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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of The Catholic, Apostolic & Roman Catholic Church in Puerto
Rico Licensee of Station WKVM-AM San Juan, PR Owner of Antenna Structure
Nos.: 1011472, 1011473, 1011474 ) ) ) ) ) ) ) ) ) ) File No.:
EB-FIELDSCR-13-00007724 NAL/Acct. No.: 201432680001 FRN: 0005815618
Facility ID No.: 8096
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 17, 2014 Released: January 17, 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 The Catholic, Apostolic & Roman Catholic Church in Puerto Rico
(Church), licensee of AM Station WKVM (Station) located in San Juan
Puerto Rico, apparently willfully and repeatedly violated Section
73.49 of the Commission's rules (Rules),^ by failing to have an
effective locked fence or other enclosure around its antenna
structures. We conclude that the Church is apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. On April 3 and 8, 2013, an agent from the Enforcement Bureau's San
Juan Office (San Juan Office) inspected the Station's three antenna
structures,^ while the Station was in operation and observed that the
individual fences surrounding each structure were missing several
pickets, which allowed access to each of the structures. In addition,
the individual fence surrounding one of the structures had a portion
of the fence on the ground and an open gate. Finally, the agent
observed that the perimeter fence surrounding the property was not
locked or intact, as one section lay on the ground.
3. On April 16, 2013, the San Juan Office issued a Notice of Violation
(NOV) to the Church regarding the Station's antenna structure fences.^
In response, the Church stated that prior to September/October 2012,
the individual fences around the three antenna structures were intact
and that the fences were damaged in the fall of 2012 by heavy storms.^
Moreover, the Church stated that the perimeter property fence gate was
damaged, by an unknown party, in the January/February 2013 timeframe.^
The Church claimed that it was delayed in making repairs due to the
recent weather. Finally, the Church stated it completed the repairs to
the individual antenna structure fences and was scheduled to repair
the perimeter gate the week of May 6, 2013.^
III. DISCUSSION
4. 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 Enclose the Antenna Structure Within an Effective Locked
Fence or Other Enclosure
5. Section 73.49 of the Rules states that antenna structures "having
radio frequency potential at the base . . . must be enclosed within
effective locked fences or other enclosures."^ Individual fences need
not be installed if the antenna structures are contained within a
protective property fence.^ The Station's three antenna structures
have radio frequency potential at their bases.^ On April 3, 2013 and
again on April 8, 2013, an agent from the San Juan Office observed
that the Station's three antenna structures were not enclosed within
effective locked fences. The agent observed that all three of the
individual fences were missing pickets, which allowed easy access to
the bases. Moreover, one of the individual fences had a portion on the
ground and an open gate. The agent also observed that the perimeter
property fence was unlocked and had a section that had fallen down.
The Church admitted that the individual fences and perimeter property
fence were damaged in the fall of 2012 and early 2013, respectively.
Therefore, based on the evidence before us, we find that the Church
apparently willfully and repeatedly violated Section 73.49 of the
Rules by failing to have an effective locked fence or other enclosure
around the bases of its antenna structures.
B. Proposed Forfeiture
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for an AM tower fencing
violation is $7,000.^ 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 the
Church is apparently liable for a total forfeiture in the amount of
$7,000.
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, The Catholic,
Apostolic & Roman Catholic Church in Puerto Rico is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand dollars ($7,000) for violation of Section 73.49 of the
Commission's 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, The
Catholic, Apostolic & Roman Catholic Church in Puerto Rico SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
9. 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. The Catholic, Apostolic & Roman Catholic
Church in Puerto Rico 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.
10. 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.
11. 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. Steckline Communications, Inc. also shall e-mail the written
response to SCR-Response@fcc.gov.
12. 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.
13. 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 The Catholic, Apostolic & Roman
Catholic Church in Puerto Rico at POB 9021967 San Juan, PR 00902-1967,
and to its attorneys, Francisco R. Montero & Robert J. Schill at
Fletcher, Heald and Hildreth, 1300 North 17th Street, 11th Floor,
Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Reuben Jusino
Resident Agent
San Juan Office
South Central Region
Enforcement Bureau
^ 47 C.F.R. S 73.49.
^ The Church owns antenna structure numbers 1011472, 1011473, and 1011474.
^3 The Catholic, Apostolic & Roman Catholic Church in Puerto Rico, Notice
of Violation, V326820130003 (Apr. 16, 2013) (on file in
EB-FIELDSCR-13-00007724) (NOV).
^ Letter from Francisco R. Montero, counsel for The Catholic, Apostolic &
Roman Church in Puerto Rico, to the San Juan Office, Enforcement Bureau at
1 (May 3, 2013) (on file in EB-FIELDSCR-13-00007724) (NOV Response).
^ Id.
^ Id. at 2. The Church provided photographs of the repairs to the
individual base fences.
^ 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 C.F.R. S 73.49.
^ Id.
^ See License File No. BR-20050214AAU.
^ 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. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
73.49.
^ 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).
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Federal Communications Commission DA 14-59
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Federal Communications Commission DA 14-59