Federal Communications Commission	DA 22-108


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

In re Application of

Unity Broadcasting LLC

For License to Cover
FM Translator Station W264DV
Kissimmee, FL
)
)
)
)
)
)
)


Facility ID No. 202624
NAL/Acct. No. MB-202241410003
FRN: 0024971897
File No. 0000180541

MEMORANDUM OPINION AND ORDER
AND
NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: February 4, 2022  	Released: February 4, 2022  

By the Chief, Audio Division, Media Bureau:

I. INTRODUCTION
1. The Media Bureau (Bureau) has before it the above-captioned application (Application) of Unity Broadcasting LLC (Permittee), for a license to cover FM translator station W264DV, Kissimmee, Florida (Translator).  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 Permittee apparently willfully violated section 73.3598 See 47 C.F.R. § 73.3598.
 of the Rules by failing to timely file a license to cover application, and willfully and repeatedly violated section 301 of the Act, See 47 U.S.C. § 301.
 by engaging in unauthorized operation of the Translator after its construction permit had expired.  Based upon our review of the facts and circumstances before us, we conclude that the Permittee is apparently liable for a monetary forfeiture in the amount of three thousand five hundred dollars ($3,500).
II. BACKGROUND
2. The Bureau issued Permittee a construction permit for the Translator on November 27, 2018, with an expiration date of November 27, 2021 (Permit). File Nos. BNPFT-20181212AAI; BMPFT-20190409AAC.
  However, Permittee did not file a covering license application by November 27, 2021, and the Permit expired on its own terms that day pursuant to section 73.3598(e) of the Rules. 47 CFR § 73.3598(e) (“Any construction permit for which construction has not been completed and for which an application for license has not been filed, shall be automatically forfeited upon expiration without any further affirmative cancellation by the Commission.”).
  
3. On January 21, 2022, Permittee filed a covering license application. File No. 180541 (filed Jan. 21, 2022). 
  Permittee requested a waiver of section 73.3598 of the Rules in which it demonstrates that the Translator was constructed prior to the expiration of the Permit. Application at Waiver.  See also Clear Channel Broadcasting Licenses, Inc., Memorandum Opinion and Order, 26 FCC Rcd 7153, 7157, para 11 (2011) (Clear Channel) (upholding as proper the Bureau’s practice of processing a late-filed covering license application for facilities fully completed by the construction deadline through the waiver process); Cranesville Block Company, Inc., Letter Order, 27 FCC Rcd 2018, 2019-20 (MB 2012) (dismissing a petition for reconsideration of an expired construction permit as procedurally improper and treating it instead as a request for waiver).
  Permittee explains that it had acquired all the required equipment, was ready to construct and intended to perform the installation the week of November 22, 2021, but the owners of the Translator’s tower site did not apply for a building permit from the City of Orlando until November 19, 2021. Waiver at 1.
  The building permit was not granted by November 23rd, attempts to contact the permitting office on November 24th were futile, and the office was closed on November 25th and November 26th in observance of Thanksgiving. Id.
  
4. Permittee states that its counsel contacted the Bureau staff on November 26th—the day before the Permit expired—to request tolling. Id. at 1-2.  See also Email from John C. Trent, Esq., to Christian Parker, Audio Division, FCC Media Bureau (Nov. 26, 2021, 5:05 PM EST).
  Permittee also states that the tower owner granted it permission to construct the Translator on November 27th—which was done—but not to operate the Translator until a building permit was issued. Waiver at 2.
  A building permit was finally issued on December 22nd, but Permittee’s president was hospitalized with COVID-19 and failed to file a covering license until January 21st. Id.

III. DISCUSSION
5. Proposed Forfeiture.  The Permittee failed to timely file a covering license application as required by section 73.3598(e) of the Rules, and began Translator operations with the permitted facilities on December 22, 2021, and did not seek special temporary authority to operate with those facilities.  Thus, Permittee engaged in unauthorized operation for a month in violation of section 301 of the Act before it filed the appropriate covering license application on January 21, 2022.
6. 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).
  Section 312(f)(2) 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.” 47 U.S.C. § 312(f)(2). 
  
7. The Commission's Forfeiture Policy Statement and section 1.80(b)(10) 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)(10), note to paragraph (b)(10), Section I.
  The guidelines also specify a base forfeiture amount of $10,000 for construction and/or operation without an instrument of authorization for the service. A broadcast station requires an authorization from the Commission to operate.  See 47 U.S.C. § 301.
  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). 
  
