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Petition For Reconsideration, Station DWVUV (AM), Leone, AS

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Released: December 4, 2012

Federal Communications Commission


DA 12-1949

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Application of
)
)

South Seas Broadcasting, Inc.

)
Facility ID No. 54768
)
NAL/Acct. No. MB200741410375
For Renewal of License for
)
FRN: 0006947618
Station DWVUV(AM), Leone,
)
File No. BR-20050928ADD
American Samoa
)

MEMORANDUM OPINION AND ORDER

Adopted: December 3, 2012

Released: December 4, 2012

By the Chief, Audio Division, Media Bureau:

I.

INTRODUCTION

1.
In this Order, we address a petition for reconsideration (“Petition”), filed by South Seas
Broadcasting, Inc. (“Licensee”), former licensee of DWVUV(AM), Leone, American Samoa (“Station”).
Licensee seeks reconsideration of an eighteen thousand dollar ($18,000) forfeiture issued by the Media
Bureau1 (“Bureau”) for: (1) Licensee’s willful and repeated violation of Section 73.1350 of the
Commission’s Rules (“Rules”), by operating the Station at variance from the terms of its authorization; 2
(2) Licensee’s willful and repeated violation of Section 73.1740 of the Rules, by leaving the Station silent
without proper authority;3 and (3) Licensee’s willful and repeated violation of Section 73.1015 of the
Rules, by failing to respond to Commission communications. 4 For the reasons set forth below, we deny
reconsideration.

II.

BACKGROUND

2.
On April 16, 2008, the Bureau issued a Memorandum Opinion and Order and Notice of
Apparent Liability for Forfeiture (“NAL”) 5 proposing a monetary forfeiture of $18,000 for the above
violations. Licensee responded to the NAL,6 and claimed that reduction or cancellation of the forfeiture
was warranted because: (1) Licensee did not violate Section 73.1740 because it did not know it needed to
request Special Temporary Authority (“STA”) to remain silent;7 (2) Licensee’s violation of Section
73.1350 was mitigated by the fact “that there was not sufficient time” to request STA before operating the


1 South Seas Broadcasting, Inc., Forfeiture Order, 27 FCC Rcd 4151 (MB 2012) (“Forfeiture Order”).
2 47 C.F.R. § 73.1350.
3 47 C.F.R. § 73.1740.
4 47 C.F.R. § 73.1015.
5 South Seas Broadcasting, Inc., Memorandum Opinion and Order and Notice of Apparent Liability, 23 FCC Rcd
6474, 6474 (MB 2008) (“NAL”).
6 “Petition for Reconsideration of Notice of Apparent Liability for Forfeiture and Opposition to Application for
Review,” filed May 27, 2008 (“Response”).
7 Id. at 2.
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DA 12-1949

Station at variance from its license;8 (3) Licensee’s failure to request STA was “mere oversight” and
therefore its violation of 73.1740 was not “willful” or “repeated;”9 (4) Licensee should have been
commended for operating at variance from its license, instead of fined;10 (5) Licensee did not violate
73.1350 because it did not knowingly interfere with any other licensed facility’s broadcasting
operations;11 (6) Licensee did not violate Section 73.1015 because it never failed to respond to the
Commission’s correspondence;12 (7) Licensee had a history of compliance with the Rules and a history of
public service to American Samoa;13 (8) payment of the forfeiture would be a financial burden;14 and (9)
the Commission had unfairly discriminated against Licensee in the enforcement of its Rules.15
3.
In the Forfeiture Order, the Bureau rejected all of these arguments and declined to reduce
the forfeiture.16 Licensee’s Petition now repeats these arguments, sometimes verbatim, and, argues for
the first time that reduction is warranted based on the financial burden the forfeiture would place on
Licensee’s ability to service American Samoa through its other broadcast stations,17 and on the difficult
circumstances of operating the Station in American Samoa.

III.

DISCUSSION

4.
A petition for reconsideration that simply reiterates previously rejected arguments will be
denied.18 To the extent that the Petition repeats arguments which were rejected in the Forfeiture Order, it
is summarily denied.
5.
Arguments in a petition for reconsideration being raised for the first time will be
considered only if they are based on changed circumstances or additional facts not known or existing at
the time of petitioner's last opportunity to present such matters, or if consideration of such arguments is
required to serve the public interest.19 The Petition raises two such “first time” arguments: it first argues
that imposing the forfeiture “would be contrary to the public interest” because it would take financial


