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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-DL-229
Paulino Bernal Evangelism, Inc. ) NAL/Acct. No.200332500008
Licensee of KBRN(AM) in Boerne, ) FRN 0005733662
McAllen, Texas )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 19, 2003
By the Enforcement Bureau, Dallas Office:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Paulino Bernal Evangelism,
Inc. (``PAULINO''), licensee of radio station KBRN, Boerne,
Texas, apparently liable for a forfeiture in the amount of
twenty-five thousand dollars ($25,000) for willful violation
of Sections 73.1125, 11.35(a), and 73.3527(c)(1) of the
Commission's Rules (``Rules''). Specifically, we find
PAULINO apparently liable for failure to maintain a main
studio in the community of license, failure to install and
maintain operational Emergency Alert System (``EAS'')
equipment during the times the station was in operation, and
failure to make available a public inspection file.
2. On October 28, 2003 an agent from the FCC
Enforcement Bureau's Dallas Field Office (``Dallas Office'')
attempted an inspection of AM broadcast station KBRN in
Boerne, Texas. The FCC agent could not locate a KBRN studio
in Boerne, Texas, the community of license. The station had
no local or tool-free telephone number top contact the
station. Further investigation revealed the only presence
in Boerne, Texas consisted of an AM radio transmission tower
and a shed containing transmitting equipment. The
transmitter shed was located on private property behind two
locked fences and inaccessible to the public. Additionally,
PAULINO did not have any paid employee presence in Boerne,
3. On October 28, 2003, Mr. Gilbert Martinez,
technical representative for PAULINO advised the Dallas FCC
agent that the transmitter shed also served as KBRN's main
studio. Additionally, Mr. Martinez stated the only station
personnel in Boerne, Texas was Mr. Egar Gutierrez, an unpaid
volunteer from a local church. Mr. Martinez further stated
that Mr. Gutierrez would make the public inspection file
available for review or inspection for anyone who wished to
review or inspect it.
4. On October 28, 2003, the Dallas FCC agent phoned
Mr. Egar Gutierrez, an unpaid volunteer representing
PAULINO, identified himself as an agent of the FCC's Dallas
Office and stated he wanted to inspect KBRN's public
inspection file. Mr Gutierrez provided access to KBRN's
transmitter shed and produced transmitter information and
technical manuals as the station's public inspection file.
Mr Gutierrez indicated no other documentation for station
KBRN was available.
5. On October 28, 2003, the Dallas FCC agent
inspected the equipment installed at the transmitter site
for KBRN. The station had no EAS equipment installed and no
6. Section 73.1125 requires the licensee of a
broadcast station to maintain a main studio at one of the
following locations: (1) within the station's community of
license; (2) at any location within the principal community
contour of any AM, FM or TV broadcast station licensed to
the station's community of license; or (3) within twenty
five miles from the reference coordinates of the center of
its community of license. In adopting the main studio
rules, the Commission stated that the station's main studio
must have the capability to serve the needs and interests of
the residents of the station's community of license.1 To
fulfill this function, a station, among other things, must
maintain a meaningful presence at its main studio.2 The
Commission has defined a minimally acceptable ``meaningful
presence'' as full-time managerial and full-time staff
personnel.3 The licensee need not have the same staff
person and manager at the studio, as long as there is
management and staff presence there during normal business
hours.4 Although management personnel need not be ``chained
to their desks'' during normal business hours, they must
``report at the main studio on a daily basis, spend a
substantial amount of time there and ... use the studio as a
home base.''5 On October 28, 2003, PAULINO failed to
maintain a main studio in the community of license for AM
broadcast station KBRN or at any of the permissible
locations discussed above (community of license).
Additionally there was no managerial or staff presence in
the community of license.
7. Section 11.35(a) of the Rules requires broadcast
stations, cable systems, and wireless cable systems to be
responsible for ensuring that EAS Encoders, EAS Decoders and
Attention Signal generating and receiving equipment used as
part of the EAS are installed so that the monitoring and
transmitting functions are available during the times that
the stations and systems are in operation. On October 28,
2003, PAULINO operated AM broadcast station KBRN without
installed and operational EAS equipment. Additionally, no
documentation was evident to indicate EAS equipment had ever
been operational at station KBRN or that the equipment had
been removed from service for repair6
8. Section 73.3527(a)(2) of the Rules7 requires that
every permittee or licensee of an AM, FM, or TV station in
the non commercial educational broadcast services shall
maintain a public inspection file containing the material,
relating to that station, described in paragraphs (e)(1)
through (e)(11) and paragraph (e)(12) of this section.
Section 73.3527(b) of the Rules8 requires the public
inspection file be maintained at the station's main studio.
Section 73.3527(c)(1) of the Rules requires the file be
available for public inspection at any time during regular
business hours. On October 28, 2003, no public inspection
file material was available for inspection in the community
of license during regular business hours for AM broadcast
9. Based on the evidence before us, we find PAULINO
willfully9 violated Sections 73.1125, 11.35(a), and
73.3527(c)(1) of the Rules, by failing to maintain a main
studio in the community of license, failing to maintain
installed and operational EAS sending and receiving
equipment, and failing to make available a public inspection
10. Pursuant to Section 1.80(b)(4) of the Rules,10 the
base forfeiture amount for public inspection file violations
is $10,000, for failing to have installed and operational
EAS sending and receiving equipment is $8,000, and violation
of main studio rule is $7,000. In assessing the monetary
forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) of the
Communications Act of 1934, as amended (``Act''), which
include 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.11
Considering the entire record and applying the factors
listed above, this case warrants a $25,000 forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,12 and Sections 0.111, 0.311 and
1.80 of the Rules,13 Paulino Bernal Evangelism, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of twenty-five thousand dollars ($25,000) for
willful violation of Sections 73.1125, 11.35(a), and
73.3527(c)(1) of the Rules for failing to maintain a main
studio in the community of license, have EAS Encoders, EAS
Decoders and Attention Signal generating and receiving
equipment installed and operational, and failing to make
available a public inspection file.
12. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Paulino Bernal Evangelism, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
13. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.14
14. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Spectrum Enforcement Division and MUST INCLUDE THE NAL/Acct.
No. referenced above.
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 financial documentation
16. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Spectrum
Enforcement Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
17. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Paulino Bernal Evangelism, Inc., P.O.
Box 252, McAllen, TX. 78505.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
Dallas Office, Enforcement Bureau
1 Main Studio and Program Origination Rules, 2 FCC Rcd 3215,
3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
3 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 (1991), clarified, 7 FCC Rcd 6800 (1992).
4 Id., 6 FCC Rcd at 3616 n.2; 7 FCC Rcd at 6800 n.4.
5 Id., 7 FCC Rcd at 6802.
6 EAS tests and activations, failure to receive such test
and activations, and EAS equipment malfunctions must be
recorded in the station log. See 47 C.F.R. §§ 11.35(a)-(b),
11.55(c)(7) and 11.61(b).
7 47 C.F.R. § 73.3527(a)(2).
8 47 C.F.R. § 73.3527(b).
9 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 . . ..'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387-88
10 47 C.F.R. § 1.80(b)(4).
11 47 U.S.C. § 503(b)(2)(D).
12 47 U.S.C. § 503(b).
13 47 C.F.R. §§ 0.111, 0.311, 1.80.
14 See 47 C.F.R. § 1.1914.