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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Siembra Fertil P.R. Inc. ) File No.: EB-FIELDSCR-12-00001328
Licensee of Station WJDZ(FM) ) NAL/Acct. No.: 201232680004
Pastillo, Puerto Rico ) FRN: 0016447872
Facility ID#: 83299 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 26, 2012 Released: July 26, 2012
By the Resident Agent, San Juan Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Siembra Fertil P.R. Inc. (Siembra), licensee of Station
WJDZ(FM), located in Pastillo, Puerto Rico, apparently willfully and
repeatedly violated Section 73.1125(a) of the Commission's rules
(Rules) by failing to staff fully Station WJDZ's main studio during
normal business hours. We conclude that Siembra is apparently liable
for a forfeiture in the amount of seven thousand dollars ($7,000). In
addition, no later than thirty (30) calendar days from the date of
this NAL, we direct Siembra to submit a statement signed under penalty
of perjury that it is maintaining a full-time management and staff
presence at Station WJDZ's main studio.
II. BACKGROUND
2. On March 1, 2012, an agent from the Enforcement Bureau's San Juan
Office (San Juan Office) attempted to inspect Station WJDZ's main
studio at 11:31 A.M. and found the main studio unattended. The agent
telephoned the station's manager, who stated a technician would be
able to meet him at the main studio at 1:30 P.M. The agent returned to
the main studio at 1:25 P.M. and conducted the inspection with the
technician. The technician stated that he is the only person who works
at the main studio, as the station manager works in Toa Baja, Puerto
Rico, a location more than an hour and a half drive from the main
studio. He also stated that his hours are 6:00 A.M. to 11:30 A.M. and
12:30 P.M. to 3:00 P.M., Monday to Friday.
3. On March 5, 2012, an agent from the San Juan Office attempted to
inspect Station WJDZ's main studio at 12:05 P.M. and 2:00 P.M., but
found the station unattended and locked. The agent returned on March 7
and 16, 2012 at 10:15 A.M. and 2:02 P.M, respectively, and again found
the station unattended and locked.
III. DISCUSSION
4. 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. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission may
also assess a forfeiture for violations that are merely repeated, and
not willful. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
A. Failure to Maintain Management and Staff Presence at Station WJDZ
Main Studio
5. Section 73.1125(a) of the Rules requires broadcast stations to
maintain a main studio. The Commission has interpreted Section 73.1125
(also known as the Main Studio Rule) to require, among other things,
that a licensee maintain a "meaningful management and staff presence"
at its main studio. Specifically, the Commission has found that a main
studio "must, at a minimum, maintain full-time managerial and
full-time staff personnel." Although management personnel need not be
"chained to their desks" during normal business hours, they must
"report to work at the main studio on a daily basis, spend a
substantial amount of time there and...use the studio as a `home
base.'" On March 1, 2012, an agent from the San Juan Office found
Station WJDZ's main studio unattended in the morning. The agent
interviewed a technician later in the day, who claimed he is the only
person who works at the main studio, as his supervisor worked at
another distant location. On March 5, 7, and 16, 2012, an agent from
the San Juan Office attempted to inspect Station WJDZ's main studio
during the hours when it is allegedly staffed and found the main
studio unattended and locked. Thus, based on the evidence before us,
we find that Siembra apparently willfully and repeatedly violated
Section 73.1125(a) of the Rules by failing to maintain a full-time
managerial and staff presence at Station WJDZ's main studio.
A. Proposed Forfeiture and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for violation of a main
studio rule is $7,000. 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, and history of prior offenses,
ability to pay, and other such matters as justice may require.
Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that
Siembra is apparently liable for a forfeiture in the amount of $7,000.
7. We direct Siembra to submit a written statement, pursuant to Section
1.16 of the Rules, signed under penalty of perjury that the licensee
is maintaining a full-time management and staff presence at the
Station WJDZ main studio. This statement must be provided to the San
Juan Office at the address listed in paragraph 13 within thirty (30)
calendar days of the release date of this NAL.
IV. ORDERING CLAUSES
8. 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, Siembra Fertil P.R.
Inc.is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of seven thousand dollars ($7,000) for violations of
Section 73.1125(a) of the Commission's rules.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Siembra Fertil P.R. Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. IT IS FURTHER ORDERED that Siembra Fertil P.R. Inc. SHALL SUBMIT a
statement as described in paragraph 7 to the San Juan Office within
thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order. The statement must be
mailed to Federal Communications Commission, Enforcement Bureau, South
Central Region, San Juan Office, U.S. Federal Building, Room 762, Hato
Rey, PR 00918. Siembra Fertil P.R. Inc. shall also e-mail the written
statement to SCR-Response@fcc.gov.
11. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Siembra Fertil P.R. Inc. will also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
12. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
13. 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. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, San Juan Office, U.S. Federal Building, Room 762, Hato
Rey, PR 00918 and include the NAL/Acct. No. referenced in the caption.
Siembra San Eladio, Inc. also shall e-mail the written response to
SCR-Response@fcc.gov.
14. 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail, to Siembra Fertil P.R. Inc.
at PO Box 50101, Toa Baja, PR 00778.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent
San Juan Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 17.57.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S: 73.1125.
Amendment of Sections 73.1125 and 73.1130 of the Commission's Rules, the
Main Studio and Program Origination Rules for Radio and Television
Broadcast Stations, Memorandum Opinion and Order, 3 FCC Rcd 5024, 5026
(1988) (Main Studio and Program Origination Rules), erratum issued, 3 FCC
Rcd 5717 (1988) (correcting language in n.29).
See Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order,
6 FCC Rcd 3615, 3616 & n.2 (1991) (noting that, "This is not to say that
the same staff person and manager must be assigned full-time to the main
studio. Rather, there must be management and staff presence on a full-time
basis during normal business hours to be considered `meaningful.'"),
clarified, 7 FCC Rcd 6800 (1992) (Jones Eastern II). See also Birach
Broadcasting Corporation, Notice of Apparent Liability, 25 FCC Rcd 2635
(Enf. Bur. 2010).
Jones Eastern II, 7 FCC Rcd at 6802.
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.1125(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1178
3
Federal Communications Commission DA 12-1178