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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Renacer Broadcasters Corporation Owner of Antenna
Structure Number 1230863 Maricao, PR ) ) ) ) ) ) ) File No.: EB-11-SJ-0059
NAL/Acct. No.: 201232680006 FRN: 0009672916
FORFEITURE ORDER
Adopted: January 22, 2014 Released: January 22, 2014
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of twenty thousand dollars ($20,000) to Renacer Broadcasters
Corporation (Renacer), owner of antenna structure number 1230863 (the
Antenna Structure) in Maricao, Puerto Rico, for its willful and
repeated violation of Section 303(q) of the Communications Act of
1934, as amended (Act) and Section 17.21 of the Commission's rules
(Rules).^ The noted violation involved Renacer's failure to paint and
light the Antenna Structure.
II. BACKGROUND
2. On December 1, and again on December 8, 2011, in response to a
complaint, an agent from the Enforcement Bureau's San Juan Office (San
Juan Office) inspected the Antenna Structure and observed that the
structure had never been painted and had no lights installed. On
August 1, 2012, the San Juan Office issued a Notice of Apparent
Liability for Forfeiture and Order (NAL) ^ ^ to Renacer for its
apparent failure to paint and light the Antenna Structure.
3. Renacer submitted a response to the NAL^ requesting cancellation or
reduction of the proposed $20,000 forfeiture because Renacer
participated in the Puerto Rico Radio Broadcasters Association's
Alternative Broadcast Inspection Program (ABIP)^ and passed
inspections in 2005 and 2008.^ Renacer asserts that it "reasonably"
relied upon the certificates of compliance that it received following
the two ABIP inspections and assumed that its Antenna Structure was in
compliance with the Rules.^ Renacer also questions the appropriateness
of the Bureau's upward adjustment of the forfeiture because Renacer
claims it did not consciously or deliberately violate the Rules.^
III. DISCUSSION
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
Forfeiture Policy Statement.^ In examining Renacer's response under
Section 503(b)(2)(E) of the Act, the Commission must take into account
the nature, circumstances, extent, and gravity of the violation 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.^ As discussed below, we have considered Renacer's
response in light of these statutory factors, and find that
cancellation or reduction of the forfeiture is not warranted.
5. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission.^ Section 17.21(a) of the Rules states that
"[a]ntenna structures shall be painted and lighted when: (a) they
exceed 60.96 meters (200 feet) in height above the ground or they
require special aeronautical study."^ The Antenna Structure is 90
meters above the ground in height and is required to be painted and
lighted.^ It is undisputed that the Antenna Structure was built in
2001 and had no lights installed until the summer of 2012.^ Renacer's
belief that it was in compliance with the Rules is irrelevant with
respect to the willfulness of the violation. 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.^ Renacer constructed the Antenna Structure and did not paint or
light it. Thus, its violations were willful. Based on the evidence
before us, we find that Renacer willfully and repeatedly violated
Section 303(q) of the Act and Section 17.21 of the Rules by failing to
paint and light the Antenna Structure as required.
6. Nevertheless, Renacer requests cancellation or reduction of the
proposed forfeiture, because it asserts that it "consciously and
deliberately sought to comply with the FCC rules at all times and
brought an FCC-approved inspector in to ensure compliance had been
achieved."^ Renacer claims that passing two ABIP inspections in 2005
and 2008 and receiving certificates of compliance gave it confidence
that "it was in complete FCC compliance" and that it would be
"duplicitous . . . to penalize a tower owner and station license for
reasonable reliance on the results of inspections conducted under that
program."^ Renacer further claims that because it made "no material
changes to the station or Antenna Structure between the completion of
construction and the [April 6,] 2005 inspection," the licensee was
"confident of its compliance from the inception of licensed station
operations in 2002"^ until May 2011,^ and that therefore the
forfeiture should not have been upwardly adjusted by 100 percent.
7. Under the ABIP, a private party, usually a state broadcast
association, enters into an agreement with the Enforcement Bureau to
arrange inspections of participating broadcast stations to determine
compliance with FCC regulations.^ ABIP inspectors are required to
conduct a standard FCC Enforcement Bureau full-station inspection and
the association or private inspector must then notify the local FCC
District Office or Resident Agent Office, in writing, of those
stations that pass the ABIP inspection and have received a Certificate
of Compliance, which is then valid for three years.^ The Commission
does not select the inspectors conducting the ABIP inspections.^
Moreover, under the PR ABIP Agreement, the Bureau "may conduct an
inspection of an ABIP Station if such inspection (i) relates to tower
safety issues, [or] (ii) was initiated by a complaint against the
station. . . ."^ The Bureau may, at its sole discretion, take
enforcement action for any noncompliance discovered during these
inspections, and participation in the ABIP does not shield licensees
from liability for such noncompliance.^
8. We are not persuaded by Renacer's claim that it had no reasonable
basis to believe it was in noncompliance. As the sole owner of the
Antenna Structure, Renacer obtained an FAA study for the Antenna
Structure on April 16, 2001, and registered it in the Commission's
Antenna Structure Registration database on November 19, 2001 as being
90 meters in height and requiring painting and lighting.^ As noted
earlier, Commission rules clearly require such structures to be
appropriately painted and lit.^ Yet Renacer took no action to paint or
light the Antenna Structure from its construction until release of the
NAL in 2012. Although an ABIP inspector may have mistakenly informed
Renacer that it was in compliance with the Commission's antenna
structure painting and lighting requirements at the time of the ABIP
inspections in 2005 and 2008, Renacer was clearly on notice of its
obligations when it first registered the Antenna Structure, years
before those inspections. As such, it had no reasonable basis upon
which to believe it was in compliance and remains responsible for any
noncompliance as the owner of the structure.
