of an
aggregate forfeiture was not warranted where the carrier lacked an
effective antenna compliance program at the time of the violations and
only corrected such violations after the Commission brought them to its
attention); Independent Communications, Inc., Memorandum Opinion and
Order, 14 FCC Rcd 9605, 9609 (1999) (finding that a downward adjustment of
a forfeiture was not warranted for development of compliance plan after
discovery of the violations); Seawest Yacht Brokers, Forfeiture Order, 9
FCC Rcd 6099, 6099 (1994) (finding that a downward adjustment of a
forfeiture was not warranted where a public coast station operator
discontinued unauthorized operations after the NAL was issued); TCI
Cablevision of Maryland, Inc., Memorandum Opinion and Order, 7 FCC Rcd
6013, 6014 (1992) (finding that a downward adjustment was not warranted
where a cable operator repaired the signal leakages after
inspection/issuance of the NAL). See also Odino Joseph, Forfeiture Order,
18 FCC Rcd, 16522, 16524 (Enf. Bur. 2003) (finding that a downward
adjustment was not warranted, where a pirate broadcaster terminated all
transmissions after the Commission's investigation); Kenneth Paul Harris,
Sr., Forfeiture Order, 15 FCC Rcd 23991, 23002 (Enf. Bur. 2000) (finding
that a broadcast licensee, who took corrective steps and sought legal
counsel only after the Commission initiated its investigation into the
Section 301 unauthorized transfer issue, did not demonstrate a good faith
effort to comply).
See id.
The Commission also clarified that "[p]ost-notification remedial efforts
cannot mitigate the effects of a violation that results in the issuance of
forfeiture. However, post-notification remedial efforts may be relevant in
determining the ultimate severity of any further or future enforcement
action. Thus, for instance, a licensee that takes minimal steps to remedy
a violation post-notification could receive an NAL that is significantly
higher (by way of an upward adjustment) than a licensee that takes
substantial steps to come into compliance as quickly as possible --
although neither licensee can reduce its forfeiture liability for its
pre-notification violation." Cumulus Licensing Corp. at 5291.
47 C.F.R. S: 1.115(g).
47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
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Federal Communications Commission FCC 10-19
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Federal Communications Commission FCC 10-19