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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of AERCO Broadcasting Corporation Licensee of Station
   WSJU-TV, San Juan, PR 00927 ) ) ) ) ) ) ) File No.:
   EB-FIELDSCR-12-00000602 NAL/Acct. No.: 201232680005 FRN No.: 0003732435
   Facility ID No.: 4077

                                FORFEITURE ORDER

   Adopted: November 18, 2013 Released: November 18, 2013

   By the Regional Director, South Central Region, Enforcement Bureau:


    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of four thousand dollars ($4,000) to AERCO Broadcasting
       Corporation (AERCO), licensee of Station WSJU-TV in San Juan,  Puerto
       Rico (Station), for willfully and repeatedly violating Section 301 of
       the Communications Act of 1934, as amended (Act), and Section 1.903(a)
       of the Commission's rules (Rules).^ The noted violations involved
       AERCO's operation of a studio-to-transmitter link (STL) on an
       unauthorized frequency.


    2. On July 30, 2012, the Enforcement Bureau's San Juan Office (San Juan
       Office) issued a Notice of Apparent Liability for Forfeiture and Order
       (NAL) ^ for ten thousand dollars ($10,000) to AERCO for operating its
       STL on the frequency 2067.5 MHz without a license.^ In response to the
       NAL, AERCO clarifies that its employees incorrectly reported to FCC
       agents that it did not have a license to operate an STL.^ AERCO asks
       that we consider canceling the forfeiture because it had (and still
       has) a valid microwave STL license (i.e., WLJ345) and that, as of
       August 3, 2012, it has changed the frequency for its STL from 2067.5
       MHz to 6912.5 MHz, a frequency that is within the frequency range
       authorized by its license.^ In the alternative, AERCO requests that we
       consider reducing the forfeiture based on its history of compliance
       with the Rules and its inability to pay.^

    3. Given the clarifications in AERCO's filing, the San Juan Office, on
       December 31, 2012, requested additional information from AERCO about
       the operations of its STL.^ In response, AERCO states that it operated
       the STL on 2067.5 MHz for approximately nine months prior to the
       agent's inspection on May 17, 2012.^ AERCO explains that it chose to
       do so because the station, at that time, could not afford to replace
       defective equipment, and that the available equipment was otherwise
       capable of operating on 2067.5 MHz.^ Finally, AERCO confirms that it
       has since purchased new equipment capable of operating on 6912.5 MHz
       on July 12, 2012; that it installed the equipment two days after
       delivery; and that it is now in full compliance with the Rules.^


    4. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
       Forfeiture Policy Statement.^ In examining AERCO's response, Section
       503(b)(2)(E) 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.^

    5. Because AERCO acknowledges that it operated its STL on an unauthorized
       frequency for approximately nine months, in violation of Section 301
       of the Act and Section 1.903 of the Rules, we deny its request for
       cancellation of the forfeiture; however, we find that a reduction of
       the forfeiture is warranted based on the clarification provided
       concerning its STL license. Section 301 of the Act states that 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 issued
       by the Commission.^ Section 1.903(a) of the Rules provides that
       stations in the Wireless Radio Services must be used and operated only
       in accordance with the rules applicable to their particular service
       and with a valid authorization granted by the Commission.^ Section
       1.903(b) further provides that the "holding of an authorization does
       not create any rights beyond the terms, conditions, and period
       specified in the authorization."^ Thus, although AERCO may not have
       been engaged in unlicensed operation of an STL, as originally
       determined, AERCO nevertheless willfully and repeatedly violated
       Section 301 of the Act and Section 1.903(a) of the Rules by operating
       its STL link on an unauthorized frequency.^ However, because AERCO's
       operations were unauthorized, as opposed to unlicensed, we reduce the
       forfeiture from $10,000 to $4,000, the base forfeiture amount for
       operating a microwave STL on an unauthorized frequency.^

    6. We deny AERCO's request for a forfeiture reduction based on history of
       compliance and inability to pay. With respect to its history of
       compliance claim, we find that, contrary to AERCO's assertion, our
       records show that AERCO does not have a history of compliance with the
       Rules. Specifically, on February 21, 2006, the Commission issued a
       notice of apparent liability for forfeiture against AERCO for
       apparently violating indecency rules.^ With respect to AERCO'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.^ In this regard, based on the financial documents provided
       by AERCO, we conclude that its gross revenues are sufficient to
       support the $4,000 forfeiture.^ In its response to the NAL, AERCO also
       asks that we consider its losses.^ Although the Commission has in a
       few limited cases looked to other factors, including profits and
       losses, to determine ability to pay, none of the circumstances extant
       in those cases (which reflect licensees in several financial distress)
       exist here.^ We find that the supporting information and documents
       that AERCO submitted do not reflect a severely distressed company; nor
       do they reflect a company incapable of paying a $4,000 forfeiture.


    7. 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, AERCO
       Broadcasting Corporation IS LIABLE FOR A MONETARY FORFEITURE in the
       amount of four thousand dollars ($4,000) for violations of Sections
       301 of the Act and Section 1.903(a) of the Rules.^

    8. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  AERCO Broadcasting Corporation shall send
       electronic notification of payment to on the date
       said payment is made. The payment must be made by check or similar
       instrument, wire transfer, or credit card, and must include the
       NAL/Account Number and FRN referenced above. 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

     * 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.

