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$20K Forfeiture Against Renacer for Antenna Structure Violations

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Released: January 22, 2014

Federal Communications Commission

DA 14-67


Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Renacer Broadcasters Corporation
)
File No.: EB-11-SJ-0059
)
NAL/Acct. No.: 201232680006
Owner of Antenna Structure Number 1230863
)
FRN: 0009672916
Maricao, PR
)
)

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).1 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) 2 to Renacer for its
apparent failure to paint and light the Antenna Structure.
3.
Renacer submitted a response to the NAL3 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)4 and passed inspections in 2005 and
2008.5 Renacer asserts that it “reasonably” relied upon the certificates of compliance that it received


1 47 U.S.C. § 303(q); 47 C.F.R. § 17.21.
2 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.
3 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).
4 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).
5 NAL Response at 2-3.

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following the two ABIP inspections and assumed that its Antenna Structure was in compliance with the
Rules.6 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.7

III.

DISCUSSION

4.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Act,8 Section 1.80 of the Rules,9 and the Forfeiture Policy Statement.10 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.11
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.12 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.”13 The Antenna Structure is 90 meters
above the ground in height and is required to be painted and lighted.14 It is undisputed that the Antenna
Structure was built in 2001 and had no lights installed until the summer of 2012.15 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.16 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


6 Id.
7 Id. at 4.
8 47 U.S.C. § 503(b).
9 47 C.F.R. § 1.80.
10 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).
11 47 U.S.C. § 503(b)(2)(E).
12 47 U.S.C. § 303(q).
13 47 C.F.R. § 17.21(a).
14 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.
15 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.
16 47 U.S.C. § 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. § 503(b).
2

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DA 14-67

an FCC-approved inspector in to ensure compliance had been achieved.”17 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.”18 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”19 until May 2011,20 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.21 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.22 The
Commission does not select the inspectors conducting the ABIP inspections.23 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. . . .”24 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.25
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.26 As noted earlier, Commission rules clearly require such structures to be appropriately painted
and lit.27 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


17 NAL Response at 4.
18 NAL Response at 3.
19 NAL Response at 3.
20 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.
21 PR ABIP Agreement at 1.
22 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.
23 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.
24 PR ABIP Agreement at 4.
25 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).
26 See supra note 14.
27 See supra note 13.
3

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DA 14-67

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,28
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.29 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.30
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.31 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.32 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.33 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:
Ÿ
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.


28 The Antenna Structure was constructed in the 2001-2002 timeframe. See NAL, 27 FCC Rcd at 8901, para. 4.
29 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).
30 47 U.S.C. §§ 303(q), 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80, 17.21.
31 47 C.F.R. § 1.80.
32 47 U.S.C. § 504(a).
33 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
4

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DA 14-67

Ÿ
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.
Ÿ
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. 20554.34 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 17th Street, 11th Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director
South Central Region
Enforcement Bureau


34 See 47 C.F.R. § 1.1914.
5

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