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Tesiero Apparently Liable for Late-Filed Auction 91 Application

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Released: June 27, 2012

Federal Communications Commission

DA 12-1004

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Request of
)
)

Joseph C. Tesiero

)
Facility I.D. No. 189565
)
NAL/Acct. No. MB201241410033
For Waiver of Auction 91
)
FRN: 0020449757
Form 301 Filing Deadline
)
File No. BNPH-20110726AHZ
)
Application for Construction Permit for
)
New FM Station, Speculator, New York
)


MEMORANDUM OPINION AND ORDER

AND

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: June 27, 2012

Released: June 27, 2012

By the Chief, Audio Division:

I. INTRODUCTION

1.
The Commission has before it the July 26, 2011, request of Joseph C. Tesiero
(“Tesiero”), 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
Tesiero 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 conclude that Tesiero is apparently liable for a monetary forfeiture in the amount of three
thousand dollars ($3,000). We also grant Tesiero’s waiver request and have accepted his application for
filing.

II. BACKGROUND

2.
On September 21, 2010, the Media Bureau and the Wireless Telecommunications Bureau
(collectively, the “Bureaus”) jointly released a Public Notice announcing a March 29, 2011, auction of
FM broadcast construction permits, Auction 91.3 Tesiero timely filed a FCC Form 175 application to
participate in FM Auction 91, and was found to be a qualified bidder.4 By a May 23, 2011, Public Notice,
the Bureaus announced that Tesiero was the winning bidder in FM Auction 91 for the FM construction


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 29, 2011; Comment Sought on Competitive
Bidding Procedures for Auction 91
, Public Notice, 25 FCC Rcd 13034 (MB/WTB 2010).
4 Auction of FM Broadcast Construction Permits; 117 Bidders Qualified to Participate in Auction 91, Public Notice,
26 FCC Rcd 5805 (MB/WTB 2011).

Federal Communications Commission

DA 12-1004

permit at Speculator, New York.5 Winning bidders were to file a post-auction FCC Form 301 long-form
application by June 30, 2011. The Auction 91 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 Tesiero failed timely to submit a post-auction
Form 301 application. His Form 301 application (the “Application”) was submitted on July 26, 2011. On
May 11, 2012, Tesiero amended the Application, requesting 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 91 Closing Public Notice.7
3.
In his request for waiver, Tesiero states he did not have the assistance of counsel during
the auction process and that he had been preoccupied with the construction of another station and issues
related to his non-broadcast business. Tesiero has now retained counsel to assist with the Form 301
application. Tesiero contends that a grant of a waiver of the filing deadline is in the public interest
because: (1) prior to this late application filing he has complied with all previous auction requirements,
including all filing and payment obligations, and was found to be a qualified bidder. Thus, there is a
record of prior compliance with auction-related requirements; (2) the omission was minor and inadvertent
and there is no evidence of bad faith on his part; (3) acceptance of this application will not disrupt the
auction process nor undermine the Commission’s policy of facilitating rapid implementation of service;
(4) acceptance of the Application will avoid a delay in implementing new service to Speculator, New
York, by having to re-auction the FM construction permit.

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 undermine the Commission’s policy of facilitating


5 Auction of FM Broadcast Construction Permits Closes; Winning Bidders Announced for Auction 91, Public
Notice, 26 FCC Rcd 7541 (MB/WTB 2011) (“Auction 91 Closing Public Notice”).
6 Id. at 7546.
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)).
2

Federal Communications Commission

DA 12-1004

rapid implementation of service to the public.12 We find that Tesiero has demonstrated circumstances that
meet the standard for waiver of the application filing deadline. The record indicates that, prior to his late
filing of the Form 301 application, Tesiero had complied with all previous Auction 91 requirements,
including all filing and payment obligations, and was found to be a qualified bidder. While Tesiero
lacked the assistance of counsel and was inattentive to the specific post-auction application filing deadline
announced in the Auction 91 Closing Public Notice, we find no evidence of bad faith on his part.
Furthermore, in reaching the conclusion to waive the filing deadline, we give considerable weight to
Tesiero’s record of prior compliance with auction-related requirements.
6.
We also recognize that the FM licensing process was not significantly delayed nor
materially adversely affected by Tesiero’s late filing of the application here. Accepting Tesiero’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 Speculator, New York, by having to re-auction the FM construction permit, and therefore grant
Tesiero’s waiver request below. Although we grant Tesiero a waiver of the rules that would otherwise
require dismissal of his late-filed long-form application, and associated imposition of a default payment,
we nonetheless find that he apparently failed to comply with the rules requiring timely submission of the
post-auction Form 301 application.
7.
Proposed Forfeiture. In this case, Tesiero has admitted that he 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)(4) 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


12 See, e.g., Tallie Colville, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 26
FCC Rcd 14216 (MB 2011) (waiver granted and forfeiture assessed, giving considerable weight to applicant’s
record of prior compliance with auction-related requirements); 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)(4), note to paragraph (b)(4), Section I.
3

Federal Communications Commission

DA 12-1004

violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as
justice may require.”18
10.
In this case, Tesiero was on notice that he was responsible for timely submitting his post-
auction Form 301 application, but failed timely to file his application. 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 a forfeiture in the full base amount of $3,000.

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 Joseph C. Tesiero is hereby
NOTIFIED of his APPARENT LIABILITY FOR FORFEITURE in the amount of $3,000 for his
apparent willful violation of Sections 73.3573(f)(5)(i) and 73.5005(a) of the Commission’s Rules.
12.
IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s Rules, that,
within thirty (30) days of the release date of this NAL, Joseph C. Tesiero 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 No. 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
Tesiero 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 D.C. 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, D.C. 20554.20


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)(4).
19 See 47 C.F.R. § 1.1914.
20 Id.
4

Federal Communications Commission

DA 12-1004

17. IT IS FURTHER ORDERED, that Tesiero’s Request for Waiver of the Form 301 Filing
Deadline IS GRANTED and the Application will be processed in accordance with post-auction
procedures.
18. IT IS FURTHER ORDERED, that copies of this NAL shall be sent by First Class and
Certified Mail, Return Receipt Requested, to Joseph C. Tesiero, 1250 Riverfront Center, Amsterdam, NY
12010, and to his counsel, Howard M. Weiss, Esquire, Fletcher Heald & Hildreth, PLC, 1300 North 17th
Street, 11th floor, Arlington, VA 22209-3801.
FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle
Chief, Audio Division
Media Bureau
5

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