   9. Any request for making full payment over time 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,

   10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
   First Class and Certified Mail, Return Receipt Requested, to AERCO
   Broadcasting Corporation at 1508 Calle Bori, Urb. Antonsanti, San Juan, PR
   00927; and to its attorney, John A. Borsari, Borsari & Assoc., PLC, P.O.
   Box 100009, Arlington, VA 22210.


   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   ^ 47 U.S.C. S 301; 47 C.F.R. S 1.903(a).

   ^ See AERCO Broadcasting Corporation, Notice of Apparent Liability for
   Forfeiture and Order, 27 FCC Rcd 8873 (Enf. Bur. 2012) (NAL). A
   comprehensive recitation of the facts and history of this case can be
   found in the NAL and is incorporated herein by reference.

   ^ Letter from John A. Borsari, Attorney for AERCO Broadcasting
   Corporation, to San Juan Office, Enforcement Bureau at 2 (Aug. 29, 2012)
   (on file in EB-FIELDSCR-12-00000602) (NAL Response).

   ^ Id. See also Universal Licensing System for Call Sign WLJ345.

   ^ NAL Response at 3-5.

   ^ Letter from William Berry, Resident Agent, San Juan Office, Enforcement
   Bureau, to AERCO Broadcasting Corporation (Dec. 31, 2012) (on file in

   ^ Letter from John A. Borsari, Attorney for AERCO Broadcasting
   Corporation, to San Juan Office, Enforcement Bureau at 1 (Feb. 8, 2013)
   (on file in EB-FIELDSCR-12-00000602).

   ^ Id.

   ^ Id. at 2.

   ^ 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), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ 47 U.S.C. S 301.

   ^ 47 C.F.R. S 1.903(a).

   ^ 47 C.F.R. S 1.903(b).

   ^ See, e.g., Bryn Mawr Hospital, Notice of Apparent Liability for
   Forfeiture and Order, 27 FCC Rcd 11002 (Enf. Bur. 2012) (finding licensee
   in violation of Section 301 of the Act and Section 1.903 of the Rules for
   operating licensed transmitters on two unauthorized frequencies)
   (forfeiture paid in full).

   ^ The base forfeiture amount for unlicensed operation is $10,000 (see 47
   C.F.R. S 1.80), which is the forfeiture amount originally proposed in the
   NAL, given the record at that time. See NAL, supra note 2. To the extent
   that AERCO is also arguing that no forfeiture should be imposed because it
   is now operating an STL on an authorized frequency, such request is
   denied. In this regard, the Commission has consistently held that
   corrective action taken to come into compliance with Commission rules or
   policy is expected, and does not nullify or mitigate any prior violations.
   See Cumulus Licensing Corp., Forfeiture Order, 19 FCC Rcd 24825, 24818,
   para. 15 (Enf. Bur. 2004). See also AT&T Wireless Services, Inc.
   Forfeiture Order, 17 FCC Rcd 21866, 21871 (2002); Seawest Yacht Brokers,
   Forfeiture Order, 9 FCC Rcd 6099 (1994) (corrective action taken to comply
   with the Rules is expected, and does not mitigate any prior forfeitures or

   ^ See Complaints Regarding Various Television Broadcasts Between February
   2, 2002 and March 8, 2002, Notice of Apparent Liability and Memorandum
   Opinion and Order, 21 FCC Rcd 2664, 2678-84, paras. 52-71 (2006). Although
   the statute of limitations for pursuing forfeiture action in this case has
   expired, the Commission can still rely on the facts underlying the notice
   of apparent liability, which have not been vacated. See Tidewater
   Communications LLC, Memorandum Opinion and Order, 21 FCC Rcd 14589, 14591,
   para. 8 (Enf. Bur. 2006) (finding that because a Notice of Violation
   against the licensee was never cancelled, there remained a history of
   non-compliance with the Rules). Furthermore, even if AERCO could
   demonstrate a history of compliance with the Rules, we find that the
   forfeiture amount remains appropriate, given the facts and circumstances
   of this case.

   ^ See 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).

   ^ The $4,000 forfeiture falls within the percentage range that the
   Commission has previously found acceptable.

   ^ See NAL Response at 3-4.

   ^ See id. at 5  (citing First Greenville Corporation, Memorandum Opinion
   and Order and Forfeiture Order, 11 FCC Rcd 7399 (1996) (First Greenville);
   Benito Rish, Memorandum Opinion and Order, 10 FCC Rcd 2861 (1995) (Rish)).
   Unlike First Greenville, AERCO has not indicated that its owners have
   personally funded its losses, loaned it significant funds, and received no
   income from it. Cf. First Greenville, 11 FCC Rcd at 7403 (considering that
   the station's losses exceeded its income and that the sole shareholder
   funded those losses and received no income from the station when reducing
   proposed forfeiture). Moreover, unlike the affected small community in
   Rish, AERCO services San Juan, a city with a population of 381,931 (based
   on 2010 Census). See (last visited
   Nov. 7, 2012). Cf. Rish, 10 FCC Rcd at 2862 (considering the station's
   unprofitable history and the fact that it was a directional daytime-only
   AM station serving a small community of license with a population of 425
   when reducing proposed forfeiture).

   ^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
   1.80(f)(4), 1.903(a).

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at

   ^ See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 13-2199


   Federal Communications Commission DA 13-2199