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                                       .

                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Playa Del Sol Broadcasters Licensee of Station K238AK
   Palm Desert, California ) ) ) ) ) ) File Number: EB-08-SD-0088 NAL/Acct.
   No.: 200832940003 FRN: 0004256426




                                ORDER ON REVIEW

   Adopted: February 28, 2013 Released: March 1, 2013

   By the Commission:

   I. INTRODUCTION

    1. In this Order on Review (Order on Review), we deny the Application for
       Review^ filed by Playa Del Sol Broadcasters (Playa Del Sol), the
       licensee of Station K238AK, Palm Desert, California, pursuant to
       Section 1.115 of the Commission's Rules (Rules). Playa Del Sol seeks
       review of the Forfeiture Order issued by the Western Region,
       Enforcement Bureau (Bureau)^ that assessed a $4,000 forfeiture against
       the licensee for its willful and repeated violation of Section
       74.1236(c) of the Rules.^ The noted violation concerned unauthorized
       emissions from Station K238AK^ which resulted from Playa Del Sol's
       failure to properly attenuate Station K238AK's emissions in the VHF
       aviation band.^ For the reasons stated below, we affirm the Bureau's
       Forfeiture Order.

   II. BACKGROUND

    2. Playa Del Sol uses translator Station K238AK to rebroadcast Station
       KRCK-FM, which is a full power FM broadcast station licensed to Playa
       Del Sol in Mecca, California. On March 12, 2008, the San Diego
       District Office (San Diego Office) of the Bureau received a complaint
       from the Riverside County Sheriff's Department of interference to
       their helicopters when flying in the Indian Wells, California area.^
       In response, on March 13, 2008, an agent from the San Diego Office
       traveled to the location during normal business hours and detected the
       audio of Station KRCK-FM on three separate frequencies in the VHF
       aviation band.^ The agent determined that the three signals emanated
       from the studio of Station KRCK-FM, which is collocated with Station
       K238AK's transmitter.^ Field strength measurements made by the agent
       on each of the three signals in the VHF aviation band showed that all
       three were attenuated less than 60 dB from 95.5 MHz, the carrier
       signal of Station K238AK.^ The next day, on March 14, 2008, the San
       Diego agent returned to the site during normal business hours and
       conducted another set of measurements with similar results.^ During
       that inspection the agent requested that the translator station be
       taken off the air and determined that whenever the Station K238AK
       transmitter was switched off, all three signals previously measured in
       the aviation band went off the air.^

    3. Playa Del Sol does not dispute any of the above facts. Nor does it
       deny that it operated Station K238AK on March 12, March 13, and March
       14, 2008, or that Station K238AK was the source of the signals
       measured by the San Diego agent on 109.5 MHz, 122.2 MHz, and 136.1 MHz
       on March 13 and March 14, or that those signals violated the
       requirements of Section 74.1236(c) of the Rules.  Instead, Playa Del
       Sol argues that, despite these facts, no forfeiture should be imposed
       against it because its violation of Section 74.1236(c) was not
       repeated or willful.^

   III. DISCUSSION

    4. In this Order on Review, we deny Playa Del Sol's Application for
       Review and affirm the Bureau's Forfeiture Order. The forfeiture amount
       in this case was assessed in accordance with section 503(b)(2)(E) of
       the Communications Act of 1934, as amended (Act).^ That provision
       states that any person who 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 503's legislative history states that the definitions of "willful"
   and "repeated" recited in section 312(f) of the Act also apply to Section
   503^ and the Commission has so interpreted the terms.^ Thus, Section 503's
   use of the term "willful" means the "conscious and deliberate commission
   or omission of [any] act, irrespective of any intent to violate" the law,^
   and the term "repeated" means "the commission or omission of such act more
   than once or, if such commission is continuous, for more than one day."^

