In re Ace of Hearts Disc Jockey Service, Inc., EB-09-TP-0185
| Decision Date | 08 February 2013 |
| Docket Number | DA 13-177,EB-09-TP-0185 |
| Parties | In the Matter of Ace of Hearts Disc Jockey Service, Inc. Licensee of Station W277AN Cape Canaveral, Florida |
| Court | Federal Communications Commission Decisions |
Adopted: February 8, 2013
NAL/Acct. No.: 201132700003 FRN: 0008590853 Facility ID No.: 143943
P Michele Ellison Chief, Enforcement Bureau.
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, issued pursuant to Section 405 of the Communications Act of 1934, as amended (Act) [1] and Section 1.106 of the Commission's rules (Rules) [2]we deny the petition for reconsideration (Petition) filed by Ace of Hearts Disc Jockey Service, Inc. (Ace), licensee of translator station W277AN (Station) in Cape Canaveral, Florida.[3] Ace seeks reconsideration of the Forfeiture Order issued by the Enforcement Bureau's South Central Region in this proceeding.[4] The Forfeiture Order imposed a monetary forfeiture in the amount of eleven thousand dollars ($11, 000) against Ace for willfully and repeatedly violating Sections 73.1350 and 74.1235(e) of the Rules.[5] The noted violations involved Ace operating its Station with unauthorized antenna equipment and with more than authorized power. As discussed below, we uphold the Bureau's prior ruling and affirm the $11, 000 forfeiture.
II. BACKGROUND
2. On March 8, 2011, the Enforcement Bureau's Tampa Office (Tampa Office) issued Ace a Notice of Apparent Liability for Forfeiture and Order (NAL) for its overpower operation and use of an unauthorized transmitting antenna system, in violation of Sections 74.1235(e) and 73.1350 of the Rules, respectively.[6] As discussed in detail in the NAL, on October 28, 2009, and on February 7, September 22, and September 24, 2010, agents from the Tampa Office measured the field strength of Station W277AN's signal and determined that the Station was operating with more than its authorized transmitter power output (TPO).[7] On February 26 and September 22, 2010, during an on site investigation, agents from the Tampa Office observed that the meter on the Station's amplifier showed the Station operating with more than its authorized TPO.[8] In addition, on February 7, February 26, and September 22, 2010, agents from the Tampa Office confirmed that a photograph taken on October 28, 2009 was accurate and that the Station was using a two-antenna array, although its authorization specified use of only one antenna.[9] In view of the record evidence, the NAL proposed a $13, 000 forfeiture against Ace for violating Sections 74.1235(e) and 73.1350 of the Rules.[10] Ace responded to the NAL, disputed some of the findings, and requested cancellation or reduction of the proposed forfeiture.[11]
3. On April 23, 2012, the Bureau's South Central Region issued a Forfeiture Order, which affirmed the NAL's findings, but reduced the $13, 000 proposed forfeiture to $11, 000 after further consideration of the factual circumstances surrounding the antenna equipment violation.[12] The Bureau, however, rejected Ace's claim that it had a history of overall compliance with the Rules, given contrary record evidence.[13] Further, the Bureau rejected Ace's inability to pay claim because Ace failed to provide sufficient evidence to support and justify its request.[14]
4. On May 11, 2012, Ace filed the instant Petition, urging the Bureau to reconsider its decisions in the Forfeiture Order. Specifically, Ace asks the Bureau to reduce the forfeiture, and states that it "agrees to enter into an installment payment plan."[15] In support of its request for reconsideration, Ace asserts: [16] Ace also asserts that its request for reduction based on history of compliance with the rules should be granted because, contrary to what was stated in the Forfeiture Order, it was not provided multiple warnings of the overpower violation.[17]Finally, Ace asks the Bureau to reduce the $11, 000 forfeiture based on inability to pay; in this regard, Ace asserts that it has been in bankruptcy preparations and that its principal owner, Randy Bennett, is in foreclosure proceedings.[18]
III. DISCUSSION
5. Petitions for reconsideration are granted only in limited circumstances. Reconsideration is appropriate only where the petitioner either demonstrates a material error or omission in the underlying order, or raises additional facts not known or not existing until after the petitioner's last opportunity to present such matters.[19] A petition for reconsideration that reiterates arguments that were previously considered and rejected will be denied.[20] As discussed below, we find that Ace has not provided any basis to warrant reconsideration.
