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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-SJ-067
HQ-103, Inc. ) NAL/Acct. No.200432680001
Licensee of WDIN-FM )
Camuy, PR ) FRN 0005-0236-68
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 10, 2004
By the Enforcement Bureau, South Central Region, San Juan
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find HQ-103, Inc. (``HQ''),
licensee of radio station WDIN Camuy, Puerto Rico,
apparently liable for forfeiture in the amount of ten
thousand dollars ($10,000) for willful and repeated
violation of Section(s) 73.1125(a) and 73.3526(c)(1) of the
Commission's Rules (``Rules'').1 Specifically, we find HQ
apparently liable for failing to maintain a presence at the
station's main studio and failing to make available for
inspection all of the required materials in the station's
public inspection file.
2. On November 20, 2003, the FCC Enforcement Bureau's
San Juan Office (``San Juan Office'') received a complaint
of interference from WIUJ, a U.S. Virgin Island broadcast
station. WIUJ's manager alleged reduced coverage area in
his community of license from WDIN's signal.
3. On December 3, 2003, resident agents from the San
Juan Office conducted an inspection of WDIN's main studio
located at El Maestro Urbanization, Calle Principal final,
Camuy. The agents discovered that the main studio was
staffed by one employee, Mr. Antonio Rivera, who explained
that the station contract engineer, Raymond Hernandez, had
left only a short while earlier and the station manager, Ms.
Sandra Rodriguez, was working at a co-owned station in
Caguas.2 Mr. Rivera told the agents that Ms. Rodriguez
would come to the main studio once or twice a week. The
agents also found that WDIN's public inspection file was
missing letters from the public,3 the issues/program list,4
and the station's current contour map.5
4. On December 17, 2003, the San Juan Office sent a
letter of inquiry (``LOI'') to the licensee requesting
additional information regarding possible violations of the
main studio and public inspection file rules. On January
19, 2004, the San Juan agents received a formal reply to the
LOI via fax and subsequently on January 20, 2004 received
another copy in the mail from the licensee's counsel.
5. In their reply, HQ acknowledged violation of the
public inspection file rules pertaining to the
issues/program lists and the missing contour map. HQ
indicated that the missing documents were now available in
the public file. HQ stated that they had received no
letters from the public to file; therefore none were
required to be filed. They also alleged that Ms. Sandra
Rodriguez, secretary/director of HQ, provided the managerial
presence at the main studio in Camuy. According to their
reply, Ms. Rodriguez spends her mornings at WMID and her
afternoons at HQ's co-owned station WVJP in Caguas. Ms.
Rodriguez stated that when she is not in Camuy, she is
reachable via phone and delegates all of her managerial
responsibilities at WDIN to an assistant supervisor. HQ
asserted that Ms. Rodriquez was not present for the agents'
inspection on December 3, 2003, because the studio,
including her office, was undergoing renovations. In
addition to a manager, HQ stated that WMID is staffed every
day by Mr. Antonio Rivera, who fulfills a non-managerial
role answering the telephone and making certain the
Station's technical facilities are in working order.
6. On February 2, 2004, an agent attempted an
inspection at 1:05 PM AST, but the WDIN studio in Camuy was
closed with its main gate locked. Mr. Rivera, who lived
nearby the studio, arrived at the studio about 5 to 10
minutes later. Mr. Rivera told the agent that Mr. Gabriel
Orsini had begun working at WMID in December 2003 and that
he had been informed that morning that Mr. Orsini was now
his supervisor. Mr. Rivera also stated that Mr. Orsini
typically left soon after Ms. Rodriguez would leave. Mr.
Orsini arrived at the studio at 2:10 PM AST after telephone
conversations between Mr. Rivera and Ms. Rodriguez.
7. On February 19, 2004, an agent arrived at the WDIN
studio at 4:10 PM AST to find the studio gate locked and the
parking spaces empty. As the agent was getting ready to
leave, Mr. Rivera arrived to greet the agent. Neither Ms.
Rodriguez nor Mr. Orsini was present at the studio.
8. On March 4, 2004 at 10:40 AM AST, agents arrived
at WDIN's studio and found the gate to the studio locked.
Mr. Rivera arrived to greet the agents shortly thereafter.
Neither Ms. Rodriguez nor Mr. Orsini was present at the
studio. Mr. Rivera stated that Ms. Rodriguez ``was here for
five minutes and left'' and that he hadn't seen Mr. Orsini
9. On March 24, 2004, agents twice visited WDIN's
studio. At 10:40 AM AST, the agents found the studio gate
locked and the parking spaces empty. Mr. Rivera arrived to
greet the agents shortly thereafter. Neither Ms. Rodriguez
nor Mr. Orsini was present at the studio. Mr. Rivera stated
he spoke to Ms. Rodriguez that morning but hadn't seen Mr.
