Federal Communications Commission Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Multicultural Radio Broadcasting, Inc. Antenna Structure Registrant Pomona, California ASR # 1014422 ) ) ) ) ) ) ) File Number: EB-09-LA-0029 NAL/Acct. No.: 200932900002 FRN: 0005086368 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: May 4, 2009 By the District Director, Los Angeles Office, Western Region, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find that Multicultural Radio Broadcasting, Inc. ("MRBI"), registered owner of antenna structure # 1014422, in Pomona, California, apparently repeatedly violated Section 17.57 of the Commission's Rules ("Rules")1 by failing to immediately notify the Commission of a change in ownership information for antenna structure # 1014422. We conclude, pursuant to Section 503(b) of the Communications Act of 1934, as amended ("Act"),2 that MRBI is apparently liable for a forfeiture in the amount of three thousand dollars ($3,000). II. BACKGROUND 2. On March 3, 2009, an agent of the Enforcement Bureau's Los Angeles Office conducted an inspection of antenna structure # 1014422,3 located near the intersection of East Olive St. and Mills Ave., Pomona, California. The agent observed the antenna structure registration number and “KAHZ” posted on a sign attached to the perimeter fencing at the tower site. A search of the Commission's Antenna Structure Registration ("ASR") database revealed that antenna structure # 1014422 was registered to SPECTRUM ENTERPRISES DBA = KMNY. 3. On March 4, 2009, an agent called Multicultural Radio Broadcasting Licensee, LLC (“MRBL”),4 licensee of AM station KAHZ and spoke to an employee who informed the agent that KMNY was the previous owner of the tower. 4. On March 5, 2009, MRBI filed an application, updating ownership information for antenna structure # 1014422. The Commission granted that application and subsequently listed MRBI as the owner of antenna structure # 1014422 on its ASR. 1 47 C.F.R. § 17.57. 2 47 U.S.C. § 503(b). 3 Antenna structure # 1014422 is required to have painting and lighting in accordance with FCC Paragraphs 1, 3, 11 and 21. 4 MRBI is the parent company of MRBL. Federal Communications Commission 2 5. On March 10, 2009, the Los Angeles Office issued a Letter of Inquiry ("LOI") to MRBL asking if it was the owner of antenna structure # 1014422. On March 24, 2009, the Los Angeles Office received a response to the LOI from MRBI/MRBL which stated that MRBI was the current owner of antenna structure # 1014422. According to the response, MRBI acquired antenna structure # 1014422 in November of 1998. III. DISCUSSION 6. 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. The term "willful" as used in Section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly.5 The term “repeated” means the commission or omission of such act more than once or for more than one day.6 7. Section 17.57 of the Rules requires the owner of an antenna structure to immediately notify the Commission, using FCC Form 854, upon any change in ownership information. We require antenna structure owners to maintain current antenna structure registration information with the Commission and post ASR numbers at the base of antenna structures to allow for easy contact if problems arise.7 8. According to the LOI Response, MRBI acquired antenna structure # 1014422 in November, 1998. As of March 3, 2009, the Commission's ASR database showed SPECTRUM ENTERPRISES DBA = KMNY (the antenna structure's previous owner) as the owner of the structure. MRBI’s application to update the ownership information in the Commission's ASR database was filed on March 5, 2009. 9. From November of 1998, until March 5, 2009, MRBI failed to notify the Commission that it had acquired antenna structure # 1014422. This violation occurred for more than one day, therefore, it is repeated. Based on the evidence before us, we find that MRBI apparently repeatedly violated Section 17.57 of the Rules by failing to immediately notify the Commission about a change in ownership for antenna structure # 1014422 in Pomona, California. 10. Pursuant to The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, ("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the base forfeiture amount for failure to file required forms or information is $3,000.8 In assessing the monetary forfeiture amount, we must also take into account the statutory factors set forth in 5 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', when used with reference to the commission or omission of any act, 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 4387 (1991). 6 Section 312(f)(2) of the Act, 47 U.S.C. § 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.” 7 See, e.g., American Tower Corporation, 16 FCC Rcd 1282 (2001) ) (Notice of Apparent Liability); American Tower Corporation, 16 FCC Rcd 14937 (2001) (Consent Decree between the Commission and American Tower Corporation ). 8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. §1.80. Federal Communications Commission 3 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, and history of prior offenses, ability to pay, and other such matters as justice may require.9 Applying the Forfeiture Policy Statement, Section 1.80, and the statutory factors to the instant case, we conclude that MRBI is apparently liable for a $3,000 forfeiture. 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, 0.314 and 1.80 of the Commission's Rules, Multicultural Radio Broadcasting, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of three thousand dollars ($3,000) for violations of Section 17.57 of the Rules.10 12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's Rules within thirty days of the release date of this Notice of Apparent Liability for Forfeiture, Multicultural Radio Broadcasting, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 13. 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/Account Number and FRN Number 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. 11 Please contact the Financial Operations Group Help Desk at 1-877-480- 3201 or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Multicultural Radio Broadcasting, Inc. will also send electronic notification on the date said payment is made to WR-Response@fcc.gov. 14. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Western Region, Los Angeles Office, 18000 Studebaker Road, Suite 660, Cerritos, California, 90703 and must include the NAL/Acct. No. referenced in the caption. An electronic copy shall be sent to WR-Response@fcc.gov. 15. 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 9 47 U.S.C. § 503(b)(2)(E). 10 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80, 17.57. 11 See 47 C.F.R. § 1.1914. Federal Communications Commission 4 financial documentation submitted. 16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by Certified Mail, Return Receipt Requested, and regular mail, to Multicultural Radio Broadcasting, Inc. FEDERAL COMMUNICATIONS COMMISSION Nader Haghighat District Director Los Angeles Office Western Region Enforcement Bureau