Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Ace of Hearts Disc Jockey Service,
Inc. ) File Number EB-09-TP-0185
Licensee of Station W277AN ) NAL/Acct. No. 201132700003
Cape Canaveral, Florida ) FRN 0008590853
Facility ID #143943 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: March 8, 2011 Released: March 8, 2011
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Ace of Hearts Disc Jockey Service, Inc. ("Ace of Hearts"),
licensee of translator station W277AN, in Cape Canaveral, Florida,
apparently willfully and repeatedly violated sections 73.1350 and
74.1235(e) of the Commission's rules ("Rules") by: (1) operating
overpower; and (2) utilizing an unauthorized transmitting antenna
system. We conclude that Ace of Hearts is apparently liable for a
forfeiture in the amount of thirteen thousand dollars ($13,000).
II. BACKGROUND
2. Station W277AN is authorized to operate with a transmitter output
power of 0.061 kW (61 watts). When operating with a transmitter output
power of 61 watts, the expected field strength for Station W277AN's
signal is 47 mV/m. On October 28, 2009 and February 7, 2010, as part
of an on-going investigation, agents from the Enforcement Bureau's
Tampa Office ("Tampa Office") measured the field strength of Station
W277AN's signal at 82 mV/m and 92 mV/m, respectively, which means that
the station was operating with more than its authorized transmitter
output power.
3. On February 26, 2010, agents from the Tampa Office inspected Station
W277AN's transmitter site. The agents observed that the meter on the
amplifier for Station W277AN registered a power output of 172 watts,
which is 280% over the station's authorized power. The President of
Ace of Hearts stated that he was unaware of the station's overpower
operation and that it could have been caused by a problem with the
amplifier. However, the agents found no record of any problems with
the amplifier in the station's technical operating logs. Ace of Hearts
promptly reduced its transmitter output power to 61 watts during the
inspection.
4. On September 22, 2010 and September 24, 2010, in response to a
complaint of interference, agents from the Tampa Office again measured
the field strength of Station W277AN's signal at 74 mVm and 82 mVm,
respectively, which means that the station was operating with more
than its authorized transmitter output power. During an inspection of
the station on September 22, 2010, the agents observed that the meter
on the amplifier for Station W277AN registered a power output of 140
watts, which is 229% over the station's authorized power.
5. Station W277AN is authorized to operate with one antenna. Based on
photographs taken during the Tampa Office's October 28, 2009
investigation, the agents determined that Station W277AN was using a
two-antenna array. The agents confirmed by direct observation that
Station W277AN was in fact using a two-antenna array on February 7,
2010, February 26, 2010 and September 22, 2010.
III. DISCUSSION
6. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. The term
"willful" as used in section 503(b) of the Act has been interpreted to
mean simply that the acts or omissions are committed knowingly. The
term "repeated" means the commission or omission of such act more than
once or for more than one day.
7. Section 73.1350 of the Rules states that each licensee is responsible
for maintaining and operating its broadcast station in a manner which
complies with the technical rules set forth elsewhere in this part and
in accordance with the terms of the station authorization. Although
Station W277AN's license authorizes it to operate with only one
antenna section, as discussed above, photographs taken on October 28,
2009 as well as direct observations on February 7, 2010, February 26,
2010 and September 22, 2010 reveal that Station W277AN was operating
with a two-antenna array transmission system. Thus, based on the
evidence before us, we find that Ace of Hearts apparently willfully
and repeatedly violated section 73.1350 of the Rules by using an
unauthorized transmitting antenna system.
8. Section 74.1235(e) of the Rules states that in no event shall a
station authorized under this subpart be operated with a transmitter
power output (TPO) in excess of the transmitter certificated rating
and the TPO shall not be more than 105 percent of the authorized TPO.
