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A Radio Company, Inc

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Released: May 13, 2011

Federal Communications Commission

DA 11-724

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
) File No.: EB-10-SJ-0054
A Radio Company, Inc.
)
Licensee of Station WEGA
) NAL/Acct. No.: 201132680002
Vega Baja, PR 00694
)
Facility ID # 69853
) FRN: 0010555654
)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: May 12, 2011
Released: May 12, 2011
By the Chief, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture ("NAL"), we find that A Radio
Company, Inc. ("A Radio"), licensee of AM radio Station WEGA in Vega Baja, Puerto Rico, apparently
willfully and repeatedly violated an Enforcement Bureau ("Bureau") order by failing to comply with the
terms of the Order and Consent Decree entered into between the Bureau and A Radio.1 Based on our
review of the facts and circumstances of this case, we conclude that A Radio is apparently liable for a
forfeiture in the amount of twenty-five thousand dollars ($25,000).2

II.

BACKGROUND

2.
On May 12, 2008, the Bureau adopted an Order and Consent Decree3 that terminated a
Bureau investigation of possible violations by A Radio of sections 73.49, 73.1350(a), and 73.3526 of the
Commission's rules ("Rules")4 regarding antenna tower fencing, public inspection file requirements, and
operating with an unauthorized antenna pattern. Among other terms in the Order and Consent Decree, A
Radio agreed to make a voluntary contribution to the U.S. Treasury in the amount of eight thousand
dollars ($8,000) by June 14, 2008.5 A Radio also agreed to submit a Compliance Report certifying
compliance with all terms of the Consent Decree by May 14, 2010.6
3.
In response to a letter of inquiry7 issued by the Bureau's San Juan Office on April 16,


1 A Radio Company, Inc., Order and Consent Decree, 23 FCC Rcd 7337 (Enf. Bur. 2008) ("Order and Consent
Decree
").
2 The actions taken today do not prejudice any enforcement actions we may take for other violations discovered
while investigating A Radio's failure to comply with the terms of the Order and Consent Decree.
3 See note 1, supra.
4 47 C.F.R. 73.49, 73.1350(a), 73.3526.
5 Order and Consent Decree at 7341.
6 Id.
7 Letter from William Berry, Resident Agent, San Juan Office, to A Radio Company, Inc. (April 16, 2010) ("LOI").

Federal Communications Commission

DA 11-724

2010, A Radio admitted that it was required to make an $8,000 voluntary contribution pursuant to the
terms of the Order and Consent Decree and stated that the "original check for $8,000 was not cleared by
Western Bank because of insufficient funds."8 According to the Commission's records, as of May 10,
2011, A Radio has not submitted its $8,000 voluntary contribution to the U.S. Treasury. Similarly, as of
May 10, 2011, A Radio has not submitted its Compliance Report.

III.

DISCUSSION

4.
Section 503(b) of the Act provides that any person who willfully or repeatedly fails to
comply substantially with the terms and conditions of any license, or willfully or repeatedly fails to comply
with any of the provisions of the Act or of any rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. 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.9 The legislative
history to section 312(f)(1) of the Act clarifies that this definition of willful applies to both section 312 and
503(b) of the Act10 and the Commission has so interpreted the term in the section 503(b) context.11 The
Commission may also assess a forfeiture for violations that are merely repeated, and not willful.12 The
term "repeated" means the commission or omission of such act more than once or for more than one day.13
5.
Under the terms of the negotiated Order and Consent Decree, A Radio agreed to make a
voluntary contribution in the amount of $8,000 to the U.S. Treasury by June 14, 2008 and submit a
Compliance Report by May 14, 2010. As of May 10, 2011, A Radio has not submitted payment of the
voluntary contribution or its Compliance Report. Based on the facts and circumstances described above,
we find that A Radio apparently willfully and repeatedly violated a Bureau order by failing to comply with
the terms of the Order and Consent Decree entered into between the Bureau and A Radio and issued
pursuant to sections 4(i) and 503(b) of the Act.14
6.
The Commission's Forfeiture Policy Statement and section 1.80 of the Rules do not specify
a base forfeiture amount for failing to comply with a Commission order.15 The Commission has stated,


