******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Liability of Angel F. Ginorio ) Licensee of Low Power TV ) Station, W28AH ) Arecibo, Puerto Rico ) FORFEITURE ORDER Adopted: January 24, 1997 Released: January 28, 1997 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to authority delegated by Section 0.283 of the Commission's Rules, has before it for consideration: (1) a $20,000 Notice of Apparent Liability (NAL) in Mr. Angel F. Ginorio, 9 FCC Rcd 698 (1994); and (2) a March 19, 1994, response of Angel F. Ginorio ("Ginorio"), licensee of low power television station W28AH, Arecibo, Puerto Rico. 2. The forfeiture was assessed for the apparent willful and repeated violations of Section 310(d) of the Communications Act and Section 73.3540 of the Commission's Rules. As explained more fully in the NAL, we determined that Ginorio apparently engaged in two unauthorized assignments of the license of station W28AH: The first from Ginorio to AFG Broadcasting Corporation, and the second from Ginorio to his son, Victor Ginorio. In addition to imposing the forfeiture, we directed Ginorio to provide written documentation of his efforts to bring station W28AH into full compliance with Section 310(d) of the Communications Act and Section 73.3540 of the Commission's Rules. We stated that Ginorio must either demonstrate his unequivocal reassertion of control over the station or file an application to assign the station license to Victor Ginorio. 3. In response to the NAL, Ginorio states that he did not intend to violate the Commission's rules. Ginorio asserts that he engaged in the unauthorized assignments because his health required him to delegate control of the station. In addition, Ginorio contends that he is not "in an economic position" to pay the forfeiture. 4. As discussed more fully in the NAL, Ginorio's actions went beyond mere delegation and constituted unauthorized assignments of the license. Consequently, we find Ginorio's actions, rather than his stated intent, to be dispositive of the matter. Further, Ginorio provides no documentation to support his claim of financial hardship. Therefore, we have no basis upon which to find Ginorio financially unable to pay a forfeiture. Accordingly, Ginorio has made no showing that the forfeiture should be rescinded. 5. However, the amount of the forfeiture was based upon guidelines described in our Policy Statement on Standards for Assessing Forfeitures, 6 FCC Rcd 4659 (1991), recon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993), which the court set aside in United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). Therefore, we have recalculated the forfeiture based upon factors set forth in Section 503(b)(2) of the Communications Act, including the nature, circumstances, and gravity of the violation. We have also considered decisions in cases of unauthorized transfer of control such as Liability of Monte Corporation, DA 96-1984 (released November 27, 1996), which have been issued subsequent to the court's ruling, as relevant to our determination in this matter. There we initially assessed a $2,000 forfeiture for an unauthorized transfer of control from the licensee to an entity under the control of the licensee's principal, an action similar to the first unauthorized control that took place in this case. While we assessed a considerably higher forfeiture ($10,000) in Liability of Monte Corporation for a second unauthorized transfer of control to an unrelated entity, we have taken into account the fact that the forfeiture therein, as well as others assessed in recent cases, involved violations by full powered facilities, which are likely to generate revenues far greater than W28AH as a low power television station. In view of all these considerations, we have decided that a $5,000 forfeiture is the more appropriate sanction in this case. 6. Accordingly, pursuant to Section 503(b) of the Communications Act, IT IS ORDERED THAT Angel F. Ginorio, licensee of low power television station W28AH, Arecibo, Puerto Rico, FORFEIT to the United States of America the sum of five thousand dollars ($5,000) for the willful and repeated violations of Section 310(d) of the Communications Act and Section 73.3540 of the Commission's Rules. Payment of the forfeiture maybe made by mailing a check or similar instrument payable to the Federal Communications Commission at the address indicated in the attachment to this Memorandum and Opinion and Order. With respect to this forfeiture proceeding, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, as summarized in the attachment. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau