Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-06-SF-198       |
|                                  |   |                                 |
| Del Rosario Talpa, Inc.          | ) | NAL/Acct. No.: 200732960002     |
|                                  |   |                                 |
| Licensee of Station KNCR(AM)     | ) | FRN: 0013789524                 |
|                                  |   |                                 |
| Fortuna, California              | ) |                                 |
|                                  |   |                                 |
| Facility ID \# 39472             | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted: June 15, 2007 Released: June 19, 2007**

By the Regional Director, Western Region, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of three thousand, two hundred dollars
    (\$3,200) to Del Rosario Talpa, Inc. ("Del Rosario Talpa"), licensee
    of AM broadcast station KNCR, in Fortuna, California, for willfully
    and repeatedly violating Section 73.1350(a) of the Commission's
    Rules ("Rules").[^1] On December 22, 2006, the Enforcement Bureau's
    San Francisco Office issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") in the amount of \$4,000 to Del Rosario Talpa
    for operating station KNCR at an unauthorized location.[^2] In this
    *Order*, we consider Del Rosario Talpa's arguments that its
    violation was actually of Section 73.1680 of the Rules; that Del
    Rosario Talpa will have financial difficulty paying the forfeiture
    amount; and that the forfeiture amount should be reduced based on
    Del Rosario Talpa's history of compliance with the Commission's
    Rules.

# BACKGROUND

2.  On August 22, 2006, in response to a complaint, an agent from the
    Enforcement Bureau's San Francisco Office monitored KNCR's signal on
    frequency 1090 kHz in Fortuna, California. Using radio direction
    finding equipment, the agent traced the source of KNCR's broadcast
    signal to an antenna located at 2200 Smith Lane, Fortuna,
    California. Later that day, the agent conducted an inspection of the
    KNCR studio. The inspection of the KNCR studio at 2200 Smith Lane
    revealed that KNCR was transmitting from that location.

3.  According to KNCR's license, the KNCR transmitter should be located
    at 3560 Hillras Way, Fortuna, California, with coordinates of 40º
    33′ 30″ north latitude, 124 º 07′ 24″ west longitude.[^3] The San
    Francisco agent's inspection revealed that the coordinates of the
    current location of the KNCR transmitter at 2200 Smith Lane,
    Fortuna, California, are approximately 40° 35'32" north latitude and
    124° 08'40" west longitude, approximately two miles from its
    authorized location.

4.  On October 16, 2006, after being contacted by the San Francisco
    agent concerning the unlicensed KNCR location, the KNCR consulting
    engineer informed the agent that KNCR had been operating its
    transmitter from the 2200 Smith Lane location since November
    6, 2005. The consulting engineer also informed the agent that KNCR
    was in the process of filing for a Special Temporary Authority
    ("STA") from the Commission to use that location.[^4]

5.  On December 22, 2006, the San Francisco Office issued a *NAL* in the
    amount of \$4,000 to Del Rosario Talpa, finding that Del Rosario
    Talpa had apparently willfully and repeatedly operated KNCR from an
    unauthorized location. Del Rosario Talpa filed a response
    ("*Response*") on February 20, 2007, arguing that the only violation
    committed by Del Rosario Talpa was its failure to notify the
    Commission within 24 hours of beginning operation with emergency
    facilities. Del Rosario Talpa also argues that it will have
    financial difficulty paying the forfeiture amount; and that the
    forfeiture amount should be reduced based on its history of
    compliance. [^5] Finally, Del Rosario Talpa states that it requested
    an STA to operate from its current location on October 24, 2006 and
    that this STA was granted on November 7, 2006.

# III. DISCUSSION

6.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^6] Section 1.80 of the
    Rules,[^7] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines* ("*Forfeiture Policy Statement"*).[^8] In examining Del
    Rosario Talpa's response, Section 503(b) of the Act requires that
    the Commission take into account 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 other such matters as justice may require.[^9]

7.  Section 73.1350(a) of the Commission's rules states "\[e\]ach
    licensee is responsible for maintaining and operating its broadcast
    station in a manner which complies with the technical rules . . .
    and in accordance with the terms of the station authorization."[^10]
    On August 22, 2006, the San Francisco agent observed that KNCR was
    transmitting from a location that was not authorized on the KNCR
    license. KNCR staff informed the San Francisco agent that the
    station had been transmitting from that location since
    November, 2005. Since the agent's inspection and inquiry, Del
    Rosario Talpa, Inc., has filed for and received an STA for KNCR. We
    note, as the San Francisco Office stated in the *NAL* that the
    Commission has stated in the past that a licensee is expected to
    correct errors when they are brought to the licensee's attention and
    that such correction is not grounds for a downward adjustment in the
    forfeiture.[^11]

