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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Paulino Bernal Owner of Antenna Structure No. 1066001
   Tulia, TX ) ) ) ) ) ) ) File No.: EB-11-DL-0122 NAL/Acct. No.:
   201332500001 FRN: 0001696350 Facility ID: 1301




             NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

   Adopted: March 7, 2013 Released: March 7, 2013

   By the District Director, Dallas Office, South Central Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
       we find that Paulino Bernal, owner of antenna structure number 1066001
       (the Antenna Structure), located in Tulia, TX, apparently willfully
       and repeatedly violated Section 17.57 of the Commission's rules
       (Rules),^ by failing to notify the Commission upon a change in
       ownership information for the Antenna Structure. We conclude that Mr.
       Bernal is apparently liable for a forfeiture in the amount of six
       thousand dollars ($6,000). In addition, we direct Mr. Bernal to
       submit, no later than thirty (30) calendar days from the release date
       of this NAL, a statement signed under penalty of perjury that updated
       ownership information for the Antenna Structure has been submitted to
       the Commission.

   II. BACKGROUND

    2. Mr. Bernal is the licensee of AM Station DKTUE in Tulia, Texas^ and
       acquired the station from Dove Media, LLP (Dove Media) on September
       24, 2004.^ According to the radio station purchase agreement, Mr.
       Bernal also acquired a "207 foot Andrews 4-face angle iron AM
       broadcast tower" in Tulia, Texas from Dove Media on September 24,
       2004.^ On February 10, 2012, an agent from the Enforcement Bureau's
       Dallas Office (Dallas Office) informed Station DKTUE staff via
       telephone that Mr. Bernal must update the ownership information in the
       Commission's Antenna Structure Registration (ASR) database. As of
       January 25, 2013, the Commission's ASR database still lists "KLGD
       Attention to Bruce Campbell"^ as the owner of the Antenna Structure.

   III. DISCUSSION

    3. 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 Update Ownership Information for the Antenna Structure

    4. Section 17.57 of the Rules requires owners of registered antenna
       structures to immediately notify the Commission, using FCC Form 854,
       upon any change in structure height or change in ownership
       information.^ According to Commission records, Mr. Bernal acquired
       ownership of the Antenna Structure on September 24, 2004, but, as of
       January 25, 2013, has not filed the required FCC Form 854 to update
       the Antenna Structure's ownership. Based on the evidence before us, we
       find that Mr. Bernal apparently willfully and repeatedly violated
       Section 17.57 of the Rules by failing to notify the Commission of a
       change in ownership for the Antenna Structure.

    B. Proposed Forfeiture Amount and Reporting Requirement

    5. Pursuant to the Commission's Forfeiture Policy Statement and Section
       1.80 of the Rules, the base forfeiture amount for failing to file
       required forms or information is $3,000.^ 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.^ Maintaining current ownership contact information in the
       ASR database is particularly important, because it enables the
       Commission and individuals to notify the antenna structure owner
       promptly in the event of a lighting failure or other malfunction.
       Because Mr. Bernal failed to notify the Commission regarding the
       change in ownership for over eight years, we find this violation
       particularly egregious and warranting an upward adjustment of $3,000.^
       Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
       and the statutory factors to the instant case, we conclude that Mr.
       Bernal  is apparently liable for a  forfeiture in the amount of
       $6,000.

    6. We direct Mr. Bernal to submit a written statement, pursuant to
       Section 1.16 of the Rules,^ signed under penalty of perjury, stating
       that he has submitted an FCC Form 854 to the Commission to update the
       ownership information for the Antenna Structure. Mr. Bernal shall also
       certify that he will otherwise comply with the Commission's painting
       and lighting requirements for the Antenna Structure.^ This statement
       must be provided to the Dallas Office at the address listed in
       paragraph 9 within thirty (30) calendar days of the release date of
       this NAL.

   IV. ORDERING CLAUSES

    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 of the Commission's rules, Paulino Bernal is
       hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
       amount of six thousand dollars ($6,000) for violation of Section 17.57
       of the Rules.^

    8. 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,
       Paulino Bernal SHALL PAY the full amount of the proposed forfeiture or
       SHALL FILE a written statement seeking reduction or cancellation of
       the proposed forfeiture.

    9. IT IS FURTHER ORDERED that Paulino Bernal SHALL SUBMIT a written
       statement, as described in paragraph 6, 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,
       Dallas Office, 9330 LBJ Freeway, Suite 1170, Dallas,  TX 75243.
       Paulino Bernal shall also e-mail the written statement to
       [1]SCR-Response@fcc.gov.

   10. 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. Paulino Bernal shall also send electronic
       notification on the date said payment is made to
       [2]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.

   11. 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, [3]ARINQUIRIES@fcc.gov.

   12. 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, Dallas Office, 9330 LBJ Freeway, Suite 1170, Dallas,
       TX 75243 and include the NAL/Acct. No. referenced in the caption.
       Paulino Bernal also shall e-mail the written response to
       [4]SCR-Response@fcc.gov.

   13. 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.

   14. 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 Paulino Bernal at 307 East
       Jackson, P.O. BOX 252, McAllen, TX 78505-0252.

   FEDERAL COMMUNICATIONS COMMISSION

   James D. Wells

   District Director

   Dallas Office

   South Central Region

   Enforcement Bureau

   ^ 47 C.F.R. S 17.57.

   ^ See License File No. BAL-RA1104XU.

   ^ See License File No. BAL-20040601AAA.

   ^ Id.

   ^ Bruce Campbell is the Vice President of Dove Media, LLP. See License
   File No. BAL-20040601AAA.

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

   ^ 47 U.S.C. S 312(f)(1).

   ^ H.R. Rep. No. 97-765, 97^th 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 17.57.

   ^ 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).

   ^ See Quinn Broadcasting Inc., Notice of Apparent Liability for Forfeiture
   and Order, 27 FCC Rcd 5787 (Enf. Bur. 2012) (proposing $6,000 forfeiture
   for failure to update ASR ownership information for over eight years).

   ^ 47 C.F.R. S 1.16.

   ^ See 47 U.S.C. S 303(q); 47 C.F.R. SS 17.1 - 17.57. If the Antenna
   Structure is dismantled, Mr. Bernal must submit another FCC Form 854 to
   the Commission within 24 hours of completion of the dismantlement. See 47
   C.F.R. S 17.57.

   ^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
   17.57.

   ^ 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. SS 1.16, 1.80(f)(3).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 13-327

                                       5

   Federal Communications Commission DA 13-327

References

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