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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-FIELDSCR-12-00001943
Centro Colegial Cristiano, )
Inc. NAL/Acct. No.: 201332680001
)
Licensee of FM Station WVID FRN: 0001729490
)
Anasco, Puerto Rico Facility ID No.: 10053
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: January 24, 2013 Released: January 24, 2013
By the Resident Agent, San Juan Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Centro Colegial Cristiano, Inc. (Centro Colegial), licensee of FM
Station WVID in Anasco, Puerto Rico, apparently willfully and
repeatedly violated Sections 11.35(a), 11.51(m)(1), and 11.52(e)(1)
of the Commission's rules (Rules), by failing to maintain fully
operational emergency alert system (EAS) equipment when the Station
was unattended. We conclude that Centro Colegial is apparently liable
for a forfeiture in the amount of eight thousand dollars ($8,000).
II. BACKGROUND
2. On April 30, 2012, in response to a complaint, agents from the
Enforcement Bureau's San Juan Office (San Juan Office) inspected the
main studio for Station WVID and observed that the Station's EAS
equipment, although operational, was unable to automatically interrupt
programming to transmit an EAS message due to the way it was
installed. The director for the station admitted and demonstrated to
the agents that the EAS equipment was incapable of transmitting an EAS
message without a person manually reducing the on-air programming
volume down to zero or mute. The director did not know how long the
EAS equipment had been in this condition, but he was certain that it
had required manual intervention since he became director in September
2011. The director also informed the agents that the Station
broadcasts programming 24 hours a day, is manned daily from 6 A.M. to
7 P.M., and is unattended daily from 7 P.M. to 6 A.M. and during lunch
and other breaks.
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 Maintain Operational Emergency Alert System
4. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source. The EAS enables
the President and state and local governments to provide immediate
communications and information to the general public. State and local
area plans identify local primary sources responsible for coordinating
carriage of common emergency messages from the sources such as the
National Weather Service or local emergency management officials.
Required monthly and weekly tests originate from EAS Local or State
Primary sources and must be retransmitted by the participating
station. As the nation's emergency warning system, the EAS is critical
to public safety, and we recognize the vital role that broadcasters
play in ensuring its success. The Commission takes seriously any
violations of the Rules implementing the EAS and expects full
compliance from its licensees.
5. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders, and attention signal
generating and receiving equipment are installed and operational so
that the monitoring and transmitting functions are available during
the times the station is in operation. Sections 11.51(m) and 11.52(e)
of the Rules also require broadcast station licensees to receive,
interrupt normal programming, and transmit certain EAS messages. When
facilities are unattended, Sections 11.51(m)(1) and 11.52(e)(1) of the
Rules require licensees to employ automatic systems to interrupt
programming and transmit certain EAS messages.
6. On April 30, 2012, agents from the San Juan Office observed that
Station WVID's EAS equipment was unable to interrupt programming and
transmit automatically an EAS message. Station WVID broadcasts
programming 24 hours a day, but is not staffed 24 hours a day. When
unattended, Station WVID was unable to interrupt normal programming or
transmit EAS messages. Accordingly, the transmitting function for
Station WVID's EAS equipment was not fully operational, when the
Station was unattended. According to Station management, the EAS
equipment had been unable to interrupt programming and transmit EAS
messages automatically since sometime in September 2011. Based on the
evidence before us, we find that Centro Colegial apparently willfully
and repeatedly violated Sections 11.35(a), 11.51(m)(1), and
11.52(e)(1) of the Rules by failing to maintain fully operational EAS
equipment at Station WVID when the station was operational and
unattended.
B. Proposed Forfeiture Amount and Reporting Requirement
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failure to maintain
the EAS equipment operational readiness is $8,000. 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 conclude that Centro Colegial is apparently liable
for a total forfeiture in the amount of $8,000.
8. We also direct Centro Colegial to submit a written statement signed
under penalty of perjury, pursuant to Section 1.16 of the Rules, by an
officer or director of Centro Colegial, stating that its EAS equipment
is fully operational when Station WVID is unattended and that it
otherwise complies with the Commission's EAS rules. This statement
must be provided to the San Juan Office at the address listed in
paragraph 11 below, within thirty (30) calendar days of the release
date of this NAL.
IV. ORDERING CLAUSES
9. 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, Centro Colegial
Cristiano, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violation of Sections 11.35(a), 11.51(m)(1), and 11.52(e)(1) of the
Commission's rules.
10. 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,
Centro Colegial Cristiano, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
11. IT IS FURTHER ORDERED that Centro Colegial Cristiano, Inc. SHALL
SUBMIT a written statement, as described in paragraph 8, 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, US Federal Building Room 762, San Juan, PR
00918-1731. Centro Colegial Cristiano, Inc. shall also e-mail the
written statement to SCR-Response@fcc.gov.
12. 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. Centro Colegial Cristiano, 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.
13. 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.
14. 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, US Federal Building Room 762, San
Juan, PR 00918-1731and include the NAL/Acct. No. referenced in the
caption. Centro Colegial Cristiano, Inc. also shall e-mail the written
response to SCR-Response@fcc.gov.
15. 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.
16. 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 Centro Colegial Cristiano,
Inc. at POB 3420, Mayaguez, PR 00681-3420.
FEDERAL COMMUNICATIONS COMMISSION
Reuben Jusino
Resident Agent
San Juan Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 11.35(a), 11.51(m)(1), 11.52(e)(1).
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:S: 11.11, 11.41.
47 C.F.R. S:S: 11.1, 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
sources. 47 C.F.R. S: 11.21.
47 C.F.R. S: 11.35(a).
See 47 C.F.R. S:S: 11.51(m), 11.52(e).
See 47 C.F.R. S:S: 11.51(m)(1), 11.52(e)(1).
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,
11.35(a), 11.51(m)(1), 11.52(e)(1).
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 13-83
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Federal Communications Commission DA 13-83