8. Based on our review of the facts and circumstances, we tentatively find that a $7,000 base forfeiture is appropriate. See, e.g., WKLC, Inc., Memorandum Opinion and Order and Notice of Apparent Liability, 26 FCC Rcd 11001 (MB 2011) (proposing $7,000 forfeiture for violation of section 73.3598 of the Rules and section 301 of the Act).  See also Clear Channel, 26 FCC Rcd at 7157 (“We note that the staff may also issue Notices of Apparent Liability for ‘failure to file a required form’ as authorized by Section 503(b)(1)(B) of the Communications Act of 1934, as amended (the ‘Act’) and Section 1.80 of the Rules, for such violations of covering license application filing deadlines or take other enforcement action.”).
  Licensee failed to file a timely covering license application for the Translator and engaged in unauthorized operation of the Translator after it began operations on December 22, 2021.  Moreover, Permittee’s counsel did not contact the Bureau staff until 5:05 PM on the Friday before the Permit expired to request tolling, even though Permitee was aware several days earlier that it required additional time in which to construct, See 47 CFR §§ 73.3598(c) (a permittee must notify the Commission as promptly as possible and, in any event, within 30 days of a tolling event) and 73.3598(e) (construction permit is automatically forfeited upon the expiration date if construction has not been completed and a license application has not been filed).
 and there is no record Permitee ever properly filed the tolling request as instructed to by the staff. See Email from James Bradshaw, Audio Division, FCC Media Bureau, to John C. Trent, Esq. (Nov. 29, 2021, 3:53 PM EST).
  Finally, although we are sympathetic to the Permittee’s President’s health issues, the Commission has long held that “licensees are responsible for the acts and omissions of their employees and independent contractors,” and has consistently “refused to excuse licensees from forfeiture penalties where the actions of employees or independent contractors have resulted in violations” even when those violation were attributable to the illness of an employee of the licensee.  Whidbey Island Center for the Arts, Forfeiture Order, 25 FCC Rcd 8204 at 8205, para. 6 (MB 2010) (rejecting argument that proposed forfeiture for untimely filing of renewal application should be reduced or cancelled based on the health issues and departure of the party responsible for Commission filings).
  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 $3,500 because, as a translator, the Translator is 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) (reducing $3,000 base forfeiture to $1,500 for untimely filed renewal application filed by FM translator station).
  We will grant the Application by separate action upon the conclusion of this forfeiture proceeding if there are no issues other than the apparent violation that would preclude grant of the Application.
IV. ORDERING CLAUSES
9. 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.
 Unity Broadcasting LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of three thousand five hundred dollars ($3,500) for its apparent willful violation of section 73.3598 of the Commission’s rules and section 301 of the Communications Act of 1934, as amended.
10. 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, Unity Broadcasting LLC SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.  
11. Payment of the forfeiture must be made by credit card, ACH (Automated Clearing House) debit from a bank account using CORES (the Commission’s online payment system), Payments made using CORES do not require the submission of an FCC Form 159.
 or by wire transfer.  Payments by check or money order to pay a forfeiture are no longer accepted.  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 Registration System (CORES) at https://apps.fcc.gov/cores/userLogin.do.  To pay by credit card, log-in using the FCC Username associated to the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Manage Existing FRNs | FRN Financial | Bills & Fees” from the CORES Menu, then select FRN Financial and the view/make payments option next to the FRN.  Select the “Open Bills” tab and find the bill number associated with the NAL/Acct. No.  The bill number is the  NAL Acct. No. (e.g., NAL/Acct. No. 1912345678 would be associated with FCC Bill Number 1912345678).  After selecting the bill for payment, choose the “Pay by Credit Card” option.  Please note that there is a $24,999.99 limit on credit card transactions.
· Payment by ACH must be made by using the Commission’s Registration System (CORES) at https://apps.fcc.gov/cores/paymentFrnLogin.do.  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 “Manage Existing FRNs | FRN Financial | Bills & Fees” on the CORES Menu, then select FRN Financial and the view/make payments option next to the FRN.  Select the “Open Bills” tab and find the bill number associated with the NAL/Acct. No.  The bill number is the NAL/Acct. No. (e.g., NAL/Acct. No. 1912345678 would be associated with FCC Bill Number 1912345678).  Finally, 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.
12. 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.
13. 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(g)(3) of the Commission’s rules. 47 CFR §§ 1.16 and 1.80(g)(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.
14. 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).
  
15. IT IS FURTHER ORDERED that copies of this NAL shall be sent by First Class and Certified Mail, Return Receipt Requested, to Unity Broadcasting LLC, c/o Shanti Persaud, 50 S. Clarke Road, Ocoee, FL 34761, and to its counsel, John C. Trent, Putbrese, Hunsaker and Trent, PC, 200 South Church Street, Woodstock, VA 22664. 
						FEDERAL COMMUNICATIONS COMMISSION




						Albert Shuldiner
						Chief, Audio Division
						Media Bureau
2