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Hacienda San Eladio, Inc.

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Released: February 8, 2013

Federal Communications Commission

DA 13-179


Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Hacienda San Eladio, Inc.
)
File No.: EB-11-SJ-0049
)
NAL/Acct. No.: 201232680002
Owner of Antenna Structure No. 1222789
)
FRN: 0008032708
Juncos, Puerto Rico
)
)

FORFEITURE ORDER

Adopted:

February 8, 2013

Released:

February 8, 2013
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 four thousand
five hundred dollars ($4,500) to Hacienda San Eladio, Inc. (Hacienda), owner of antenna structure number
1222789 (the Antenna Structure), located in Juncos, Puerto Rico, for its willful and repeated violation of
Section 17.57 of the Commission’s rules (Rules).1 The noted violation involved Hacienda’s failure to
notify the Commission upon a change in ownership information for the Antenna Structure.

II.

BACKGROUND

2.
On February 27, 2012, the Enforcement Bureau’s San Juan Office (San Juan Office)
issued a Notice of Apparent Liability for Forfeiture and Order (NAL) 2 to Hacienda for its apparent violation
of Section 17.57 of the Rules. Hacienda submitted a response to the NAL requesting cancellation or
reduction of the proposed $4,500 forfeiture, because “Hacienda inadvertently overlooked filing an update
with the Commission regarding the Antenna Structure’s ownership. When apprised of the oversight via
the NAL, Hacienda immediately remedied the matter and filed the FCC Form 854 to update the
Commission’s records.”3

III.

DISCUSSION

3.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Communications Act of 1934, as amended (Act),4 Section 1.80 of the Rules,5 and the


1 47 C.F.R. § 17.57.
2 Hacienda San Eladio, Inc., Notice of Apparent Liability for Forfeiture and Order, 27 FCC Rcd 2086 (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, Fletcher, Heald & Hildreth, P.L.C., to San Juan Office, South Central Region,
Enforcement Bureau, at 1 (May 3, 2012) (on file in EB-11-SJ-0049) (NAL Response).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.

Federal Communications Commission

DA 13-179

Forfeiture Policy Statement.6 In examining Hacienda’s response, Section 503(b)(2)(E) of the Act requires
that the Commission 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.7 As discussed below, we have considered Hacienda’s response
in light of these statutory factors, and find that cancellation or reduction of the forfeiture is not warranted.
4.
Section 17.57 of the Rules requires owners of registered antenna structures to immediately
notify the Commission, using FCC Form 854, upon any change in structure height or change in ownership
information.8 It is undisputed that Hacienda acquired the Antenna Structure in 2003 and, as of January 23,
2012, had not updated the ownership information for the structure in the Antenna Structure Registration
(ASR) database. In fact, Hacienda did not update its ownership information until April 23, 2012.9 In its
NAL Response, Hacienda does not contest that it failed to update the ownership information, but states that
the violation was inadvertent.10 The Commission has held, however, that violations resulting from
inadvertent error or failure to become familiar with the Commission’s requirements are willful
violations.11 Thus, based on the evidence before us, we find that Hacienda willfully and repeatedly violated
Section 17.57 of the Rules by failing to immediately notify the Commission upon a change in ownership
information for the Antenna Structure.
5.
We now consider Hacienda’s assertion that the proposed forfeiture failed to take into
account the nature and circumstances of the violation, namely that the violation resulted from a “single
oversight.” We disagree. The Commission has long held that administrative oversight or inadvertence is
not a mitigating factor warranting a downward adjustment of a forfeiture.12 We find no grounds to depart
from the well established Commission precedent in this case. Hacienda also questions the upward
adjustment, alleging that a single oversight is not a “repeated and somehow willful flagrant disregard” of
the Rules.13 The term “repeated” means “more than once, or where the act is continuous, for more than
one day.”14 Here, the violation existed continuously for over eight years. Section 1.80 of the Rules