8 Letter from Gerardo A. Angulo, President/Owner, to William Berry, Resident Agent, San Juan Office at 1 (June 2,
2010) ("LOI Response").
9 47 U.S.C. 312(f)(1).
10 H.R. Conf. Rep. No. 97-765, at 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 . . . .").
11 See, e.g., Application for Review of Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991), recon. denied, 7 FCC Rcd 3454 (1992) ("Southern California Broadcasting Co.").
12 See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362
10 (2001) ("Callais Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable television operator's repeated
signal leakage).
13 Southern California Broadcasting Co., 6 FCC Rcd at 4388, 5; Callais Cablevision, Inc., 16 FCC Rcd at 1362,
9.
14 47 U.S.C. 154(i), 503(b).
15 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) ("Forfeiture Policy Statement"), recon. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. 1.80.
2

Federal Communications Commission

DA 11-724

however that the "omission of a specific rule violation from the list [establishing base forfeiture amounts]
should not signal that the Commission considers any unlisted violation as nonexistent or unimportant.
The Commission expects, and it is each licensee's obligation, to know and comply with all of the
Commission's rules."16 Thus, the Commission retains its discretion to issue forfeitures on a case-by-case
basis,17 irrespective of whether it has established a corresponding base forfeiture amount. In assessing the
monetary forfeiture amount, then, we must take into account the statutory factors set forth in section
503(b)(2)(E) of the Act, which include the nature, circumstances, extent, and gravity of the violations, 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.18 The Order and Consent Decree terminated an enforcement
proceeding which originated with a $15,000 Notice of Apparent Liability for Forfeiture.19 The Commission
has stated that "a consent decree violation, like misrepresentation, is particularly serious. The whole
premise of a consent decree is that enforcement action is unnecessary due, in substantial part, to a promise
by the subject of the consent decree to take the enumerated steps to ensure future compliance. Where, as
here, it appears that a regulated entity violated a consent decree, we believe a substantial proposed
forfeiture is warranted."20 Applying the Forfeiture Policy Statement, section 1.80 of the Rules, and the
statutory factors to the instant case, we therefore conclude that A Radio is apparently liable for a forfeiture
in the amount of $25,000.

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, 0.311, and 1.80 of the Rules, A Radio Company, Inc. is
hereby

NOTIFIED

of this

APPARENT LIABILITY FOR A FORFEITURE

in the amount of twenty-
five thousand dollars ($25,000) for violating the terms of a Bureau order adopted pursuant to section 4(i)
and 503(b) of the Act.21
8.

IT IS FURTHER ORDERED

that, pursuant to section 1.80 of the Rules within thirty (30)
days of the release date of this NAL, A Radio Company, Inc.,

SHALL PAY

the full amount of the proposed
forfeiture or

SHALL FILE

a written statement seeking reduction or cancellation of the proposed forfeiture.
9.
Payment of the forfeiture must be made by credit card, check or similar instrument,
payable to the order of the Federal Communications Commission. The payment must include the
Account Number and FRN referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, 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, and account number 27000001. For payment by credit card,
an FCC Form 159 (Remittance Advice) must be submitted. When 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). Requests for full payment under an installment plan should be


16 Forfeiture Policy Statement, 12 FCC Rcd at 17099 22.
17 Id.
18 47 U.S.C. 503(b)(2)(E).
19 A Radio Company, Inc., Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632680001 (Enf. Bur.,
San Juan Office, released October 25, 2005).
20 SBC Communications, Inc., Notice of Apparent Liability for Forfeiture and Order, 16 FCC Rcd 19091, 19125
(2001).
21 47 U.S.C. 154(i), 503(b); 47 C.F.R. 0.111, 0.311, 1.80.
3

Federal Communications Commission

DA 11-724

sent to: Chief Financial Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.22 If you have questions, please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. A Radio shall also send electronic
notification to SCR-Response@fcc.gov on the date said payment is made.
10.
The written statement seeking reduction or cancellation of the proposed forfeiture, if any,
must include a detailed factual statement supported by appropriate documentation and affidavits pursuant
to sections 1.80(f)(3) and 1.16 of the Rules. The written statement must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central Region, San Juan, Room 762, Hato
Rey, PR, 00918 and must include the NAL/Acct. No. referenced in the caption. A Radio shall also email an
electronic copy to SCR-Response@fcc.gov.
11.
The Commission will not consider reducing or canceling a forfeiture in response to a claim
of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three-year period;
(2) financial statements prepared according to generally accepted accounting practices ("GAAP"); or (3)
some other reliable and objective documentation that accurately reflects the petitioner's current financial
status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the
financial documentation submitted.
12.

IT IS FURTHER ORDERED

that a copy of this NAL shall be sent by both Certified
Mail, Return Receipt Requested, and regular mail, to A Radio Company, Inc., at P.O. Box 1488, Vega
Baja, PR 00694.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau


22 See 47 C.F.R. 1.1914.
4

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