    5. Playa Del Sol denies that its violation of Section 74.1236(c) of the
       Rules was repeated. We disagree. Each of the three unauthorized
       emissions by Station K238AK - which Playa Del Sol does not dispute -
       constitutes a separate violation. Specifically, the FCC agent's field
       measurements found each unauthorized emission was attenuated less than
       60 dB from 95.5 MHz and therefore, each of the three unauthorized
       emissions was a separate violation of Section 74.1236(c).
       Consequently, Playa Del Sol violated Section 74.1236(c) three times,
       or repeatedly, as the commission of the violation occurred more than
       once. In addition, the agent's direct evidence of the field
       measurements, obtained on each of the three spurs on two separate days
       during normal business hours, confirmed and verified the Riverside
       County Sheriff's Department's complaint of ongoing interference over
       several weeks to multiple aviation frequencies.^ Consequently, Playa
       Del Sol's violation was also repeated as each of the three violations
       also occurred on successive days.^ Accordingly, we affirm the Bureau's
       finding that the violation was repeated.^

    6. Second, Playa Del Sol argues that its violations were not "willful"
       because it did not definitely know that its transmitter was the source
       of the unauthorized emissions until the San Diego agent conclusively
       established this fact through testing on March 14, 2008.^ As noted
       above, the legislative history to our forfeiture authority defines
       "willful" as "the licensee knew he was doing the act in question,
       irrespective of any intent to violate the law."^ There is no dispute
       that Playa Del Sol consciously and deliberately operated Station
       K238AK and, irrespective of any intent by the licensee to violate the
       rules, that Station K238AK produced three emissions more than 600 kHz
       outside its assigned channel of 95.5 MHz that were attenuated less
       than 60 dB. Consequently, the Bureau correctly determined that Playa
       Del Sol's violation was willful, as defined in Section 312(f)(1) of
       the Act and for purposes of Section 503(b).^ Therefore, upon review of
       the Application for Review  and the entire record herein, we deny
       Playa Del Sol's application and affirm the Bureau's Forfeiture Order.

   IV. ORDERING CLAUSES

    7. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the
       Commission's Rules,^ that the Application for Review  filed by Playa
       Del Sol Broadcasters  IS DENIED and the Forfeiture Order  IS AFFIRMED.

    8. IT IS FURTHER ORDERED that, pursuant to Section 1.102(b)(3) of the
       Commission's Rules,^ Playa Del Sol Broadcaster's request to stay the
       effect of the Forfeiture Order IS DISMISSED AS MOOT.

    9. Payment of the forfeiture ordered by the Bureau and affirmed by this
       Order on Review 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 Order on Review.^  If the forfeiture is not paid
       within the period specified, the case may be pursued by the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^ Playa Del Sol shall send electronic
       notification of payment to [1]WR-Response@fcc.gov on the date said
       payment is made.

   10. 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 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, ARINQUIRIES@fcc.gov.

   12. IT IS FURTHER ORDERED that this Order on Review shall be sent by
       regular mail and by certified mail, return receipt requested, to Playa
       Del Sol Broadcasters at 73-733 Fred Waring Drive, Suite 201, Palm
       Desert, California, 92260, and Bruce A. Olcott, its counsel of record,
       at Squire Sanders, Suite 500, 1201 Pennsylvania Avenue, N.W.,
       Washington, D.C., 20004.

   FEDERAL COMMUNICATIONS COMMISSION

   Marlene H. Dortch

   Secretary

   ^ Application for Review, Playa Del Sol Broadcasters, EB-08-SD-0088, filed
   August 17, 2009 ("Application for Review").

   ^  Playa Del Sol Broadcasters, Forfeiture Order, 24 FCC Rcd 9142 (Enf.
   Bur. Western Region 2009) ("Forfeiture Order"), aff'g Notice of Apparent
   Liability for Forfeiture, NAL/Acct. No. 200832940003 (Enf. Bur., Western
   Region, San Diego Office, rel. July 31, 2008) ("NAL").

   ^ 47 C.F.R. S 74.1236(c). Section 74.1236(c)  of the Rules requires in
   relevant part that the power of emissions appearing outside the assigned
   channel shall be attenuated below the total power of the emission as
   follows:

   Distance of emission from center frequency Minimum attenuation below
   unmodulated carrier

   Over 600 kHz...................................................60 dB

   ^ Specifically, Playa Del Sol failed to ensure that emissions appearing
   outside the assigned channel greater than 600 kHz from the center
   frequency had a minimum attenuation below the unmodulated carrier of 60
   dB. Id.

