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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-FIELDSCR-12-00000602
)
AERCO Broadcasting Corporation NAL/Acct. No.: 201232680005
)
Licensee of Station WSJU-TV FRN No.: 0003732435
)
San Juan, PR 00927 Facility ID No.: 4077
)
)
NOTICE OF APPARENT LIABILITY FOR FOFEITURE AND ORDER
Adopted: July 30, 2012 Released: July 30, 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 AERCO Broadcasting Corporation (AERCO), licensee of
Station WSJU-TV in San Juan, Puerto Rico, apparently willfully and
repeatedly violated Section 301 of the Communications Act of 1934, as
amended (Act), by operating a studio-to-transmitter link (STL) without
FCC authorization. We conclude that AERCO is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000). In
addition, we direct AERCO to submit no later than thirty (30) calendar
days from the date of this NAL a statement, signed under penalty of
perjury, describing the steps it has taken to bring its unlicensed STL
into compliance.
II. BACKGROUND
2. On February 29, and May 16 and 17, 2012, in response to a complaint of
interference, agents from the Enforcement Bureau's San Juan Office
(San Juan Office) used direction-finding techniques to locate the
source of radio frequency transmissions on the frequency 2067.5 MHz.
On each inspection date, the agents determined that the source of the
transmission on 2067.5 MHz was Station WSJU-TV's main studio located
at 1508 Bori Street, Urb. Antonsanti, San Juan.
3. During the inspection of Station WSJU-TV on May 17, 2012, an agent
from the San Juan Office observed that the Station was operating an
aural broadcast STL on the frequency 2067.5 MHz. In response to the
agent's request to see the license for the STL link, the Station
employee on duty admitted that the Station did not have an
authorization or license for the STL link. Later that same day, the
agent spoke to the Station's engineer via telephone, and the Station's
engineer also admitted that the Station was using 2067.5 MHz to
transmit programming from the main studio to the transmitter site and
that the Station had no license for the STL. The agent consulted the
Commission's databases and confirmed that, indeed, AERCO does not hold
a license to operate a STL on 2067.5 MHz from that or any other
location.
III. DISCUSSION
4. Section 503(b) of the 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. Operation of an Unlicensed Studio-to-Transmitter Link
5. The evidence in this case establishes that AERCO violated Section 301
of the Act. Section 301 of the Act requires that no person shall use
or operate any apparatus for the transmission of energy or
communications or signals by radio within the United States, except
under and in accordance with the Act and with a license. On February
29, and May 16 and 17, 2012, agents from the San Juan Office
determined that transmissions on the frequency 2067.5 MHz were
emanating from Station WSJU-TV's main studio in San Juan. On May 17,
2012, an agent observed that Station WSJU-TV was operating an STL on
2067.5 MHz; and, in response to the agent's questions, AERCO staff
admitted that the Station was operating an STL on 2067.5 MHz and that
it did not have a license for the STL. An agent from the San Juan
Office also confirmed after checking the Commission's databases that
AERCO does not hold a license to operate on 2067.5 MHz from that or
any other location. Thus, based on the evidence before us, we find
that AERCO apparently willfully and repeatedly violated Section 301 of
the Act by operating an unlicensed STL link on the frequency 2067.5
MHz.
A. Proposed Forfeiture Amount and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation without
an instrument of authorization is $10,000. 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. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we find no
downward adjustments are warranted and conclude that AERCO is
apparently liable for a forfeiture of $10,000 for operation of an
unlicensed STL.
7. We also direct AERCO to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of AERCO, stating that it is operating Station
WSJU-TV and its associated STL in compliance with Section 301 of the
Act, and detailing the specific actions taken by AERCO to come into
compliance. This statement must be provided to the San Juan Office at
the address listed in paragraph 13, below, 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, AERCO Broadcasting
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
violations of Section 301 of the Act.
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,
AERCO Broadcasting Corporation 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 AERCO Broadcasting Corporation SHALL SUBMIT
a statement as described in paragraph 7, above, 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 00918-1731. AERCO Broadcasting Corporation 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. AERCO Broadcasting Corporation shall send
electronic notification of payment to SCR-Response@fcc.gov on the date
said payment is made. 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 1.16 and 1.80(f)(3) 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 00918-1731, and include the NAL/Acct. No. referenced in the
caption. AERCO Broadcasting Corporation 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 AERCO Broadcasting
Corporation at 1508 Calle Bori, Urb. Antonsanti, San Juan, PR 00927.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent
San Juan Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
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 U.S.C. S: 301.
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.
The Enforcement Bureau has determined that unauthorized operation in any
of the licensed services is a serious violation and will merit the base
forfeiture of $10,000 prior to the application of the adjustment criteria
listed in Section 503(b)(2)(E) of the Act. See BASF Corporation, Notice of
Apparent Liability for Forfeiture, 25 FCC Rcd 17300, 17302-03, paras. 9-11
(Enf. Bur. 2010) (applying the $10,000 base forfeiture for unauthorized
operation of a station in the Private Land Mobile Radio Service, then
upwardly adjusting the total forfeiture to $25,000 for that violation and
for failure to file a timely renewal application for the station).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 301.
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80.
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).
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(continued....)
Federal Communications Commission DA 12-1215
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Federal Communications Commission DA 12-1215