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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 In Reply Refer To: 1800C1-KS 98100073 June 22, 1999 Released: June 23, 1999 CERTIFIED MAIL -- RETURN RECEIPT REQUESTED Pacific Spanish Network, Inc. Licensee, Station KLNA(FM), Dunnigan, CA 296 H Street Third Floor Chula Vista, CA 91910 In re: Station KLNA(FM), Dunnigan, CA Dear Licensee: The Chief, Mass Media Bureau, pursuant to authority delegated under Section 0.283 of the Commission Rules, has before him for consideration information suggesting that you have violated the Commission's public inspection file rule. The information raised the question of whether, due to the serious and repeated nature of this rule violation, your pending license renewal application should not be granted, but should instead be designated for evidentiary hearing. Your pleadings responsive to those contentions are also before the Chief, Mass Media Bureau. For the reasons discussed below, we have determined that forfeiture rather than designation for hearing appears appropriate. Consequently, this letter constitutes a NOTICE OF APPARENT LIABILITY FOR A FORFEITURE, pursuant to Section 503(b) of the Communications Act of 1934, as amended (the "Act"). Background Matters. COBE Laboratories, Inc. ("COBE"), a business creditor of your principal Jaime Bonilla Valdez ("Bonilla"), filed an "Objection to Renewal Applications and Petitions for Rescission of Operating Authorizations" on December 31, 1997, opposing, inter alia, the license renewal application of Station KLNA(FM), Dunnigan, California. COBE later withdrew that objection pursuant to a "comprehensive settlement" of its legal dispute with Bonilla. By letter under separate cover, we found that the settlement agreement satisfied the requirements of 47 C.F.R. 73.3588, which governs the withdrawal and dismissal of petitions to deny and informal objections. We remain obligated, however, under Booth American Company, 58 FCC 2d 553, 554 (1976), to consider the merits of COBE's charges, notwithstanding the private settlement of that dispute. See Stockholders of CBS, Inc., 11 FCC Rcd 3733, 3741 (1995) (subsequent history omitted). For the reasons set forth below, we find that the matters complained of by COBE, considered in conjunction with your response, indicate that you apparently violated the pertinent Commission rule by failing to properly maintain the station's public file. KLNA(FM) public inspection file. COBE alleges that you violated the Commission's public inspection file rule, Section 73.3526 of the Commission's Rules. In this case, COBE's investigator attempted to research the station's public inspection file and was informed by the licensee's corporate management that the file was not located at its main studio in Old Sacramento, California, but was instead kept at Farmer's Mini-Mart convenience store in Dunnigan. COBE contends, however, that when its investigator visited the store and requested to view the station's public file there on December 3, 1997, the store's sales clerk could not locate it. COBE thus surmises that the station's public file was missing, or did not exist. You dispute this account, explaining that the public file was, in fact, located in the Farmer Mini-Mart's storage room, but that the store's sales clerk, whose command of English was limited, misinterpreted the investigator's request. You explain that, in response to this event, and in order to avoid similar occurrences, you directed the station's manager that date to immediately relocate the public inspection file from the convenience store to the Dunnigan Water District Office. With regard to the file's contents, you concede that the following required information was missing on December 3, 1997, but was later included: (1) the station's license renewal application; (2) annual ownership reports; (3) annual employment reports; and (4) quarterly issues/programs statements. You admit that, as discovered during the station's review of this matter, aspects of the public inspection file were deficient for several years, due in part to the departure, "in late 1994," of Mateo Camarillo, the former corporate officer who monitored this task, and also because the station's subsequent managers were unaware of the necessity to include and update other information required to be contained in the file. You claim that, to correct this problem, the public file was reconstructed and regular filing procedures were instituted at the station in February 1998. Section 73.3526(a) of the Commission's Rules requires broadcast licensees to maintain a public file containing specific types of information related to station