Federal Communications Commission	DA 21-1213


Before the
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554

In re Applications of

Carlos Lopez

For Renewal of License for
FM Translator Station K287BP
South Padre Island, Texas, and 

FM Translator Station K240FC
Conroe, Texas
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NAL/Acct. No. MB-202141410051
FRN: 0020393385

Facility ID No. 142717
File No. 0000146296

Facility ID No. 150632
File No. 0000146478

MEMORANDUM OPINION AND ORDER
AND
NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:  September 28, 2021	Released:  September 28, 2021

By the Chief, Audio Division, Media Bureau:

I. INTRODUCTION
1. The Media Bureau (Bureau) has before it the applications (Applications) File Nos. 0000146296 and 0000146478.
 of Carlos Lopez (Licensee) for renewal of licenses for FM translator stations K287BP, South Padre Island, Texas, and K240FC, Conroe, Texas (Stations).  In this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture (NAL), This NAL is issued pursuant to sections 309(k) and 503(b) of the Communications Act of 1934, as amended (Act), and section 1.80 of the Commission’s rules (Rules).  See 47 U.S.C. §§ 309(k), 503(b); 47 CFR § 1.80.  The Bureau has delegated authority to issue the NAL under section 0.283 of the Rules.  See 47 CFR § 0.283.
 we find that the Licensee apparently willfully violated section 73.3539 See 47 CFR § 73.3539.
 of the Rules by failing to timely file license renewal applications for the Stations.  Based upon our review of the facts and circumstances before us, we conclude that the Licensee is apparently liable for a monetary forfeiture in the amount of three thousand dollars ($3,000). 
II. BACKGROUND
2. Section 73.3539(a) of the Rules requires that applications for renewal of license for broadcast stations must be filed “not later than the first day of the fourth full calendar month prior to the expiration date of the license sought to be renewed.” 47 CFR § 73.3539(a).  
  Applications for renewal of the Stations’ licenses should have been filed by April 1, 2021, the first business day of the fourth full calendar month prior to the Stations’ August 1, 2021 license expiration date. See 47 CFR §§ 73.1020, 73.3539(a).  
  The Applications were not filed until May 20, 2021.  Licensee does not provide an explanation for its failure to timely file the Applications. 
III. DISCUSSION
3. Proposed Forfeiture.  This NAL is issued pursuant to section 503(b)(1)(B) of the Act.  Under that provision, a person who is found 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. 47 U.S.C. § 503(b)(1)(B).  See also 47 CFR § 1.80(a)(1).
  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. 47 U.S.C. § 312(f)(1).
  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, See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
 and the Commission has so interpreted the term in the section 503(b) context. See Southern California Broad. Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (1991), recon. denied, Memorandum Opinion and Order, 7 FCC Rcd 3454 (1992).

4. The Commission's Forfeiture Policy Statement and section 1.80(b)(9) of the Rules establish a base forfeiture amount of $3,000 for the failure to file a required form. 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, Memorandum Opinion and Order, 15 FCC Rcd 303 (1999); 47 CFR § 1.80(b)(9), note to paragraph (b)(9), Section I.
  In determining the appropriate forfeiture amount, we may adjust the base amount upward or downward by considering the factors enumerated in section 503(b)(2)(E) of the Act, including “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 such other matters as justice may require.” 47 U.S.C. § 503(b)(2)(E); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 CFR § 1.80(b)(4). 

5. In this case, the Licensee failed to file timely renewal applications for the Stations and has not provided any explanation for the untimely filings.  However, the Licensee did file the Applications prior to the expiration of the Station’s license.  Taking into consideration all of the factors required by section 503(b)(2)(E) of the Act and the Forfeiture Policy Statement, we will reduce the forfeiture from the base amount to $1,500 for the failure to file each timely license renewal application because, as translators, the Stations are providing a secondary service. See, e.g., Pirate Media Group, LLC, Memorandum Opinion and Order and Notice of Apparent Liability, 34 FCC Rcd 12280 (MB 2019) (proposing $1,500 forfeiture for untimely filed renewal application for FM translator station).
 We thus propose a total forfeiture of $3,000.
6. License Renewal Applications.  In evaluating an application for license renewal, the Commission’s decision is governed by section 309(k) of the Act. 47 U.S.C. § 309(k).
  That section provides that if, upon consideration of the application and pleadings, we find that: (1) the station has served the public interest, convenience, and necessity; (2) there have been no serious violations of the Act or the Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant the renewal application. 47 U.S.C. § 309(k)(1).  
  If, however, the licensee fails to meet that standard, the Commission may deny the application – after notice and opportunity for a hearing under section 309(e) of the Act – or grant the application “on terms and conditions that are appropriate, including a renewal for a term less than the maximum otherwise permitted.” 47 U.S.C. §§ 309(k)(2), 309(k)(3).
 