   ^ Playa Del Sol requests that we stay the effect of the Forfeiture Order
   during the pendency of the Application for Review  pursuant to Section
   1.102(b)(3) of the Rules, 47 C.F.R. S 1.102(b)(3). As this Order on Review
   resolves the Application for Review, we dismiss this request as moot.

   ^ The original complaint advised the FCC on March 12, 2008, that the
   interference to multiple aviation frequencies had been ongoing for several
   weeks and getting worse.

   ^ Specifically, the agent detected unauthorized emissions containing the
   audio of Station KRCK-FM on aviation frequencies at 109.5 MHz, 122.2 MHz,
   and 136.1 MHz.

   ^ Forfeiture Order, 24 FCC Rcd at 9142.

   ^ Id. at 9142 - 9143. The agent determined that the 109.5 MHz signal was
   attenuated 18.0 dB from the carrier of Station K238AK, the 122.2 MHz
   signal was attenuated 30.8 dB from the carrier of Station K238AK and the
   136.1 MHz signal was attenuated 20.9 dB from the carrier of Station
   K238AK.

   ^ Id. at 9143. The results of those measurements are as follows: the 109.5
   MHz signal was attenuated 19.8 dB from the carrier of Station K238AK, the
   122.2 MHz signal was attenuated 23.4 dB from the carrier of Station K238AK
   and the 136.1 MHz signal was attenuated 18.0 dB from the carrier of
   Station K238AK.

   ^ NAL at para. 6; Forfeiture Order, 24 FCC Rcd at 9144.

   ^ Application for Review  at 2-5.

   ^ 47 U.S.C. S 503(b)(2)(E). See also 47 C.F.R. S 1.80 (b)(4); 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), recon. denied, 15 FCC
   Rcd 303 (1999).

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

   ^ 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., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P10 (2001) (proposing a
   forfeiture for, inter alia, a cable television operator's repeated signal
   leakage); Southern California Broadcasting Co., Memorandum Opinion and
   Order, 6 FCC Rcd 4387, 4388 (1991) (applying Section 312(f)(1) definition
   of "willful" to Section 503 forfeiture), recons. denied, 7 FCC Rcd 3454
   (1992).

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

   ^ 47 U.S.C. S 312(f)(2).

   ^ Playa Del Sol admitted in its Application for Review that
   post-inspection repairs to the translator amplifier revealed "spurious
   emissions and a power supply failure." Application for Review at 4.

   ^ See, e.g., In the Matter of St. George Cable, Inc., Notice of Apparent
   Liability for Forfeiture, 27 FCC Rcd 11447 P 21 (2012) (treating each of
   the four days a cable operator failed to comply with the Commission's
   cable signal leakage limit as separate violations).

   ^ Accordingly, we reject Playa Del Sol's assertion that its violations had
   to be continuous to be considered "repeated." See Application for Review
   at 2-3. Whether or not the unauthorized emissions occurred continuously is
   not relevant to our determination, given that they occurred on separate
   days. See also 47 U.S.C. S 312(f)(2); A-O Broadcasting Corp., Forfeiture
   Order, 31 Communications Reg. (P&F) 411 P 12 (2003) (finding that
   violations of EAS, main studio, and technical rules were "repeated"
   because they occurred on more than one day or continued for more than one
   day).

   ^ Application for Review at 4.

   ^ See supra note 14.

   ^ 47 U.S.C. SS 312(f)(1), 503(b). Furthermore, as noted above, the Bureau
   not only correctly determined that Playa Del Sol willfully violated
   Section 74.1236(c), but also properly found that the licensee repeatedly
   violated that rule. Therefore, a finding of willfulness was not essential
   for imposition of the forfeiture. See, e.g., Infinity Broadcasting Corp.,
   Order on Review, 24 FCC Rcd 4270 (2009).

   ^ 47 C.F.R. S 1.115(g).

   ^ 47 C.F.R. S 1.102(b)(3).

   ^ 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 [2]http://www.fcc.gov/Forms/Form159/159.pdf.

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

   (Continued from previous page)

   (continued . . . )

   Federal Communications Commission FCC 13-28

   1

                                       2

   Federal Communications Commission FCC 13-28

References

   Visible links
   1. mailto:WR-Response@fcc.gov
   2. http://www.fcc.gov/Forms/Form159/159.pdf