operations. The purpose of this requirement is to provide the public with timely information at regular intervals throughout the license period, so that concerned individuals or groups may participate effectively in Commission procedures concerning a broadcast licensee, including the evaluation of its performance. See, e.g., Liability of KLDT-TV 55, Inc., 8 FCC Rcd 6316 (1993), forfeiture reduced, 10 FCC Rcd 3198 (1995). The public file generally must be maintained within the station's community of license even if the station's main studio is located outside of that community. See 47 C.F.R. Section 73.3526(d). The file must be available to the public at any time during regular business hours. Id.; Public Notice, "Availability of Locally Maintained Records for Inspection by Members of the Public," DA 98-1895 (September 28, 1998), citing WBRN, Inc., 32 FCC 2d 729 (1971); Morton L. Berfield, Esq., 71 RR 2d 142 (FOB 1992) (the file must be immediately available for inspection by members of the public, not through appointments or at times most convenient to the licensee). In this case, it appears that the public file was not made available to a member of the public who requested to view it on December 3, 1997. That you chose to delegate certain of the station's public file maintenance responsibilities to an agent, who may have had difficulty locating the file, or in communicating with members of the requesting public, is not an exculpating or mitigating factor. Where lapses occur, neither the negligent acts or omissions of station employees or agents, nor the subsequent remedial actions undertaken by the licensee, excuse or nullify a licensee's rule violation. See Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970), citing Eleven Ten Broadcasting Corp., 33 FCC 706 (1962); Morton L. Berfield, Esq., supra; Surrey Front Range Limited Partnership, 71 RR 2d 882 (FOB 1992). Moreover, the evidence available indicates that you failed to keep the station's public inspection file complete and current as required by the rules. It appears, therefore, that you violated Section 73.3526 of the Commission's Rules. Sanction. We find that a forfeiture is warranted for the apparent violation of Section 73.3526 of the Commission's Rules, for the reasons set forth above. It appears, from the information supplied, that the public inspection file rule violation at Station KLNA(FM) first occurred in late 1994, and continued until February 1998. It also appears that you violated the rule by denying access to the file to COBE's investigator on December 3, 1997. Accordingly, pursuant to Section 503(b) of the Act, you, Pacific Spanish Network, Inc., licensee of the above-captioned radio station, are hereby advised of your apparent liability for a forfeiture of Ten Thousand Dollars ($10,000.00) for your apparent willful, repeated violation of Section 73.3526 of the Commission's Rules. In assessing this monetary forfeiture, we have taken into account the nature, circumstances, extent and gravity of the violation, as well as the degree of culpability and the station's prior enforcement history. Section 503(b)(2)(D) of the Act, 47 U.S.C. Sec. 503(b)(2)(D). We further note that the Report and Order "In the Matter of the Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines," 12 FCC Rcd 17087 (July 28, 1997) ("Forfeiture Policy Statement"), provides for a forfeiture of $10,000 as the base amount for a violation of the public inspection file rule. In the instant case, you violated the rule by failing to include required material within the public file for a substantial period of time, more than one year, and by failing to produce that file in response to a request from a member of the public. Although our records indicate that the station has maintained an unblemished past enforcement record, we believe that these factors nevertheless warrant imposition of a monetary forfeiture. See, e.g., KLDT TV 55, Inc., supra, 10 FCC Rcd at 3200 (1995), citing Southern Arkansas Radio Co., 6 FCC Rcd 5130 (MMB 1991) (monetary forfeiture appropriate where, as here, serious public file omissions occur). Therefore, we believe that imposition of the base forfeiture amount for this violation is warranted. In regard to this forfeiture proceeding, you are afforded a period of thirty (30) days from the date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced should include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R. Section 1.80(f)(3). Other relevant provisions of Section 1.80 are summarized in the attachment to this letter. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau cc: H. Russell, III G. LaVerne Brooks Howard A. Topel, Esq. Theodore D. Kramer, Esq.