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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-SJ-0049
)
Hacienda San Eladio, Inc. NAL/Acct. No.:
) 201232680002
Owner of Antenna Structure # 1222789
) FRN: 0008032708
Juncos, Puerto Rico
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: February 27, 2012 Released: February 27, 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 Hacienda San Eladio Inc. (Hacienda), owner of antenna
structure number 1222789 (the Antenna Structure), located in Juncos,
Puerto Rico, 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 Hacienda is apparently liable for a
forfeiture in the amount of four thousand five hundred dollars
($4,500). In addition, we direct Hacienda to submit, no later than
thirty (30) calendar days from the date of this NAL, a statement
signed under penalty of perjury stating that updated ownership
information for the Antenna Structure has been submitted to the
Commission.
II. BACKGROUND
2. According to a radio station purchase agreement submitted to the
Commission by Radio Emanuel, Inc. (Radio Emanuel), Hacienda acquired
an AM broadcast station, Station WRRE, and a
300 foot tower in Juncos, Puerto Rico from Radio Emanuel on April 16,
2003. Although antenna structure number 1222789 was not specifically
listed in the agreement, the Antenna Structure is located in Juncos,
Puerto Rico and is the location of Station WRRE's radio transmitter.
Commission records show no other antenna structure in Juncos, Puerto
Rico owned by Hacienda or Radio Emanuel. As of January 23, 2012, the
Commission's Antenna Structure Registration database listed Radio
Emanuel as the owner of the Antenna Structure.
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 owners of registered antenna
structures to immediately notify the Commission, using FCC Form 854,
upon any change in structure height or change in ownership
information. According to Commission records, Hacienda acquired the
Antenna Structure on April 16, 2003. As of January 23, 2012, Hacienda
still had not filed the required FCC Form 854 to update the Antenna
Structure's ownership. Based on the evidence before us, we find that
Hacienda apparently willfully and repeatedly violated Section 17.57
of the Rules by failing to notify the Commission of a change in
ownership for the Antenna Structure.
B. Proposed Forfeiture 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 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. Because Hacienda has failed to notify the Commission
regarding the change in ownership for over eight years, we find this
violation particularly egregious and warranting an upward adjustment
of $1,500. Maintaining current ownership contact information in the
Antenna Structure Registration database is particularly important,
because it enables the Commission and individuals to notify the
structure owner promptly in the event of a lighting failure or other
malfunction. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Hacienda is apparently liable for a forfeiture in the amount of
$4,500.
6. We direct Hacienda to submit a written statement pursuant to Section
1.16 of the Rules signed under penalty of perjury by an officer or
director of Hacienda stating that it has submitted an FCC Form 854 to
the Commission to update the ownership information for the Antenna
Structure. This statement must be provided to the San Juan Office at
the address listed in paragraph 11 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, Hacienda San Eladio,
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of four thousand five hundred dollars ($4,500) for
violation of Section 17.57 of the Commission's 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,
Hacienda San Eladio, 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. IT IS FURTHER ORDERED that Hacienda San Eladio, Inc. SHALL SUBMIT a
statement as described in paragraph 6 to the San Juan Office within
thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order.
10. 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 sent to: Chief Financial
Officer - Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.8 If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Hacienda San Eladio,
Inc. shall send electronic notification on the date said payment is
made to SCR-Response@fcc.gov.
11. 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 and include the NAL/Acct. No. referenced in the caption.
Hacienda San Eladio, Inc. also shall email the written response to
SCR-Response@fcc.gov.
12. 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.
13. 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 regular mail, to Hacienda San Eladio, Inc. at
PO Box 437, Rio Blanco, PR 00744-0437.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent
San Juan Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 17.57.
See Radio Station Purchase Agreement, Exhibit 5 to File No.
BAL-20030221AAP.
The Antenna Structure is also 95.7 meters or 314 feet in overall height
above ground. See Antenna Structure Registration database for antenna
structure number 1222789.
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.
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.
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).
See U.S. Jetting, Inc., Notice of Apparent Liability for Forfeiture and
Order, DA 12-63 (Enf. Bur. rel. Jan. 20, 2012) (upwardly adjusting
forfeiture amount due to length of apparent violation).
47 C.F.R. S: 1.16.
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.
8 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 12-281
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Federal Communications Commission DA 12-281