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RF Services Apparently Liable for Late-Filed Auction 93 Application

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Released: August 22, 2012

Federal Communications Commission

DA 12-1379

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Request of
)
)

RF SERVICES INC.

)
Facility I.D. No. 190454
)
NAL/Acct. No. MB201241410039
For Waiver of Auction 93
)
FRN: 0012348777
Form 301 Filing Deadline
)
File No. BNPH-20120530AAD
)
Application for Construction Permit for
)
New FM Station, Giddings, Texas
)


MEMORANDUM OPINION AND ORDER

AND

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: August 22, 2012

Released: August 22, 2012

By the Chief, Audio Division:

I. INTRODUCTION

1.
The Commission has before it the May 30, 2012, request of RF Services Inc. (“RFS”), for
waiver of the post-auction Form 301 long-form application filing deadline. In this Memorandum Opinion
and Order and Notice of Apparent Liability for Forfeiture (“NAL”)
,1 we find that RFS apparently
willfully violated Sections 73.3573(f)(5)(i) and 73.5005(a) of the Rules by failing to timely file a post-
auction Form 301 application.2 Based upon our review of the facts and circumstances before us, we grant
RFS’s waiver request to the extent indicated herein, and conclude that RFS is apparently liable for a
monetary forfeiture in the amount of one thousand five hundred dollars ($1,500). We also accept RFS’s
application for filing.

II. BACKGROUND

2.
On September 12, 2011, the Media Bureau and the Wireless Telecommunications Bureau
(collectively, the “Bureaus”) jointly released a Public Notice announcing a March 27, 2012, auction of
FM broadcast construction permits, Auction 93.3 RFS timely filed a FCC Form 175 application to
participate in FM Auction 93, and was found to be a qualified bidder.4 By an April 17, 2012, Public
Notice, the Bureaus announced that RFS was the winning bidder in FM Auction 93 for the FM


1 This NAL is issued pursuant to Section 503(b) of the Communications Act of 1934, as amended (“Act”), and
Section 1.80 of the Commission’s rules (the “Rules”). See 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. The Bureau has
delegated authority to issue the NAL under Section 0.283 of the Rules. See 47 C.F.R. § 0.283.
2 See 47 C.F.R. §§ 73.3573(f)(5)(i), 73.5005(a).
3 Auction of FM Broadcast Construction Permits Scheduled for March 27, 2012; Comment Sought on Competitive
Bidding Procedures for Auction 93
, Public Notice, 26 FCC Rcd 12865 (MB/WTB 2011).
4 Auction of FM Broadcast Construction Permits; 109 Bidders Qualified to Participate in Auction 93, Public Notice,
27 FCC Rcd 2385 (MB/WTB 2012).

Federal Communications Commission

DA 12-1379

construction permit at Giddings, Texas.5 Winning bidders were required to file a post-auction FCC Form
301 long-form application by May 29, 2012. The Auction 93 Closing Public Notice cautioned that “[a]n
applicant that fails to submit the required long-form application before the specified deadline, and fails to
establish good cause for any late-filed submission shall be deemed to have defaulted and shall be subject
to the payments set forth in Section 1.2104(g) of the Commission’s rules.”6 RFS failed timely to submit a
post-auction Form 301 application. Its Form 301 application (the “Application”) was submitted on May
30, 2012. RFS attached to the Application a request for waiver of the filing deadline set forth in Sections
73.3573(f)(5)(i) and 73.5005(a) of the Rules, as well as the Auction 93 Closing Public Notice.7
3.
In its request for waiver, RFS states that the area in which to locate a rule-compliant
antenna site for the proposed station is quite small, and much of it is leased for petroleum exploration and
extraction. Additionally, RFS claims that the nearby Giddings-Lee County Airport places further
restrictions on tower placement. According to RFS, it received site assurance on May 29, the FCC Form
301 filing deadline, but while attempting to complete the engineering exhibit for its application
experienced a software crash. RFS states it submitted its FCC Form 301 application at 3:00 a.m. on May
30, 2012. RFS contends that a grant of a waiver of the filing deadline is in the public interest because its
filing delay was, at most, a minor, inadvertent post-auction delinquency that did not disrupt the auction
process, nor did it undermine the Commission’s policy of facilitating rapid implementation of new radio
service to the public.

