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FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
TELEMUNDO NETWORK GROUP, LLC ) Acct. No. 200132080022
) File No. EB-01-IH-0034, GS
Holder of Permit to Transmit or )
Deliver Programs to Foreign )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 6, 2001 Released: March 7,
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we find
that Telemundo Network Group, LLC (``Telemundo'') transmitted or
delivered programming to a foreign station without a valid
permit, in apparent willful and repeated violation of Section
325(c) of the Communications Act of 1934, as amended.1 We
conclude that Telemundo is apparently liable for a forfeiture in
the amount of $7,000.
2. Telemundo operates Telemundo Network, which provides
primarily Spanish-language programming for television stations.
In 1992, the Commission staff, pursuant to Section 325(c) of the
Act, granted Telemundo a permit to transmit or deliver
programming to a number of television stations in Mexico,
including Station XHAS(TV) in Tijuana. On July 1, 1993, the
permit expired. Despite the lack of a valid authorization,
Telemundo, for nearly two years, apparently continued to transmit
or deliver programming to Station XHAS(TV). On June 30, 1995,
Telemundo filed an application for a new Section 325(c) permit to
transmit or deliver programming to Station XHAS(TV). In the
application, Telemundo characterized it's failure to timely seek
an extension of the prior permit as ``inadvertent'' and an
3. On September 1, 1995, the Commission staff granted
Telemundo's application for a new Section 325(c) permit. In its
letter granting the new five-year authorization, the Commission
You are reminded, however[,] that Commission licensees
are expected to comply fully with the requirements of
[the] Communications Act and the Commission's Rules.
As such, it is expected that Telemundo will in the
future comply fully with Section 325(c) of the
Communications Act . . . .
4. On September 1, 2000, Telemundo's permit expired. Despite
the lack of a valid authorization, Telemundo, for nearly three
months, continued to transmit or deliver programming to Station
XHAS(TV). On November 22, 2000, Telemundo filed an application
for a new Section 325(c) permit to transmit or deliver
programming to Station XHAS(TV), and, on December 7, 2000, it
requested Special Temporary Authority (``STA'') to do so. In the
STA request, Telemundo again characterized its failure to timely
seek an extension of the prior Section 325(c) permit as
``inadvertent.'' The Commission staff subsequently granted the
STA request and the application on December 12, 2000, and January
12, 2001, respectively.
5. Section 325(c) of the Act states:
No person shall be permitted to locate, use, or
maintain a radio broadcast studio or other place or
apparatus from which or whereby sound waves are
converted into electrical energy, or mechanical or
physical reproduction of sound waves produced, and
caused to be transmitted or delivered to a radio
station in a foreign country for the purpose of being
broadcast from any radio station there having a power
output of sufficient intensity and/or being so located
geographically that its emissions may be received
consistently in the United States, without first
obtaining a permit from the Commission upon proper
6. Based on the information before us, we find that Telemundo
transmitted or delivered programming to a foreign station without
a valid permit, in apparent willful and repeated violation of
Section 325(c) of the Act.2 After its prior Section 325(c) permit
expired on September 1, 2000, Telemundo continued to transmit or
deliver programming to Station XHAS(TV) in Tijuana, Mexico.
Station XHAS operates with a maximum effective radiated power of
1,000 kilowatts, and its emissions are received consistently in
areas of southern California. Thus, at all relevant times,
Telemundo was subject to the requirements of Section 325(c) of
the Act. Telemundo apparently violated Section 325(c) of the Act
between September 2, 2000, the day after its prior permit
expired, and December 12, 2000, when it received an STA.
Telemundo's apparent violation of Section 325(c) of the Act
during this period is aggravated by its history of noncompliance
with Section 325(c) between 1993 and 1995.
