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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No.: EB-11-DV-0102
Alpha & Omega Communications, LLC
) NAL/Acct. No.: 201232800003
Owner of Antenna Structure # 1040896
) FRN: 0005898093
West Valley City, Utah
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 10, 2012 Released: July 11, 2012
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Alpha & Omega Communications, LLC (A&O), owner of antenna
structure number 1040896 (Antenna Structure), in West Valley City,
Utah, apparently willfully and repeatedly violated Section 17.57 of
the Commission's rules (Rules), by failing to notify the Commission
upon a change in ownership information for the Antenna Structure. We
conclude that A&O is apparently liable for a forfeiture in the amount
of three thousand dollars ($3,000).
II. BACKGROUND
2. On May 17, 2011, an agent of the Enforcement Bureau's Denver Office
(Denver Office) inspected the Antenna Structure, located in West
Valley City, Utah. A search of the Commission's Antenna Structure
Registration (ASR) database revealed that the Antenna Structure was
registered to KMRI Radio LLC. When the Denver agent contacted the
General Manager of Station KMRI(AM), the agent was informed that the
Antenna Structure and Station KMRI(AM) had been sold to A&O a few
years earlier. On July 29, 2011, the Denver Office sent a Letter of
Inquiry (LOI) to A & O. In its reply to the LOI, A&O stated that it
had purchased the Antenna Structure as part of its acquisition of
Station KMRI(AM) and that the transaction was consummated on January
1, 2008. A&O also stated that it updated the ASR information for the
Antenna Structure to reflect A&O's ownership of the structure on
August 9, 2011, subsequent to A&O's receipt of the LOI.
III. DISCUSSION
3. Section 503(b) of the Communications Act of 1934, as amended (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. 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, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful. The term "repeated" means the commission or omission
of such act more than once or for more than one day.
A. Failure to Update Ownership Information for the Antenna Structure
4. Section 17.57 of the Rules requires the owner of an antenna structure
to immediately notify the Commission, using FCC Form 854, upon any
change in ownership information. Antenna structure owners must
maintain current antenna structure registration information with the
Commission and post ASR numbers at the base of antenna structures to
allow for easy contact if problems arise. A&O acquired the Antenna
Structure on January 1, 2008, but failed to update the ownership
information for the structure until August 9, 2011, and only after
receiving the LOI from the Denver Office. Based on the evidence before
us, we find that A & O apparently willfully and repeatedly violated
section 17.57 of the Rules by failing to immediately notify the
Commission about a change in ownership for the Antenna Structure.
B. Proposed Forfeiture Amount
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to file
required forms or information is $3,000. In assessing the monetary
forfeiture amount, we must also 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. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that A&O is apparently liable for a forfeiture in the amount of
$3,000.
IV. ORDERING CLAUSES
6. 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 of the Commission's rules, Alpha & Omega
Communications, LLC, is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of three thousand dollars ($3,000) for
violation of Section 17.57 of the Rules.
7. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Alpha &
Omega Communications, LLC, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
8. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Alpha & Omega Communications, LLC, shall
send electronic notification of payment to WR-Response@fcc.gov on the
date said payment is made. Regardless of the form of payment, a
completed FCC Form 159 (Remittance Advice) must be submitted. 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:
* 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.
* 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.
* 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. 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. 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Denver Office, 215 S. Wadsworth Blvd., # 303, Lakewood, CO
80226 and include the NAL/Acct. No. referenced in the caption. Alpha &
Omega Communications, LLC, also shall email the written response to
WR-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 Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail to Alpha & Omega Communications, LLC, P.
O. Box 352, Salt Lake City, UT 84110.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears,
District Director
Denver Office
Western Region
Enforcement Bureau
47 C.F.R. S: 17.57.
The Antenna Structure is 78 meters in overall height and is required to
have painting and lighting in accordance with FAA Chapters 3, 4, 5, and
13, of FAA Circular Number 70/7460-1J.
A&O is also the licensee of Station KMRI(AM), West Valley City, Utah, and
utilizes antenna structure number 1040896 to broadcast KMRI(AM).
See Letter of Inquiry from Nikki P. Shears, District Director, Denver
Office, Western Region, FCC Enforcement Bureau, to Alpha & Omega
Communications, LLC (Jul. 29, 2011) (on file in EB-11-DV-0102).
Letter from Alpha & Omega Communications, LLC, to Nikki P. Shears,
District Director, Denver Office, Western Region, FCC Enforcement Bureau
(Aug. 13, 2011) (on file in EB-11-DV-0102) (LOI Response).
See File No. A0734206, entered Aug. 9, 2011.
LOI Response at 1.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
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 . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S: 17.57.
See, e.g., American Tower Corporation, Notice of Apparent Liability, 16
FCC Rcd 1282 (proposing forfeitures of $3,000 per violation for failure to
update antenna structure registration), Order and Consent Decree, 16 FCC
Rcd 14937 (2001) (resolving forfeiture proceeding and other potential
antenna structure rule violation cases); James A. Davis, Notice of
Apparent Liability for Forfeiture and Order, DA No. 12-755, 2012 WL
1790352 (Enf. Bur. rel. May 16, 2012) (proposing $3,000 forfeiture for
failure to update antenna structure registration for three years); P&Y
Broadcasting Corporation, Notice of Apparent Liability for Forfeiture, 26
FCC Rcd 14444 (Enf. Bur. 2011) (proposing $3,000 forfeiture for failure to
update antenna structure registration for three years).
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
17.57.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-1098
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Federal Communications Commission DA 12-1098