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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Liberty Cablevision of Puerto Rico, Inc. Owner of Antenna
Structure No. 1011909 Vega Baja, Puerto Rico ) ) ) ) ) ) ) File No.:
EB-FIELDSCR-13-00010718 NAL/Acct. No.: 201432680003 FRN: 0004984753
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 19, 2014 Released: March 19, 2014
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 Liberty Cablevision of Puerto Rico, Inc. (Liberty), owner of
antenna structure number 1011909 (the Antenna Structure) located in
Vega Baja, Puerto Rico, apparently willfully and repeatedly violated
Section 303(q) of the Communications Act of 1934, as amended (Act),
and Sections 17.47(a) and 17.51(a) of the Commission's rules (Rules)^
by failing to exhibit required antenna structure lighting and monitor
the Antenna Structure's lights. We conclude that Liberty is
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. According to the ASR database, the Antenna Structure stands 61.6
meters in height above ground level and is required to be lighted with
red obstruction lighting.^ On August 26 and 28, 2013, agents from the
San Juan Office observed the Antenna Structure at night and found it
was unlit.^ On August 29, 2013, an agent from the San Juan Office
contacted Liberty for more information, but it was unaware of the
lighting outage.
1. On September 9, 2013, the San Juan Office issued a Notice of Violation
(NOV) to Liberty concerning its failure to exhibit the required
antenna structure lighting.^ In its response to the NOV,^ Liberty
stated that the lighting may have been damaged in a recent storm and
that it had repaired the Antenna Structure lighting. Liberty also
stated that it established a protocol to monitor the Antenna Structure
lights on a daily basis.^
III. DISCUSSION
2. 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. Failure to Monitor Antenna Structure Lighting and Exhibit Required
Obstruction Lighting on the Antenna Structure
3. Section 303(q) of the Act states that antenna structure owners shall
maintain the lighting of antenna structures as prescribed by the
Commission.^ Section 17.47(a)(1) of the Rules requires antenna
structure owners to observe the lights on antenna structures visually
once every 24 hours or alternatively to install and properly maintain
an automatic alarm system designed to detect any failure of such
lights and to provide indication of such failure to the owner.^
Section 17.51(a) of the Rules states that "[a]ll red obstruction
lighting shall be exhibited from sunset until sunrise unless otherwise
specified."^
4. The evidence in this case is sufficient to establish that Liberty
violated Section 303(q) of the Act and Sections 17.47(a) and 17.51(a)
of the Rules. The Antenna Structure is 61.6 meters above ground in
overall height and is required to be lit with red obstruction lighting
at night.^ On August 26 and August 28, 2013, agents from the San Juan
Office observed that the Antenna Structure was not lighted at night.
On August 29, 2013, Liberty admitted that it was unaware of the
lighting outage. In response to the NOV, Liberty stated that it
repaired the Antenna Structure lighting and established a protocol to
monitor the Antenna Structure lights on a daily basis.^ Because it was
unaware of the lighting outage on August 29, 2013 and stated in
response to the NOV that it established a process to monitor the
structure lights visually, we conclude Liberty was not monitoring the
Antenna Structure lights as required prior to August 29, 2013.
Therefore, based on the evidence before us, we find that Liberty
apparently willfully and repeatedly violated Section 303(q) of the Act
and Sections 17.47(a) and 17.51(a) of the Rules by failing to monitor
the Antenna Structure lighting and exhibit the required red
obstruction lighting on the Antenna Structure.
B. Proposed Forfeiture
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to comply
with prescribed lighting requirements 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 conclude that Liberty is apparently liable for a
total forfeiture in the amount of $10,000.
IV. ORDERING CLAUSES
6. 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, Liberty Cablevision
of Puerto Rico, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of ten thousand dollars ($10,000) for
violation of Section 303(q) of the Act and Sections 17.47(a) and
17.51(a) of the Commission's rules.^
7. 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, Liberty
Cablevision of Puerto Rico, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
8. 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. Liberty Cablevision of Puerto Rico, Inc.
shall 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.
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, ARINQUIRIES@fcc.gov.
10. 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 00918-1731, and include the NAL/Acct. No. referenced in the
caption. Liberty Cablevision of Puerto, Inc. also shall e-mail the
written response to SCR-Response@fcc.gov.
11. 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 principles (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.
12. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and First Class Mail to Liberty Cablevision of Puerto Rico,
Inc. at POB 192296 San Juan, PR 00919-2296.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent
San Juan Office
South Central Region
Enforcement Bureau
^ 47 U.S.C. S 303; 47 C.F.R. SS 17.47(a), 17.51.
^ See Antenna Structure Registration database for antenna structure number
1045635; see also 47 C.F.R. S 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted).
^ On August 27, 2013, an agent from the San Juan Office contacted the
Federal Aviation Administration and learned that no Notice to Airmen
(NOTAM) had been issued for the Antenna Structure. See 47 C.F.R. S 17.48
(requiring antenna structure owners to notify the FAA immediately of any
known outages of tower lighting lasting more than 30 minutes). The agent
informed the FAA of the lighting outage and the FAA issued a NOTAM for the
Antenna Structure on August 27, 2013.
^ See Liberty Cablevision of Puerto Rico, Inc., Notice of Violation,
V201332680007 (Sept. 9, 2013).
^ See Letter from John Conrad, Counsel for Liberty Cablevision of Puerto
Rico, Inc., to San Juan Office (Sept. 30, 2013) (on file in
EB-FIELDSCR-13-00010718) (NOV Response).
^ Id.
^ 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., 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 303(q).
^ 47 C.F.R. S 17.47(a)(a).
^ 47 C.F.R. S 17.51(a).
^ See supra note 2.
^ NOV Response at 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 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.47(a), 17.51(a).
^ 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 14-359
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Federal Communications Commission DA 14-359