6 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).
7 47 U.S.C. § 503(b)(2)(E).
8 47 C.F.R. § 17.57.
9 NAL Response, Declaration of Pablo Reyes Martinez, Vice President of Hacienda San Eladio, Inc. See also
Antenna Structure Registration Database for antenna structure number 1222789.
10 NAL Response at 1-2.
11 See, e.g., USA Teleport, Inc., Memorandum Opinion and Order, 26 FCC Rcd 6431, 6434, para. 9 (Enf. Bur. 2011)
(ignorance of a filing requirement does not negate willfulness of failure to file); Heidelberg College, Forfeiture
Order, 24 FCC Rcd 11923, 11924, para. 6 (Media Bur. 2009) (unintentional failure to file timely license renewal is
willful).
12 See, e.g., America Movil, S.A.B. de C.V., Parent of Puerto Rico Telephone Company, Inc., Notice of Apparent
Liability for Forfeiture, 26 FCC Rcd 8672 (Enf. Bur. 2011) (administrative oversight or inadvertence is not
mitigating factor); Application for Review of Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, para. 3 (1991), recons. denied, 7 FCC Rcd 3454 (1992) (stating that “inadvertence . . . is at
best, ignorance of the law, which the Commission does not consider a mitigating circumstance”).
13 NAL Response at 2.
14 H.R. Rep. No. 97-765, 97th 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 . . . .”).
2

Federal Communications Commission

DA 13-179

includes “repeated or continuous violation” as one of several upward adjustment criteria when deciding
upon a forfeiture amount.15 Thus, we conclude the upward adjustment of the base forfeiture16 was
warranted given the repeated nature of the violation.17
6.
Finally, Hacienda claims that the Commission should consider that it promptly filed the
FCC Form 854 upon receipt of the NAL. We decline to reduce or cancel the proposed forfeiture on these
grounds. Hacienda’s post-NAL submission of an FCC Form 854 does not nullify or mitigate the violation,
because corrective action to come into compliance with the Rules is expected.18 Therefore, based on our
review of the record, we hereby affirm the NAL and assess a forfeiture in the amount of $4,500.

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(f)(4) of the Commission’s
rules, Hacienda San Eladio, Inc.

IS LIABLE FOR A MONETARY FORFEITURE

in the amount of
four thousand five hundred dollars ($4,500) for violation of Section 17.57 of the Commission’s rules.19
8.
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.20 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.21 Hacienda San Eladio, 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.22 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.


15 47 C.F.R. § 1.80. See also Forfeiture Policy Statement, 12 FCC Rcd 17087.
16 The NAL stated “[b]ecause Hacienda has failed to notify the Commission regarding the change in ownership for over
eight years, we find this violation particularly egregious and warranting an upward adjustment of $1,500” and cited a
case which imposed an upward adjustment in forfeiture due to the duration of the violation. NAL, 27 FCC Rcd at
2088. Thus, the apparent violation was considered egregious due to the eight-year duration of the violation.
17 Cf. P&Y Broadcasting Corporation, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 1444 (Enf. Bur.
2011 (imposing a $3,000 forfeiture for failing to update antenna structure ownership information for three years)
(forfeiture paid).
18 See, e.g., International Broadcasting Corporation, Order on Review, 25 FCC Rcd 1538 (2010) (holding post-
inspection remedial compliance efforts do not warrant mitigation of forfeiture).
19 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4), 17.57.
20 47 C.F.R. § 1.80.
21 47 U.S.C. § 504(a).
22 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
3

Federal Communications Commission

DA 13-179

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.
9.
Any request for full payment 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. 20554.23 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.
10.

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 Hacienda San Eladio, Inc. at PO Box 437, Rio
Blanco, PR 00744-0437, and to its counsel, Francisco Montero, Fletcher, Heald & Hildreth, P.L.C., 1300
North 17th Street, 11th Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director
South Central Region
Enforcement Bureau


23 See 47 C.F.R. § 1.1914.
4

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