7. We find that the Licensee’s apparent violations of section 73.3539 of the Rules do not present “serious violations” warranting designation for evidentiary hearing.  Moreover, we find no evidence of violations that, when considered together, constitute a pattern of abuse. For example, we do not find here that the Licensee's Stations operation “was conducted in an exceedingly careless, inept and negligent manner and that the licensee is either incapable of correcting or unwilling to correct the operating deficiencies.”  See Heart of the Black Hills Stations, Decision, 32 FCC 2d 196, 198, para. 6 (1971).  Nor do we find on the record here that "the number, nature and extent" of the violations indicate that "the licensee cannot be relied upon to operate [the station] in the future in accordance with the requirements of its licenses and the Commission’s Rules."  Id. at 200, para. 11.  See also Center for Study and Application of Black Econ. Dev., Hearing Designation Order, 6 FCC Rcd 4622 (1991); Calvary Educ. Broad. Network, Inc., Hearing Designation Order, 7 FCC Rcd 4037 (1992).
  Further, based on our review of the Applications, we find that the Stations served the public interest, convenience, and necessity during the subject license terms.  We will therefore grant the Applications by separate action upon the conclusion of this forfeiture proceeding if there are no issues other than the apparent violations that would preclude grant of the Applications.
IV. ORDERING CLAUSES
8. 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, 47 U.S.C. § 503(b); 47 CFR § 1.80.
 Carlos Lopez, is hereby NOTIFIED of his APPARENT LIABILITY FOR FORFEITURE in the amount of three thousand dollars ($3,000) for his apparent willful violations of section 73.3539 of the Commission’s rules.
9. 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, Carlos Lopez, SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.  
10. Payment of the forfeiture must be made by credit card, ACH (Automated Clearing House) debit from a bank account using the Commission’s Fee Filer (the Commission’s online payment system), Payments made using the Commission’s Fee Filer system do not require the submission of an FCC Form 159.
 or by wire transfer.  The Commission no longer accepts forfeiture payments by check or money order.  Below are instructions that payors should follow based on the form of payment selected: For questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone at 1-877-480-3201 (option #6), or by e-mail at ARINQUIRIES@fcc.gov.  
 
· Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001.  A completed Form 159 must be faxed to the Federal Communications Commission at 202-418-2843 or e-mailed to RROGWireFaxes@fcc.gov on the same business day the wire transfer is initiated.  Failure to provide all required information in Form 159 may result in payment not being recognized as having been received.  When completing FCC Form 159, enter the Account Number in block number 23A (call sign/other ID), enter the letters “FORF” in block number 24A (payment type code), and enter in block number 11 the FRN(s) captioned above (Payor FRN). Instructions for completing the form may be obtained at https://www.fcc.gov/Forms/Form159/159.pdf. 
  For additional detail and wire transfer instructions, go to https://www.fcc.gov/licensing-databases/fees/wire-transfer.
· Payment by credit card must be made by using the Commission’s Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm.  To pay by credit card, log in using the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Pay bills” on the Fee Filer Menu, and select the bill number associated with the NAL Account – the bill number is the NAL Account number with the first two digits excluded – and then choose the “Pay by Credit Card” option.  Please note that there is a dollar limitation on credit card transactions, which cannot exceed $24,999.99.
· Payment by ACH must be made by using the Commission’s Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm.  To pay by ACH, log in using the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Pay bills” on the Fee Filer Menu and then select the bill number associated to the NAL Account–the bill number is the NAL Account number with the first two digits excluded–and choose the “Pay from Bank Account” option.  Please contact the appropriate financial institution to confirm the correct Routing Number and the correct account number from which payment will be made and verify with that financial institution that the designated account has authorization to accept ACH transactions.
11. Any request for making full payment over time under an installment plan should be sent to:  Associate Managing Director—Financial Operations, Federal Communications Commission, 45 L Street, N.E., Washington, DC 20554. See 47 CFR § 1.1914.
  Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by phone, 1-877-480-3201 (option #6), or by e-mail at ARINQUIRIES@fcc.gov.
12. Any written response seeking reduction or cancellation of the proposed forfeiture must include a detailed factual statement supported by appropriate documentation and affidavits pursuant to sections 1.16 and 1.80(f)(3) of the Commission’s rules. 47 CFR §§ 1.16 and 1.80(f)(3).
  The written response must be filed with the Office of the Secretary, Federal Communications Commission, 45 L Street NE, Washington DC 20554, ATTN: Albert Shuldiner, Chief, Audio Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.  Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail.  All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings.  This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19.  See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Filing, Public Notice, 35 FCC Rcd 2788 (2020).
 A courtesy copy emailed to Alexander.Sanjenis@fcc.gov will assist in processing the response.
· Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. 
· Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street, NE, Washington, DC 20554.
13. 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.  Inability to pay, however, is only one of several factors that the Commission will consider in determining the appropriate forfeiture, and we have discretion to not reduce or cancel the forfeiture if other prongs of section § 503(b)(2)(E) of the Communications Act of 1934, as amended, support that result. See 47 U.S.C. 503(b)(2)(E); Adrian Abramovich, Forfeiture Order, 33 FCC Rcd 4663, 4678-79, paras. 44-45 (2018).
  
14. IT IS FURTHER ORDERED that copies of this NAL shall be sent by First Class and Certified Mail, Return Receipt Requested, to Carlos Lopez, 514 Greenway Drive, Corpus Christi, TX 78412, and to his representative, Michael Celenza, 41 Kathleen Crescent, Coram, NY 11727.
						FEDERAL COMMUNICATIONS COMMISSION




						Albert Shuldiner
						Chief, Audio Division
						Media Bureau
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