III. DISCUSSION

4.
Waiver Request. Ordinarily, a winning bidder that fails to timely file the required long-
form application is deemed to have defaulted, its application is dismissed, and it is subject to the default
payment set forth in Section 1.2104(g) of the Rules.8 However, the Commission may, for good cause,
determine that a late-filed long-form application should be accepted.9 When an applicant seeks a waiver
of the rules, it must plead with particularity the facts and circumstances which warrant such action.10 A
waiver is appropriate only if special circumstances warrant a deviation from the general rule and such
deviation will serve the public interest.11
5.
The Commission has previously determined that an applicant has established good cause
for a late-filed post-auction long-form application submission when minor, inadvertent, post-auction
delinquencies did not disrupt the auction process, nor undermined the Commission’s policy of facilitating
rapid implementation of service to the public.12 We find that RFS has demonstrated circumstances that


5 Auction of FM Broadcast Construction Permits Closes; Winning Bidders Announced for Auction 93, Public
Notice, 27 FCC Rcd 4056 (MB/WTB 2012) (“Auction 93 Closing Public Notice”).
6 Id. at 4060.
7 47 C.F.R. §§ 73.3573(f)(5)(i), 73.5005(a). These Sections require a winning bidder to file its long-form
application within 30 days of the release of the public notice announcing the close of the auction, unless a longer
period is specified in that closing public notice.
8 47 C.F.R. § 1.2104(g).
9 47 C.F.R. § 73.5005(c).
10 Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968). In addition, Section
73.3566(a) of the Commission’s radio broadcast rules provides that requests for waiver “shall show the nature of the
waiver or exception desired and shall set forth the reasons in support thereof.” 47 C.F.R. § 73.3566(a).
11 See NetworkIP, LLC v. FCC, 548 F.3d 116, 125-28 (D.C.Cir 2008); Northeast Cellular Telephone Co. v. FCC,
897 F.2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v. FCC, 418 F.2d 1153, 1157-59 (D.C. Cir. 1969)).
12 See, e.g., Joseph C. Tesiero, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture,
DA 12-1004 (MB rel. June 27, 2012) (waiver granted and forfeiture assessed to applicant acting without assistance
of counsel, giving considerable weight to applicant’s record of prior compliance with auction-related requirements);
2

Federal Communications Commission

DA 12-1379

meet the standard for waiver of the application filing deadline. The record indicates that, prior to its late
filing of the Form 301 application, RFS had complied with all previous Auction 93 requirements,
including all filing and payment obligations, and was found to be a qualified bidder. RFS’s recitation of
its efforts to secure site assurance and to prepare and file its application, coupled with its filing of Form
301 the day after the deadline, do not evidence bad faith on its part. Furthermore, in reaching the
conclusion to waive the filing deadline, we give considerable weight to RFS’s record of prior compliance
with auction-related requirements.
6.
We also recognize that the Auction 93 licensing process was not significantly delayed nor
materially adversely affected by RFS’s late filing of the application here. Accepting RFS’s Form 301
application would not undermine the Commission’s broadcast auction policies. Thus, flexibility is
appropriate in this instance. We find it in the public interest to avoid a delay in implementing new service
to Giddings, Texas, by having to re-auction the FM construction permit, and therefore grant RFS’s waiver
request below. Although we grant RFS a waiver of the rules that would otherwise require dismissal of its
late-filed long-form application, and associated imposition of a default payment, we nonetheless find that
it apparently failed to comply with the rules requiring timely submission of the post-auction Form 301
application.
7.
Proposed Forfeiture. In this case, RFS has admitted that it failed to timely file a post-
auction Form 301 application, as required by Sections 73.3573(f)(5)(i) and 73.5005(a) of the Rules.
8.
This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision,
any person who is determined by the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by the Commission shall be liable to the
United States for a forfeiture penalty.13 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.14 The
legislative history to Section 312(f)(1) of the Act clarifies that this definition of “willful” applies to both
Sections 312 and 503(b) of the Act,15 and the Commission has so interpreted the term in the Section
503(b) context.16
9.
The Commission’s Forfeiture Policy Statement and Section 1.80(b)(6) of the Rules
establish a base forfeiture amount of $3,000 for the failure to file a required form.17 In determining the
appropriate forfeiture amount, we must consider the factors enumerated in Section 503(b)(2)(D) of the
Act, including “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 such other matters as
justice may require.”18





