**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-08-SD-0088      |
|                                  |   |                                 |
| Playa Del Sol Broadcasters       | ) | NAL/Acct. No.: 200832940003     |
|                                  |   |                                 |
| Licensee of K238AK               | ) | FRN: 0004256426                 |
|                                  |   |                                 |
| Palm Desert, California          | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: July 31, 2008

By the District Director, San Diego Office, Western Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Playa Del Sol Broadcasters (\"Playa\"), licensee of FM
    Broadcast Translator station K238AK, in Palm Desert, California,
    apparently willfully and repeatedly violated Section 74.1236(c) of
    the Commission\'s Rules (\"Rules\")[^1] by failing to ensure that
    emissions appearing outside the assigned channel greater than 600
    kHz from the center frequency had a minimum attenuation below the
    unmodulated carrier of 60 dB. We conclude, pursuant to Section
    503(b) of the Communications Act of 1934, as amended (\"Act\"),[^2]
    that Playa is apparently liable for a forfeiture in the amount of
    four thousand dollars (\$4,000).

# BACKGROUND

2.  On March 12, 2008, the Enforcement Bureau's San Diego office
    received a complaint of interference from the Riverside County
    Sheriff's Department ("Sheriff's Department") regarding an aviation
    frequency, 122.875 MHz, in the Indian Wells, California area. The
    Sheriff's Department identified the interference as having the same
    audio as station KRCK, 97.7 MHz, Mecca, California, which is
    licensed to Playa del Sol Broadcasters. Playa was then contacted by
    the San Diego Office by telephone and advised of the complaint from
    the Riverside County Sherriff's Department which had been received
    and that all transmitter equipment operated by Playa should be
    examined to determine if that was the cause.

3.  On March 13, 2008, an agent from the San Diego Office traveled to
    the Indian Wells, California, area to examine the interference
    complaint. The agent was able to detect the audio of KRCK on three
    separate frequencies in the VHF aviation band: 109.5 MHz, 122.2 MHz,
    and 136.1 MHz. The agent determined that the three signals were
    emanating from the studio of KRCK at 73-733 Fred Waring Drive, Palm
    Desert, California, which is collocated with FM Broadcast Translator
    station K238AK. The agent noted that FM Broadcast Translator station
    K238AK was rebroadcasting the audio of FM Broadcast station KRCK.
    Field strength measurements were made by the agent on the three
    signals found on 109.5 MHz, 122.2 MHz, and 136.1 MHz, as well as the
    assigned channel of K238AK of 95.5 MHz. The agent determined that
    the 109.5 MHz signal was attenuated 18.0 db from the carrier of
    K238AK, the 122.2 MHz signal was attenuated 30.8 db from the carrier
    of K238AK and the 136.1 MHz signal was attenuated 20.9 db from the
    carrier of K238AK

4.  On March 14, 2008, the agent returned to the studio location of KRCK
    and the transmitter site of K238AK and conducted another set of
    measurements on the three previously observed signals transmitting
    KRCK audio on VHF aviation frequencies. The results of those
    measurements are as follows: the 109.5 MHz signal was attenuated
    19.8 db from the carrier of K238AK, the 122.2 MHz signal was
    attenuated 23.4 db from the carrier of K238AK and the 136.1 MHz
    signal was attenuated 18.0 db from the carrier of K238AK. The agent
    then inspected FM Broadcast Translator station K238AK at the studio
    location of KRCK. During the inspection, the agent requested that
    the translator station be taken off the air and by using portable
    measurement equipment, determined that all three signals previously
    measured in the aviation band went off the air and returned whenever
    the K238AK transmitter was switched off. The agent determined that
    the measured signals on 109.5 MHz, 122.2 MHz, and 136.1 MHz, were
    spurious emissions emanating from station K238AK.

# DISCUSSION

5.  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.[^3] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^4]

6.  Section 74.1236(c) of the Rules requires that "(T)he power of the
    emissions appearing outside the assigned channel shall be attenuated
    below the total power of the emission as follows: ... (Distance of
    emission from center frequency) Over 600 kHz .......... (Minimum
    attenuation below unmodulated carrier) 60 db." The frequencies of
    the spurious emissions, 109.5 MHz, 122.2 MHz, and 136.1 MHz, are
    each more than 600 kHz from the K238AK assigned channel of 95.5 MHz.
    Consequently, each of the spurious emissions was required to be
    attenuated at least 60 db below the K238AK fundamental frequency of
    95.5 MHz. On both March 13, 2008, and March 14, 2008, none of the
    three spurious emissions on 109.5 MHz, 122.2 MHz, and 136.1 MHz,
    were attenuated 60 db or more from the K238AK fundamental frequency.
    Playa was notified by the San Diego Office that transmissions
    containing the audio of station KRCK were transmitting in the
    aviation band. Further investigation by the San Diego Office
    revealed that a translator station, K238AK, licensed to Playa was
    the source of the spurious emissions on 109.5 MHz, 122.2 MHz, and
    136.1 MHz . Playa was advised by the San Diego Office of the
    transmissions of the KRCK signal on aviation frequencies on March
    12, 2008, yet Playa failed to take action to respond to and
    eliminate the continuing unauthorized transmissions for more than
    two days. Therefore, Playa's violation was willful and repeated.
    Based on the evidence before us, we find that Playa apparently
    willfully and repeatedly violated Section 74.1236(c) of the Rules by
    failing to adequately attenuate by at least 60 db the spurious
    emissions from its translator station, K238AK, on 109.5 MHz, 122.2
    MHz, and 136.1 MHz.

7.  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 unauthorized emissions
    is \$4,000.[^5] In assessing the monetary forfeiture amount, we must
    also take into account the statutory factors set forth in 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.[^6]
    Applying the *Forfeiture Policy Statement*, Section 1.80, and the
    statutory factors to the instant case, we conclude that Playa is
    apparently liable for a \$4,000 forfeiture.

# ORDERING CLAUSES

8.  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, Playa del Sol
    Broadcasters is hereby **NOTIFIED** of this **APPARENT LIABILITY FOR
    A FORFEITURE** in the amount of four thousand dollars (\$4,000) for
    violations of Section 74.1236(c) of the Rules.[^7]

9.  **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, Playa del Sol
    Broadcasters **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 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. [^8]  Please contact the Financial Operations Group
    Help Desk at 1-877-480-3201 or Email: <ARINQUIRIES@fcc.gov> with any
    questions regarding payment procedures. Playa Del Sol Broadcasters
    shall also send electronic notification on the date said payment is
    made to <WR-Response@fcc.gov>.

11. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, San Diego Office,
    4542 Ruffner St, Suite 370, San Diego, California 92111and must
    include the NAL/Acct. No. referenced in the caption. An electronic
    copy shall be sent to <WR-Response@fcc.gov>.

12. 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 financial documentation submitted.

13. **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 Playa del Sol Broadcasters.

FEDERAL COMMUNICATIONS COMMISSION

William R. Zears Jr.

District Director,

San Diego District Office

Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 74.1236(c).

[^2]: 47 U.S.C. § 503(b).

[^3]: 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).

[^4]: 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."

[^5]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^6]: 47 U.S.C. § 503(b)(2)(E).

[^7]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    74.1236(c).

[^8]: *See* 47 C.F.R. § 1.1914.