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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Consolidated Radio, Inc. ) File No: EB-10-HU-0045
Licensee of Station KVOZ(AM) ) NAL/Acct. No.: 201132540002
Del Mar Hills, Texas ) FRN No.: 0006158083
Facility ID #: 6429 )
)
FORFEITURE ORDER
Adopted: October 27, 2011 Released: October 27, 2011
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 twenty-one thousand dollars ($21,000) to Consolidated
Radio, Inc. ("Consolidated Radio"), licensee of Station KVOZ(AM) in
Del Mar Hills, Texas, for willful and repeated violation of sections
73.1125, 73.1745(a), and 73.3526 of the Commission's rules ("Rules").
The noted violations involved Consolidated Radio's failure to: (1)
maintain a main studio in the community of license; (2) operate
consistent with the terms of its station authorization; and (3)
maintain and make available a complete public inspection file.
II. BACKGROUND
2. On May 16, 2011, the Enforcement Bureau's Houston Office ("Houston
Office") issued a Notice of Apparent Liability for Forfeiture and
Order ("NAL") to Consolidated Radio for failing to maintain a main
studio in the community of license, operating inconsistent with the
terms of its station authorization, and failing to maintain and make
available a complete public inspection file. In view of the record
evidence, the NAL proposed a forfeiture of $21,000 against
Consolidated Radio for violation of sections 73.1125, 73.1745(a), and
73.3526 of the Rules. Consolidated Radio submitted a response to the
NAL certifying that it has corrected all of the violations set forth
in the NAL and requesting cancellation or reduction of the proposed
forfeiture due to its limited station funding which "relies entirely
on donations from the listener community."
III. DISCUSSION
3. 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 Forfeiture Policy
Statement. In examining Consolidated Radio'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. As discussed below, we have considered Consolidated Radio's
response in light of these statutory factors and find no basis upon
which to reduce the forfeiture.
4. As set forth in the NAL, an agent from the Houston Office determined
that: (1) Station KVOZ operated with daytime power at night on July 27
and 28, 2010; (2) Station KVOZ failed to maintain a main studio in the
community of license for several months prior to July 29, 2010; and
(3) Station KVOZ failed to maintain and make available a complete
public inspection file for several months prior to July 29, 2010. In
its response to the NAL, Consolidated Radio did not dispute any of the
facts set forth in the NAL and certified that it has since corrected
the violations. The Commission expects parties to take post-inspection
corrective action to come into compliance with the Rules, however, and
such action does not nullify or mitigate any prior violations. Thus,
we find that Consolidated Radio willfully and repeatedly violated
sections 73.1125, 73.1745(a), and 73.3526 of the Rules by failing to:
(1) maintain a main studio in the community of license; (2) operate
consistent with the terms of its station authorization; and (3)
maintain and make available a complete public inspection file.
5. Finally, Consolidated Radio asserts that payment of the forfeiture
would pose a financial hardship. With regard to an individual's or
entity's inability to pay claim, the Commission has determined that,
in general, gross revenues are the best indicator of an ability to pay
a forfeiture. Consolidated Radio, however, provided no documentation
of its finances with its NAL Response. Accordingly, we are unable to
determine whether a reduction based on inability to pay is warranted
and find no basis to reduce the proposed forfeiture of $21,000.
III. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Consolidated
Radio, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
twenty-one thousand dollars ($21,000) for violations of 73.1125,
73.1745(a), and 73.3526 of the Rules.
7. 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 enforcement 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 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.
Consolidated Radio shall also send electronic notification to
SCR-Response@fcc.gov on the date said payment is made.
8. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to
Consolidated Radio, Inc. at P.O. Box 252, McAllen, TX 78505-0252 and
to its attorney, Lauren Lynch Flick at Pillsbury Winthrop Shaw Pittman
LLP, 2300 N Street NW, Washington, DC 20037-1122.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.1125, 73.1745(a), 73.3526.
Consolidated Radio, Inc., Notice of Apparent Liability for Forfeiture and
Order, 26 FCC Rcd 6801 (Enf. Bur. 2011). The facts in the NAL are
incorporated herein by reference.
47 C.F.R. S:S: 73.1125, 73.1745(a), 73.3526.
See Letter from Lauren Lynch Flick, Attorney for Consolidated Radio, Inc.,
to Lee Browning, Resident Agent, Houston Office, Enforcement Bureau, dated
July 6, 2011 ("NAL Response").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S: 503(b)(2)(E).
NAL Response at 1-3.
See International Broadcasting Corporation, Order on Review, 25 FCC Rcd
1538 (2010); Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099
(1994).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, defines willful as the "conscious and deliberate commission or
omission of [any] act, irrespective of any intent to violate" the law.
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), 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."
See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
Consolidated Radio may seek an installment payment plan of the full
forfeiture amount, as described in paragraph 7 infra.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4), 73.1125, 73.1745(a), 73.3526.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 11-1798
2
Federal Communications Commission DA 11-1798