*Pages 1--3 from Microsoft Word - 59911.doc* Federal Communications Commission DA 06- 1929 2 4. On June 9, 2005, the station owner faxed a letter dated June 8, 2005 to the San Juan Office, which stated that he had adjusted the output power of the station to authorized levels. The letter also stated that he reoriented the FM antenna to an azimuth of 206 degrees true and would adjust it to 202 degrees true the following Friday. 5. On September 7, 2005, the San Juan Office issued a Notice of Apparent Liability for Forfeiture to West Coast in the amount of eight thousand dollars ($ 8,000) for the apparent willful and repeated violation of Section 73.1350( a) of the Rules and the apparent willful violation of Section 73.1560( b) of the Rules. 3 On October 9, 2005, West Coast submitted a response to the NAL requesting the ability to pay the forfeiture in installments. West Coast, however, failed to submit its good faith payment and its request for an installment payment plan was denied. III. DISCUSSION 6. The proposed forfeiture amount in this case was assessed in accordance with Section 503( b) of the Act, 4 Section 1.80 of the Rules, 5 and The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (“ Forfeiture Policy Statement”). In examining West Coast’s response, Section 503( b) of the Act requires that the Commission take into account 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 other such matters as justice may require. 6 7. Section 73. 1350( a) of the Rules states that each licensee is responsible for maintaining and operating its broadcast station in a manner which complies with the technical rules set forth elsewhere in this part and in accordance with the terms of the station authorization. 7 On March 14, 2005, station WNNV’s directional antenna was installed so that it was pointed northeast, approximately 20 degrees true, which is 180 degrees in the wrong direction from what is required by its station authorization. The station owner stated that the antenna had been oriented in this direction since it was installed. According to the station owner, the station did not correct this problem until after June 8, 2005. 8. Section 73. 1560( b) of the Rules states that the transmitter output power of an FM station, which is authorized for output power more than 10 watts, must be maintained as near as practicable to the authorized transmitter output power and may not be less than 90% nor more than 105% of the authorized power. 8 On March 14, 2005, station WNNV operated at 532% of its authorized power. 9. In its response to the NAL, West Coast did not deny the violations and requested to pay the forfeiture in installment payments. Based on the evidence before us, we find that West Coast willfully 9 and 3 Notice of Apparent Liability for Forfeiture, NAL/ Acct. No. 200532680004 (Enf. Bur., San Juan Office, September 7, 2005) (“ NAL”). 4 47 U. S. C. § 503( b). 5 47 C. F. R. § 1.80. 6 47 U. S. C. § 503( b)( 2)( D). 7 47 C. F. R. § 73. 1350( a). 8 47 C. F. R. § 73. 1560( b). 9 Section 312( f)( 1) of the Act, 47 U. S. C. § 312( f)( 1), which applies to violations for which forfeitures are assessed under Section 503( b) of the Act, provides that “[ t] he term ‘willful, ’ … means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act ….” See Southern California Broadcasting Co., 6 FCC Rcd 2 Federal Communications Commission DA 06- 1929 3 repeatedly 10 violated Section 73.1350( a) of the Rules by failing to operate its station in accordance with the terms of its station authorization. We also find that West Coast willfully violated Section 73.1560( b) of the Rules by failing to maintain the transmitter output power of its FM station as near as practicable to the authorized power. 10. We have examined West Coast’s response to the NAL pursuant to the statutory factors above, and in conjunction with the Forfeiture Policy Statement. As a result of our review, we find no basis for cancellation or reduction of the $8,000 forfeiture proposed for this violation. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that, pursuant to Section 503( b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311 and 1.80( f)( 4) of the Commission’s Rules, West Coast Broadcasting IS LIABLE FOR A MONETARY FORFEITURE in the amount of eight thousand dollars ($ 8,000) for willfully and repeatedly violating Section 73.1350( a) of the Rules and willfully violating Section 73. 1560( b) of the Rules. 12. Payment of the forfeiture shall be made in the manner provided for in Section 1. 80 of the Rules within 30 days of the release of this Order. If the forfeiture is not paid within the period specified, the case may be referred to the Department of Justice for collection pursuant to Section 504( a) of the Act. 11 Payment of the forfeiture must be made by 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, P. O. Box 358340, Pittsburgh, PA 15251- 8340. Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911- 6106. Requests for full payment under an installment plan should be sent to: Associate Managing Director, Financial Operations, 445 12th Street, S. W., Room 1A625, Washington, D. C. 20554. 12 13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First Class and Certified Mail Return Receipt Requested to West Coast at its record of address. FEDERAL COMMUNICATIONS COMMISSION Dennis P. Carlton Regional Director, South Central Region Enforcement Bureau 4387 (1991). 10 The 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.” 47 U. S. C. § 312( f)( 2). 11 47 U. S. C. § 504( a). 12 See 47 C. F. R. § 1.1914. 3