7. Under these circumstances, we conclude that a monetary
forfeiture appears warranted. Section 503(b)(2)(D) of the Act3
and Section 1.80(b)(4) of the Commission's rules4 require us to
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
such other matters as justice may require.'' The Commission's
Forfeiture Policy Statement,5 which provides further guidance in
establishing appropriate forfeiture amounts, does not articulate
a base forfeiture amount for violations of Section 325(c) of the
Act.6 We believe, however, that transmitting or delivering
programming to a foreign station without a valid permit, in
violation of Section 325(c) of the Act, is comparable to
operating a radio facility without a license, in violation of
Section 301 of the Act.7 Both violations involve a failure to
apply for and obtain mandatory instruments of authority.
Furthermore, Section 325(d) of the Act8 specifically states that
an application for a Section 325(c) permit ``shall be subject to
the requirements of section 309 [of the Act] with respect to
applications for station licenses or renewal or modification
thereof . . . .''
8. Pursuant to the Forfeiture Policy Statement, the base
forfeiture amount for operating a radio facility without an
instrument of authorization is $10,000. We believe this is an
appropriate base forfeiture amount for a violation of Section
325(c) of the Act. In the instant case, the base forfeiture
amount initially should be adjusted downward to $5,000 to reflect
that Telemundo's apparent violation of Section 325(c) of the Act
resulted from a failure to timely renew a previous authorization.
Because Telemundo previously was authorized to transmit or
deliver programming to Station XHAS(TV), we do not consider
Telemundo akin to a ``pirate'' operator for whom a $10,000
forfeiture ordinarily would be appropriate. On the other hand,
Telemundo's history of noncompliance with Section 325(c) of the
Act is an aggravating factor that requires an upward adjustment.
On balance, and taking into consideration the factors expressed
in Sections 503(b)(2)(D) and 1.80(b)(4), we conclude that a
forfeiture in the amount of $7,000 appears appropriate.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of
the Communications Act of 1934, as amended, that Telemundo
Network Group, LLC is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of $7,000 for apparently willfully
and repeatedly violating Section 325(c) of the Communications Act
of 1934, as amended.
10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, Telemundo Network Group, LLC SHALL PAY to the United
States the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking
reduction or cancellation of the proposed forfeiture.9
11. IT IS FURTHER ORDERED that a copy of this Notice shall be
sent, by Certified Mail -- Return Receipt Requested, to counsel
for Telemundo Network Group, LLC: M. Anne Swanson, Esq., Dow,
Lohnes & Albertson, PLLC, 1200 New Hampshire Avenue, N.W.; Suite
800, Washington, D.C. 20036-6802.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 U.S.C. § 325(c).
2 The Commission has held that an act or omission is ``willful''
if it is a conscious and deliberate act or omission, whether or
not there is any intent to violate the rule. Southern California
Broadcasting Company, 6 FCC Rcd 4387 (1991)(definition of
willfulness contained in 47 U.S.C. § 312(f) applies equally to 47
U.S.C. § 503). Furthermore, a continuing violation is
``repeated'' if it lasts more than one day. Id., 6 FCC Rcd at
3 47 U.S.C. § 503(b)(2)(D).
4 47 C.F.R. § 1.80(b)(4).
5 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17,087 (1997), recon. denied, 15 FCC Rcd
303 (1999)(``Forfeiture Policy Statement'').
6 The fact that the guidelines in the Forfeiture Policy Statement
do not specify a base forfeiture amount does not mean that a
forfeiture may not be imposed. The Forfeiture Policy Statement
states that ``any omission of a specific rule violation from the
. . . [forfeiture guidelines] . . . should not signal that the
Commission considers any unlisted violation as nonexistent or
unimportant.'' Forfeiture Policy Statement, 12 FCC Rcd 17,099,
para. 22. The Commission retains the discretion, moreover, to
depart from the forfeiture guidelines and issue forfeitures on a
case-by-case basis, under the general forfeiture authority
contained in Section 503 of the Act. Id.
7 47 U.S.C. § 301.
8 47 U.S.C. § 325(d).
9 Payment 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 must reference the Acct. No. identified
above. The response, if any, must reference the File No.
identified above and be directed to Charles W. Kelley,
Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, 445 12th Street, S.W., Room 3-
B443, Washington DC 20554.