Station W277AN is authorized to operate with a transmitter output
power of 0.061 kW or 61 watts. During inspections on February 26, 2010
and September 22, 2010, agents from the Tampa Office observed that the
amplifier for Station W277AN was reading a power output of 172 watts
and 140 watts, respectively. On October 28, 2009, February 7, 2010,
September 22, 2010 and September 24, 2010, agents from the Tampa
Office determined through measurements that Station W277AN operated
above its authorized transmitter output power. Although Ace of Hearts
was informed orally that it was operating overpower on February 26,
2010, it continued its overpower operations on September 22, 2010 and
September 24, 2010. Thus, based on the evidence before us, we find
that Ace of Hearts apparently willfully and repeatedly violated
section 74.1235(e) of the Rules by operating above its authorized
transmitter output power.
9. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for exceeding power
limits is $4,000 and the base forfeiture amount for the use of
unauthorized equipment is $5,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, 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. Ace of Hearts operated overpower on at least five different
occasions, two of which occurred after an oral warning. The fact that
Ace of Hearts continued to operate overpower after being informed that
the station was operating overpower in violation of the Rules
demonstrates a deliberate disregard for the Commission's requirements,
justifying an upward adjustment of $4,000. Applying the Forfeiture
Policy Statement, section 1.80, and the statutory factors to the
instant case, we conclude that Ace of Hearts is apparently liable for
a total forfeiture of $13,000 consisting of $5,000 for violation of
section 73.1350 of the Rules and $8,000 for violation of section
74.1235(e) of the Rules.
10. We direct Ace of Hearts to submit a statement signed under penalty of
perjury by an officer or director of Ace of Hearts stating that it is
currently operating Station W277AN at authorized power levels and with
an authorized antenna system. If it is not operating with an
authorized antenna system, Ace of Hearts shall describe the steps it
has taken to notify the Media Bureau and come into compliance. This
statement must be provided to the Tampa Office at the address listed
in paragraph 15 within fifteen days of the release date of this Notice
of Apparent Liability for Forfeiture.
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, 0.204,
0.311, 0.314 and 1.80 of the Commission's Rules, Ace of Hearts Disc
Jockey Service, Inc., is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of thirteen thousand dollars ($13,000)
for violation of sections 73.1350 and 74.1235(e) of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Ace of Hearts Disc Jockey
Service, Inc., SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
13. IT IS FURTHER ORDERED that, within fifteen days of the release date of
this Notice of Apparent Liability for Forfeiture, Ace of Hearts Disc
Jockey Service, Inc. SHALL SUBMIT a sworn statement as described in
paragraph 10 to the Tampa Office listed below.
14. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Ace of Hearts Disc Jockey Service, Inc., will
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
15. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Tampa Office, 4010 W. Boy Scout Blvd., Suite
425, Tampa, Florida 33607, and must include the NAL/Acct. No.
referenced in the caption. Ace of Hearts Disc Jockey Service, Inc.
shall also email the response to SCR-Response@fcc.gov.
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Ace of Hearts Disc Jockey Service,
Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.1350, 74.1235(e).
License File Number BLFT-20070220AA0.
On February 26, 2010, agents from the Tampa Office measured the field
strength of Station W277AN's signals after the station's transmitter
output power was reduced to 61 watts.
License File Number BLFT-20070220AA0. The license specifically describes
the antenna type as "Non-Directional, OMB MP-1." Based on manufacturer
specifications, the OMB MP-1 consists of only one antenna section.
47 U.S.C. S: 503(b).
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', 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...." See, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
FCC Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also 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."
47 C.F.R. S: 73.1350.
See License File Number BLFT-20070220AA0.
47 C.F.R. S: 74.1235(e).
See License File Number BLFT-20070220AA0.
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) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See Nounoune Lubin, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 12654 (Enf. Bur. 2010) (upwardly adjusting forfeiture by 100 percent
because violator operated an unlicensed radio station on multiple days
with full knowledge that such action violated the Rules).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.1350, 74.1235(e).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-443
2
Federal Communications Commission DA 11-443
See 47 C.F.R. S: 1.1914.