9. Based on our review of the record in this case, we find no grounds to
cancel or reduce the forfeiture due to Renacer's participation in the
ABIP. Even if we considered Renacer's reliance on the ABIP inspector's
findings as evidence of good faith, that reliance would be outweighed
by the egregiousness of the violation, which began more than three
years before the first ABIP inspection,^ lasted over 10 years in
total, and was cured only after issuance of the NAL. The Bureau has
previously increased forfeitures by 100 percent due to the significant
duration of the violation.^ Thus, we find the $20,000 forfeiture to be
appropriate here.
IV. ORDERING CLAUSES
10. 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(f)(4) of the Commission's rules, Renacer
Broadcasters Corporation IS LIABLE FOR A MONETARY FORFEITURE in the
amount of twenty thousand dollars ($20,000) for violation of Section
303(q) of the Act and Section 17.21 of the Commission's rules.^
11. Payment of the forfeiture 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 Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Renacer Broadcasters Corporation shall
send electronic notification of payment to SCR-Response@fcc.gov on the
date said payment is made. 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.
12. 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.
13. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class and Certified Mail, Return Receipt Requested,
to Renacer Broadcasters Corporation at PO Box 174, Lajas, PR 00667,
and to its counsel, Francisco Montero, Fletcher, Heald & Hildreth,
PLC, 1300 North 17^th Street, 11^th Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director
South Central Region
Enforcement Bureau
^ 47 U.S.C. S 303(q); 47 C.F.R. S 17.21.
^ Renacer Broadcasters Corporation, Notice of Apparent Liability for
Forfeiture and Order, 27 FCC Rcd 8900 (Enf. Bur. 2012). A comprehensive
recitation of the facts and history of this case can be found in the NAL
and is incorporated herein by reference.
^ Letter from Francisco Montero, counsel for Renacer Broadcasters
Corporation, Fletcher, Heald & Hildreth, PLC, to San Juan Office,
Enforcement Bureau, at 2-3 (Aug. 31, 2012) (on file in EB-11-SJ-0059) (NAL
Response).
^ See Agreement for State Broadcasters Association Sponsored Alternative
Broadcast Inspection Program between Puerto Rico Radio Broadcasters
Association and the Enforcement Bureau (Aug. 15, 2003) (on file in
EB-11-SJ-0059) (PR ABIP Agreement).
^ NAL Response at 2-3.
^ Id.
^ Id. at 4.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. S 17.21(a).
^ See Antenna Structure Registration database for antenna structure number
1230863. See also Determination of No Hazard from the Federal Aviation
Administration (FAA) requiring painting and lighting, FAA Study
01-ASO-0793-OE (Apr. 16, 2001). In a determination of "no hazard," the FAA
specifies the painting and lighting requirements it believes necessary to
ensure that the antenna structure does not pose a hazard to air traffic.
^ See NAL Response at 1 (confirming structure constructed in 2001).
Renacer obtained a new Determination of No Hazard from the FAA allowing
daytime lighting for the Antenna Structure in lieu of paint on June 22,
2012. See FAA Study 2012-ASO-4855-OE.
^ 47 U.S.C. S 312(f)(1). Section 312(f)(1) of the Act also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act. 47 U.S.C. S 503(b).
^ NAL Response at 4.
^ NAL Response at 3.
^ NAL Response at 3.
^ Renacer passed an ABIP inspection on May 8, 2008, and ABIP Certificates
of Compliance remain valid for a period of three years. PR ABIP Agreement
at 4. Thus, Renacer asserts it thought it was in compliance until the end
of its 2008 ABIP Certificate of Compliance in May 2011.
^ PR ABIP Agreement at 1.
^ PR ABIP Agreement at 4. An agent from the San Juan Office did sign
certificates of compliance for Renacer. However, these certificates merely
acknowledged that, based on information received from the ABIP inspector,
Renacer had passed an ABIP inspection. As the agent did not participate in
the ABIP inspections, his signatures did not constitute a finding that
Renacer was in compliance with the Rules.
^ The Puerto Rico Radio Broadcasters Association "shall select one or more
persons whom [sic] it believes in good faith has the requisite competence,
experience, training and integrity to perform properly the duties as
inspector under the ABIP." PR ABIP Agreement at 2.
^ PR ABIP Agreement at 4.
^ Id. See also Cumulus Licensing Corporation, Forfeiture Order, 18 FCC Rcd
21234 (Enf. Bur. 2003) (upholding forfeiture and noting Field Offices
expressly reserve the right to inspect a station during the period covered
by an ABIP certificate of compliance on the basis of, among other things,
a complaint or a targeted compliance program).
^ See supra note 14.
^ See supra note 13.
^ The Antenna Structure was constructed in the 2001-2002 timeframe. See
NAL, 27 FCC Rcd at 8901, para. 4.
^ See, e.g., Mt. Rushmore Broadcasting, Inc., Notice of Apparent Liability
for Forfeiture, 27 FCC Rcd 8263 (Enf. Bur. 2012) (imposed upward
adjustment of $4,000 for violation with base forfeiture of $4,000 due to
the ten-year duration of the violation); Mt. Rushmore Broadcasting, Inc.,
Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 8273 (Enf. Bur.
2012) (imposed upward adjustment of $10,000 for violation with base
forfeiture of $10,000 due to the eleven-year duration of the violation).
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.21.
^ 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 http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 14-67
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Federal Communications Commission DA 14-67