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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-11-SJ-0059
Renacer Broadcasters Corporation )
NAL/Acct. No.:
Owner of Antenna Structure Number: ) 201232680006
1230863
) FRN: 0009672916
Maricao, PR
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: August 1, 2012 Released: August 1, 2012
By the Resident Agent, San Juan Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Renacer Broadcasters Corporation (Renacer), owner of
antenna structure number 1230863 (the Antenna Structure) in Maricao,
Puerto Rico, apparently willfully and repeatedly violated Section
303(q) of the Communications Act of 1934, as amended (Act) and Section
17.21 of the Commission's rules (Rules) by failing to paint and light
the Antenna Structure. We conclude that Renacer is apparently liable
for a forfeiture in the amount of twenty thousand dollars ($20,000).
In addition, we direct Renacer to submit, no later than thirty (30)
calendar days from the date of this NAL, a statement signed under
penalty of perjury stating that it is now in compliance with the
Commission's antenna structure painting and lighting requirements.
II. BACKGROUND
2. The Antenna Structure is 90 meters overall in height above ground, is
required to be painted and lighted, and was constructed in the
2001-2002 timeframe. On December 1, and again on December 8, 2011, in
response to a complaint, an agent from the Enforcement Bureau's San
Juan Office (San Juan Office) inspected the Antenna Structure and
observed that the structure had never been painted and had no lights
installed.
III. DISCUSSION
3. 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. 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 Comply with Antenna Structure Painting and Lighting
Requirements
4. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Section 17.21(a) of the Rules states that
"[a]ntenna structures shall be painted and lighted when: (a) they
exceed 60.96 meters (200 feet) in height above the ground or they
require special aeronautical study." The Antenna Structure is 90
meters above the ground in height and is required to be painted and
lighted. In addition, according to the Commission's Antenna Structure
Registration database, the structure was constructed in the 2001-2002
timeframe. On December 1, and again on December 8, 2011, an agent from
the San Juan Office observed that the Antenna Structure had never been
painted and had no installed lights. Based on the evidence before us,
we find that Renacer apparently willfully and repeatedly violated
Section 303(q) of the Act and Section 17.21 of the Rules by failing to
paint and light the Antenna Structure.
A. Proposed Forfeiture Amount and Reporting Requirement
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to paint and
light the antenna structure is $10,000. 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. Because the Antenna Structure has remained unpainted and
unlit for more than ten years, we find this violation egregious and
warranting an upward adjustment of $10,000. Applying the Forfeiture
Policy Statement, Section 1.80 of the Rules, and the statutory factors
to the instant case, we conclude that Renacer is apparently liable for
a total forfeiture in the amount of $20,000.
6. We direct Renacer to submit a written statement, pursuant to Section
1.16 of the Rules, signed under penalty of perjury by an officer or
director of Renacer, stating that it is now in compliance with the
Commission's antenna structure painting, lighting and monitoring
requirements and has updated the Antenna Structure Registration
database to reflect any new studies issued by the Federal Aviation
Administration (FAA). This statement must be provided to the San Juan
Office at the address listed in paragraph 9 within thirty (30)
calendar days of the release date of this NAL.
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, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, Renacer Broadcasters
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty thousand dollars ($20,000) for
violations of Section 303(q) of the Act and Section 17.21 of the
rules.
8. 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 and Order,
Renacer Broadcasters Corporation SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. IT IS FURTHER ORDERED that Renacer Broadcasters Corporation SHALL
SUBMIT a statement as described in paragraph 6 above, within thirty
(30) calendar days of the release date of this Notice of Apparent
Liability for Forfeiture and Order. The statement must be mailed to
Federal Communications Commission, Enforcement Bureau, South Central
Region, San Juan Office, U.S. Federal Building, Room 762, Hato Rey, PR
00918-1731. Renacer Broadcasters Corporation shall also e-mail the
written statement to SCR-Response@fcc.gov.
10. 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. Renacer Broadcasters Corporation shall also
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov. 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.
11. 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.
12. 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. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, San Juan Office, U.S. Federal Building, Room 762, Hato
Rey, PR 00918-1731 and include the NAL/Acct. No. referenced in the
caption. Renacer Broadcasters Corporation also shall email the written
response to SCR-Response@fcc.gov.
13. 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.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail to Renacer Broadcasters
Corporation at PO Box 174, Lajas, PR 00667.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent
San Juan Office
South Central Region
Enforcement Bureau
Although the Commission's Antenna Structure Registration database lists
Santa Morales as the owner of the Antenna Structure, on December 2, 2011,
Renacer's owner stated over the telephone that Ms. Morales is his wife and
that she mistakenly listed herself as owner, rather than as contact
person. Renacer's owner stated to the agent that Renacer owns the Antenna
Structure. We direct Renacer to correct the ownership information in the
Antenna Structure Registration database. See 47 C.F.R. S: 17.57.
47 U.S.C. S: 303(q); 47 C.F.R. S: 17.21.
See 47 C.F.R. S: 17.21(a) (requiring antenna structures more than 60.96
meters in height above the ground to be painted and lighted). See also
Antenna Structure Registration database for antenna structure number
1230863.
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 U.S.C. S: 303(q).
47 C.F.R. S: 17.21(a).
See Antenna Structure Registration database for antenna structure number
1230863.
Id.
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).
Cf. Telava Wireless, Inc., Notice of Apparent Liability for Forfeiture, 27
FCC Rcd 3239 (Enf. Bur. 2012) (upwardly adjusted by $5,000 because owner
knew or should have known that its antenna structure lights were unlit for
more than one year and took no action until being notified by Commission
agents).
47 C.F.R. S: 1.16.
See 47 C.F.R. S: 17.47 (requiring antenna structure owners to make an
observation of antenna structure lights at least once every 24 hours or to
employ an automatic light monitoring system). See also 47 C.F.R. S: 17.48
(requiring antenna structure owners to notify the Federal Aviation
Administration in the event of certain antenna structure lighting
outages).
47 U.S.C. S:S: 303(q), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 17.21.
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).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1220
5
Federal Communications Commission DA 12-1220