6. In the Forfeiture Order, the Bureau affirmed the NAL's finding that Ace violated Section 73.1350 of the Rules by operating its Station with an unauthorized antenna system-i.e., by operating a two-antenna array transmission system when its license authorized operation using only one antenna. Agents from the Bureau's Tampa Office confirmed this violation based on photographs taken on October 28, 2009, and based on direct observations on February 7, 2010, February 26, 2010, and September 22, 2010.[21] As discussed in the Forfeiture Order, Ace asserted that it had always intended to use a two-antenna array, but mistakenly submitted, as a result of a typographical error, a license application with an antenna code of MP-1 (reflecting a request for one antenna), rather than MP-2 (reflecting a request for a two-antenna array).[22] The Bureau did not find the asserted typographical error a sufficient basis to excuse the violation, and reminded Ace that it remained responsible for reviewing and ensuring the accuracy of the information contained in the authorization, and for operating in conformity with its authorization.[23]
The Bureau, however, reduced the forfeiture amount for the antenna violation from $5, 000 to $3, 000, given other factors that served to mitigate the violation.[24]
7. In its Petition, Ace contends that the Bureau erred in finding that Ace violated Section 73.1350, arguing that any discrepancies about its antenna authorization was not its fault, but instead due to Commission delay in granting the various applications that it filed as of February 2010.[25] We deny Ace's request for reconsideration of the Bureau's finding on this issue. A licensee cannot operate in conformity with its license modification application based on the assumption that the application will later be granted. Until such modification application has been granted, licensees are expected to operate in strict conformity with its current license authorization, unless it has been granted special temporary authority in the interim.[26] In this case, Ace's license, during the dates of the violation in 2009 and 2010, authorized use of only one antenna (not two). Therefore, the Bureau properly determined that anytime Ace operated its Station using a two-antenna array, it was in violation of Section 73.1350 notwithstanding the pendency of any corrective application.
8. Furthermore, even if we were to disregard (which we do not) any antenna violations after Ace filed its modification application in February 2010, the record is still replete with prior violations of Section 73.1350. Agents from the Tampa Office confirmed that Ace used an unauthorized antenna system on October 28, 2009, and Ace admitted that its violation had been continuous since its operations began.[27] Thus, Ace cannot dispute that it repeatedly operated its station with an unauthorized antenna system even before it filed its modification application. For these reasons, we find no basis for reconsideration of this issue and, therefore, affirm the conclusion in the Forfeiture Order that Ace willfully and repeatedly violated Section 73.1350 of the Rules.
9. We also deny Ace's request that we reconsider its history of compliance claim so as to justify a reduction in the forfeiture amount. It is undisputed that Ace was warned by agents from the Tampa Office about its overpower operations on February 6, 2010, and that this warning preceded the NAL. The record also shows that Ace was observed by agents from the Tampa Office operating its station overpower on February 7, February 26, September 22, and September 24, 2010.[28] Therefore, we agree with the Forfeiture Order's finding that, "given the multiple times in which it was found in violation of Section 74.1235(e) after it had received [a] warning of the violation, it is factually incorrect for Ace to assert that it has a history of compliance."[29]
10. Furthermore, as discussed in the Forfeiture Order, it was appropriate to reject Ace's history of compliance claim because of case precedent indicating that Mr. Bennett, Ace's principal owner, was involved in an unauthorized transfer of a station even before the agents investigated Ace for possible violations of Sections 73.1350 and 74.1235(e) of the Rules.[30] We note that Ace did not dispute this finding in its Petition; and this fact, alone, serves as a sufficient basis for rejecting Ace's claim that it has a history of overall compliance with FCC requirements. We therefore affirm the Forfeiture Order's denial of any forfeiture reduction based on Ace's assertion that it has a history of overall compliance.
11. Finally, we deny Ace's renewed request for reduction of the forfeiture...
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