8 Id. at 3.
9 Id. at 4.
10 Id.
11 Id.
12 Id. at 5.
13 Id. at 6-8.
14 Id. at 8.
15 Id. at 8-9. In support of this last argument, Licensee enumerated several alleged Rule violations occurring at
Station KJAL(AM), Tafuna, American Samoa, contending that the Commission has never acted on this “hotbed of
rule violations.” Id. at 9. In the instant Petition, Licensee argues that the NAL failed to acknowledge these
enumerated violations, again arguing that the Commission has inconsistently enforced its Rules. However,
Licensee’s claims against KJAL were unsupported by any factual showing and were thus properly rejected.
16 Forfeiture Order, 27 FCC Rcd at 4156.
17 Petition at 7. Licensee is the licensee of KKHJ(FM), Pago Pago, American Samoa; KKHJ(LP), Pago Pago,
American Samoa; and WVUV(FM), Fagaitua, American Samoa.
18 See, e.g., Saga Communications of Illinois, LLC, Memorandum Opinion and Order, 26 FCC Rcd 5958, 5959 (MB
2011) (rejecting an argument from a petition for reconsideration because it did not raise any new information
reflecting changed circumstances, did not present additional facts not known at the time of the last filing, and did not
attempt to show anything more than a disagreement with the Commission’s finding).
19 See 47 C.F.R. § 1.106(c).
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Federal Communications Commission


DA 12-1949

resources away from Licensee’s other broadcasting operations in American Samoa;20 second, it argues
that the difficulty of operating a radio station in the “far-flung South Pacific Territory of American
Samoa” warrants a reduction of the forfeiture.21 Because both of these arguments are based on
circumstances that existed when Licensee filed its Response and were not raised therein, and because the
public interest does not require their consideration, we will deny reconsideration.

IV.

ORDERING CLAUSES

6.
Accordingly, for the reasons discussed above, IT IS ORDERED, that the Petition for
Reconsideration filed by South Seas Broadcasting, Inc., on May 23, 2012, IS DENIED.
7.
IT IS ALSO ORDERED, pursuant to Section 503(b) of the Communications Act of 1934,
as amended, and Sections 0.283 and 1.80 of the Commission’s Rules,22 that South Seas Broadcasting, Inc.
IS LIABLE FOR A MONETARY FORFEITURE in the amount of eighteen thousand dollars ($18,000)
for willfully and repeatedly violating Sections 73.1350, 73.1740, and 73.1015 of the Commission’s Rules.
8.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
Commission's Rules within 30 days of the release of this Memorandum Opinion and Order. If the
forfeiture is not paid within the period specified, the case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act.23 Payment of the proposed forfeiture must be made by
check or similar instrument, payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced in the caption above. Payment by
check or money order may be mailed to Federal Communications Commission, at P.O. Box 979088, St.
Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank—Government Lockbox
#979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may
be made to ABA Number 021030004, receiving bank: TREAS NYC, BNF: FCC/ACV--27000001 and
account number as expressed on the remittance instrument. If completing the FCC Form 159, enter the
NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in block
number 24A (payment type code).24 Licensee will also send electronic notification on the date said
payment is made to alex.polley@fcc.gov and kelly.donohue@fcc.gov. Requests for payment of the full
amount of the forfeiture under an installment plan should be sent to: Associate Managing Director-
Financial Operations, Room 1-A625, 445 12th Street, S.W., Washington, DC 20554.25


20 This argument is essentially asking for a reduction based on financial hardship. Licensee’s operation of other
stations is within its discretion and does not present the Bureau with a special circumstance justifying a reduction in
the forfeiture amount. See, e.g., Board of Trustees, Davis & Elkins College, Memorandum Opinion and Order, 26
FCC Rcd 15555, n. 15 (MB 2011) (rejecting college’s argument that paying forfeiture would delay planned projects,
which would harm the public interest). Furthermore, without any evidence of Licensee’s financial status, the Bureau
cannot reduce the forfeiture in response to Licensee’s claim of inability to pay. See NAL, 23 FCC Rcd at 6481, ¶ 24.
While Licensee claims that it has submitted tax returns with its Petition, no such documents have ever been received
by the Bureau.
21 Petition at 3, 4. Licensee cites as mitigating circumstances for its violations the difficulties of travelling to
American Samoa from the continental United States, the tropical weather, and the lack of repair parts and qualified
personnel “on-island.” These claims are unsupported by any factual showing. Even if they were properly
supported, such claims would involve matters that the Licensee knew or should have known when it assumed the
responsibilities of serving as a Commission licensee for the Station.
22 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.283, 1.80.
23 47 U.S.C. § 504(a).
24 See 47 C.F.R. § 1.1914.
25 Id.
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Federal Communications Commission


DA 12-1949

9.
IT IS FURTHER ORDERED, that a copy of this Memorandum Opinion and Order shall
be sent by Certified Mail Return Receipt Requested, to South Seas Broadcasting, Inc., c/o Larry Fuss,
9408 Grand Gate Street, Las Vegas, NV 89143.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau
4

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