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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Onda Mexicana Radio Group, Inc.
Licensee of AM station WWFL,
Clermont, FL
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File No.: EB-FIELDSCR-12-00004836
NAL/Acct. No.: 201432700004
Facility ID No.: 33215
MEMORANDUM OPINION AND ORDER
Adopted: January 6, 2015 Released: January 6, 2015
By the Deputy Chief, Enforcement Bureau:
I. INTRODUCTION
* We grant in part and deny in part a request by Onda Mexicana Radio Group, Inc. (Onda Mexicana) seeking reconsideration of an $8,000 penalty issued against it by the Enforcement Bureau (Bureau) for failing to fully respond to a Bureau-issued Notice of Violation (NOV). Onda Mexicana requests reduction or cancellation of the penalty based on its purported good faith or voluntary disclosure of the violations, inability to pay the penalty, and history of compliance with the Commission's rules. We reviewed Onda Mexicana's request and decline to reduce or cancel the forfeiture based on its good faith/voluntary disclosure or inability to pay claims. However, we concur that Onda Mexicana has not previously received a written violation notice from the Commission and reduce the penalty to $6,400 based on its history of compliance.
* Specifically, in this Memorandum Opinion and Order, issued pursuant to Section 405 of the Communications Act of 1934, as amended (Act), and Section 1.106 of the Commission's rules (Rules), we grant in part and deny in part the request filed by Onda Mexicana seeking reconsideration of the Forfeiture Order against it for willfully and repeatedly violating Section 1.89(b) of the Rules.
* BACKGROUND
* Onda Mexicana asserts that "[o]n or about February 1, 2013 detailed information [in response to the NOV] was remitted by USPO Priority Mail to the Tampa field office, but for whatever reason, did not reach the Tampa Field office." Onda Mexicana also states that it corrected the violations noted in the NOV and requests reduction of the forfeiture because of its purported good faith or voluntary disclosure of the violations as well as its inability to pay. In addition, Onda Mexicana requests a forfeiture reduction in light of its history of compliance with the Rules.
* DISCUSSION
* Petitions for reconsideration are granted only in limited circumstances. Reconsideration is appropriate only where the petitioner either demonstrates a material error or omission in the underlying order, or raises additional facts not known or not existing until after the petitioner's last opportunity to present such matters. A petition for reconsideration based on facts or arguments not previously presented may be granted, however, if consideration of the facts or arguments relied on is required in the public interest.
* Onda Mexicana asserts it submitted a full and complete NOV response to the Bureau's Tampa Office on or about February 1, 2013, and has since come into full compliance with the Rules. However, the Bureau's Tampa Office has no record of receiving a full NOV response from Onda Mexicana on February 1, 2013 or any other date. In fact, Onda Mexicana requested a 30-day extension in which to respond to the NOV on March 11, 2013, over a month after it asserts it sent its NOV response. But even if Onda Mexicana submitted a complete response to the NOV on February 1, 2013, the response would have been untimely. Onda Mexicana originally was required to respond to the NOV by November 1, 2012. Even after receiving an additional extension of time, Onda Mexicana failed to file its NOV response. While coming into full compliance is commendable, we note that corrective action taken to come into compliance with the Rules is expected, and such corrective action does not nullify or mitigate prior violations, associated forfeiture liability, or Onda Mexicana's obligation to submit a complete NOV response. Thus, we find no grounds to reduce or cancel the forfeiture based on these arguments.
* Onda Mexicana also requests cancellation or reduction of the forfeiture based on its "[g]ood faith or voluntary disclosure" of the violations. However, Onda Mexicana does not provide any support for this claim and, in fact, did not disclose the underlying violations to the Bureau prior to the inspection of its station. In addition, Onda Mexicana requests cancellation or reduction of the forfeiture based on a purported inability to pay. Generally, when faced with claims alleging an inability to pay, the Commission has found that "a licensee's gross revenues are the best indicator of its ability to pay a forfeiture." Based on the financial information provided by Onda Mexicana, we find insufficient basis to reduce or cancel the forfeiture on these grounds.
* Finally, Onda Mexicana requests reduction of the proposed forfeiture based on its history of compliance with the Rules. We have reviewed our records and concur that Onda Mexicana has not been previously cited with a violation of the Rules. Accordingly, we find that consideration of Onda Mexicana's request is in the public interest and reduce the forfeiture imposed to six thousand four hundred dollars ($6,400) based on Onda Mexicana's history of compliance.
IV. ORDERING CLAUSES
* Accordingly, IT IS ORDERED, pursuant to Section 405 of the Act and Section 1.106 of the Rules, that the request for reconsideration filed by Onda Mexicana Radio Group, Inc. IS GRANTED IN PART AND DENIED IN PART.
* IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act and Sections 0.111, 0.311, and 1.80(f)(4) of the Rules, Onda Mexicana Radio Group, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of six thousand four hundred dollars ($6,400) for violation of Section 1.89(b) of the Rules.
* 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 Memorandum Opinion and 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. Onda Mexicana Radio Group, Inc. 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.
* 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.
* IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be sent by both First Class Mail and Certified Mail, Return Receipt Requested, to Onda Mexicana Radio Group, Inc., at 1000 Universal studios Plaza, Bldg. 22A, Suite 253, Orlando, FL 32819, and to its counsel, Edward A. Maldonado, Esq., at 800 Douglas Road Suite 149, Coral Gables, FL 33134.
FEDERAL COMMUNICATIONS COMMISSION
William Davenport
Deputy Chief
Enforcement Bureau