8.  Del Rosario Talpa states that it moved the KNCR transmitter when the
    station was evicted on short notice from its licensed site. It
    consequently set up an "emergency antenna" and therefore argues that
    its violation, if any, was not of Section 73.1350(a) of the Rule,
    but of 73.1680 of the Rules. Section 73.1680 defines an "emergency
    antenna" as "one that is erected for temporary use after the
    authorized main and auxiliary antennas are damaged and cannot be
    used."[^12] The Rule also states that "\[p\]rior authority from the
    FCC Is not required by licensees and permittees to erect and
    commence operations using an emergency antenna to restore program
    service to the public. However, an informal letter request to
    continue operation with the emergency antenna must be made with in
    24 hours to the FCC . . . ."[^13] Rosario Del Talpa acknowledges
    that it did not send notice to the FCC within 24 hours of beginning
    its use of its emergency antenna, therefore, we agree that Rosario
    Del Talpa's actions violated Section 73.1680 of the Rules. However,
    we find that Rosario Del Talpa never gave notice to the Commission
    concerning the new location of its station, until the station was
    inspected by the San Francisco agent on August 22, 2006. Therefore,
    Rosario Del Talpa's continued operation from an unauthorized
    location for a period of over nine months also resulted in a
    violation of Section 73.1350(a) of the Rules. Rosario Del Talpa also
    argues that it should not be liable for a forfeiture because its
    operation from the temporary location provides no competitive
    benefit. We disagree. Operation consistent with the terms of one's
    license is fundamental to the privilege of holding a license.[^14]

9.  Rosario Del Talpa also states that it will have financial difficulty
    paying the proposed forfeiture amount. Despite being given repeated
    extensions of time to produce financial data to support this claim,
    Rosario Del Talpa has failed to submit any financial data.[^15] In
    analyzing a financial hardship claim, the Commission generally has
    looked to gross revenues as a reasonable and appropriate yardstick
    in determining whether a licensee is able to pay the assessed
    forfeiture.[^16] Because Rosario Del Talpa has submitted no data to
    support its claim, we are unable to consider it.

10. Rosario Del Talpa also states that it has a history of compliance
    with the Commission's Rules. We have reviewed our records and we
    concur. Consequently, we reduce Rosario Del Talpa's forfeiture
    amount from \$4,000 to \$3,200.

11. Based on the information before us, having examined it according to
    the statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement,* we find that reduction of the proposed forfeiture
    to \$3,200 is warranted.

# IV. ORDERING CLAUSES

12. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended ("Act"), and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, Rosario Del
    Talpa, Inc., **IS LIABLE FOR A MONETARY FORFEITURE** in the amount
    of \$3,200 for willfully and repeatedly violating Section 73.1350(a)
    of the Rules.[^17]

13. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    *Order*. If the forfeiture is not paid within the period specified,
    the case may be referred to the Department of Justice for collection
    pursuant to Section 504(a) of the Act.[^18] 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/Acct. No. and FRN No. referenced above. 
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911- 6106. Requests for full payment under an installment
    plan should be sent to: Associate Managing Director -- Financial
    Operations, Room 1A625, 445 12th Street, S.W., Washington, D.C.
    20554.[^19]

14. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Rosario Del Talpa, Inc., at its address of record.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 73.1350(a).

[^2]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200732960002 (Enf. Bur., Western Region, San Francisco Office,
    released December 22, 2006).

[^3]: On August 22, 2006, the agent attempted to inspect the KNCR main
    antenna location at 3560 Hillras Way, Fortuna, California and
    observed that the transmitting antenna was not constructed at this
    geographic location.

[^4]: On November 7, 2006, the STA application, File No. BSTA -
    20061024AGJ, was granted by the Media Bureau. This STA expired on
    May 7, 2007. Del Rosario Talpa filed for an extension of the STA on
    May 18, 2007, File No. BSTA - 20070501AHT.

[^5]: Del Rosario Talpa requested and received a 30 day extension to
    respond to the *NAL*.

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. § 1.80.

[^8]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^9]: 47 U.S.C. § 503(b)(2)(E).

[^10]: 47 C.F.R. § 73.1350(a).

[^11]: *AT&T Wireless Services, Inc.* 17 FCC Rcd 21866, 21871-76 (2002).

[^12]: 47 C.F.R. § 73.1680(a).

[^13]: 47 C.F.R. § 73.1680(b).

[^14]: *See, e.g.,* *Red Lion Broadcasting Co. v. FCC*, 395 U.S. 367
    (1969).

[^15]: In its *Response*, Rosario Del Talpa stated that it would
    supplement its filing with financial data. No supplemental filing
    was ever received.

[^16]: *See PLB Communications of Virginia, Inc.*, 7 FCC Rcd 2088
    (1992).

[^17]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4),
    73.1350(a).

[^18]: 47 U.S.C. § 504(a).

[^19]: *See* 47 C.F.R. § 1.1914.