Frank J. Neely, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 8010
(MB 2006) (waiver granted and forfeiture assessed to applicant that stated it lacked assistance of counsel, and
neglected to fully read auction closing Public Notice setting forth filing deadline); Gulf Coast Community College,
20 FCC Rcd 17157 (MB 2005); Silver Palm Communications, Inc., 17 FCC Rcd 6606, 6607 (WTB 2002); City
Page & Cellular Services, Inc
., 17 FCC Rcd 26109, 22611-12 (WTB 2002); Pinpoint Communications, Inc., 14
FCC Rcd 6421 (WTB 1999).
13 47 U.S.C. § 503(b)(1)(B). See also 47 C.F.R. § 1.80(a)(1).
14 47 U.S.C. § 312(f)(1).
15 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
16 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).
17 See Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines
, Report and Order, 12 FCC Rcd 17087, 17113-15 (1997) (“Forfeiture Policy Statement”), recon. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(6), note to paragraph (b)(6), Section I.
18 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. § 1.80(b)(6).
3

Federal Communications Commission

DA 12-1379

10.
In this case, RFS was on notice that it was responsible for timely submitting its post-
auction Form 301 application, but failed timely to file its application. However, RFS’s waiver showing
indicates that it was diligent in prosecuting the application; that it successfully obtained site assurance by
the filing deadline; that it experienced software difficulties in preparing its technical exhibits, preventing
it from filing in a timely manner; and that it filed the Form 301 application only three hours after the
expiration of the filing deadline. Taking into consideration these facts and the factors required by Section
503(b)(2)(D) of the Act and the Forfeiture Policy Statement, we propose to reduce the forfeiture from the
full base amount of $3,000 to $1,500.

IV. ORDERING CLAUSES

11.
Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act
of 1934, as amended, and Section 1.80 of the Commission’s Rules, that RF Services Inc. IS HEREBY
NOTIFIED OF ITS APPARENT LIABILITY FOR FORFEITURE in the amount of $1,500 for its
apparent willful violation of Sections 73.3573(f)(5)(i) and 73.5005(a) of the Commission’s Rules.
12.
IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission’s Rules,
within thirty (30) days of the release date of this NAL, RF Services Inc. SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
13.
Payment of the proposed 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 NAL/Acct. No. and FRN referenced 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).19
RFS will also send electronic notification on the date said payment is made to
Lisa.Scanlan@fcc.gov.
14.
The written statement seeking reduction or cancellation of the proposed forfeiture, if any,
must be mailed to Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W.,
Washington, DC 20554, ATTN: Peter H. Doyle, Chief, Audio Division, Media Bureau, and MUST
INCLUDE the NAL/Acct. No. referenced above.
15.
The Commission will not consider reducing or canceling a forfeiture in response to a
claim of inability to pay unless the respondent 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
respondent’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.
16.
Requests for full payment of the forfeiture proposed in this NAL under the installment
plan should be sent to: Associate Managing Director- Financial Operations, 445 12th Street, S.W., Room
1-A625, Washington, DC 20554.20


19 See 47 C.F.R. § 1.1914.
20 Id.
4

Federal Communications Commission

DA 12-1379

17.
IT IS FURTHER ORDERED that RFS’s Request for Waiver of the Form 301 Filing
Deadline IS GRANTED in part and DENIED in all other respects, and the Application IS ACCEPTED
FOR FILING and will be processed in accordance with post-auction procedures.
18. IT IS FURTHER ORDERED that a copy of this NAL shall be sent by First Class and
Certified Mail, Return Receipt Requested, to RF Services Inc., 7301 Ranch Road 620 North, Suite 155
Building 279, Austin, TX 78726.
FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle
Chief, Audio Division
Media Bureau
5

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