Orsini that day. The agents returned to the studio at 2:00
PM AST. The agents again found the studio gate locked and
the parking spaces empty. Mr. Rivera did not arrive to let
the agents inspect the studio.
10. Section 73.1125(a) of the Rules states that each
AM or FM station shall maintain a 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 or FM 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 as described in Section 73.208(a)(1).6 In addition,
the station's main studio must serve the needs and interests
of the residents of the station's community of license.7 To
fulfill this function, a station must, among other things,
maintain a meaningful presence at its main studio.8 The
Commission has defined a minimally acceptable ``meaningful
presence'' as full-time managerial and full-time staff
personnel.9 In addition, there must be ``managerial and
staff presence'' on a full-time basis during normal business
hours to be considered ``meaningful.''10 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.''11 On December
3, 2003, February 2, February 19, March 4, and March 24,
2004, the WDIN main studio was not staffed during normal
business hours as required by Section 73.1125(a) of the
11. Section 73.3526(a)(2) of the Rules states that
every permittee or licensee of an AM or FM station shall
maintain a public inspection file containing the material,
relating to that station, described in paragraphs (e)(1)
through (e)(10) and paragraphs (e)(12) through (e)(14) of
this section.12 Section 73.3526(b) of the Rules requires
the public inspection file be maintained at the station's
main studio.13 Section 73.3526(c)(1) of the Rules requires
the file be available for public inspection at any time
during regular business hours.14 On December 3, 2003, an
inspection of station WDIN's public inspection file revealed
that required material was missing, specifically the
quarterly Issues and Programs Lists and the most current
contour map. Accordingly, complete public inspection file
material was not available for inspection during regular
business hours at the WDIN main studio.
12. Based on the evidence before us, we find HQ
willfully15 and repeatedly16 violated Sections 73.1125(a)
and 73.3526(c)(1) of the Rules by failing to maintain a
presence at the station's main studio and failing to make
available for inspection all of the required materials in
the station's public inspection file.
13. Pursuant to Section 1.80(b)(4) of the Rules,17 the
base forfeiture amount for violation of the main studio rule
is $7,000, and the base forfeiture amount for violation of
the public file rule is $10,000. 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.18
Because the station maintained a portion of the required
items in the public inspection file, a downward adjustment
of the base forfeiture for that violation from $10,000 to
$3,000 is warranted. Considering the entire record and
applying the factors listed above, this case warrants a
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act,19 and Sections 0.111, 0.311 and
1.80 of the Rules,20 HQ-103, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for willful and repeated
violation of Sections 73.1125(a) and 73.3526(c)(1) of the
Rules for failing to maintain a presence at the station's
main studio and failing to make available for inspection all
of the required materials in the station's public inspection
15. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, HQ-103, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
16. 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. 20554.21
17. The response, if any, must be mailed to Federal
Communications Commission, US Federal Building Room 762, San
Juan, PR 00918-1731 within thirty days of the release date
of this NAL and MUST INCLUDE THE NAL/Acct. No. referenced
18. 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
19. 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.
20. IT IS FURTHER ORDERED that a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to HQ-103, Inc, Box 780 Camuy, PR 00627
and to its counsel Fletcher, Heald & Hildreth, P.L.C. 11th
Floor, 1300 North 17th street, Arlington, VA 22209-3801.
Resident Agent - San Juan
Office, South Central Region
147 C.F.R. §§ 73.1125(a), 73.3526(c)(1).
2Caguas is a 1.5 to 2 hour drive from the WDIN studio
3See 47 C.F.R. § 73.3526(e)(9).
4See 47 C.F.R. § 73.3526(e)(12).
5See 47 C.F.R. § 73.3526(e)(4).
647 C.F.R. § 73.1125(a).
7See Main Studio and Program Origination Rules, 2 FCC Rcd
3215, 3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026
9See Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 (1991), clarified, 7 FCC Rcd 6800 (1992).
10Id., 6 FCC Rcd at 3616, n.2.
11Id., 7 FCC Rcd at 6802.
1247 C.F.R. § 73.3526(a)(2).
1347 C.F.R. § 73.3526(b).
1447 C.F.R. § 73.3526(c)(1).
15Section 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
16The 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.'' 47
U.S.C. § 312(f)(2).
1747 C.F.R. § 1.80(b)(4).
1847 U.S.C. § 503(b)(2)(D).
1947 U.S.C. § 503(b).
2047 C.F.R. §§ 0.111, 0.311, 1.80.
21See 47 C.F.R. § 1.1914.