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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-DL-229
Paulino Bernal Evangelism, Inc. )
KBRN(AM) ) NAL/Acct No. 200432500001
Boerne, Texas ) FRN 0005733662
Adopted: October 14, 2004 Released: October 19,
By the Assistant Bureau Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
forfeiture in the amount of twenty-five thousand dollars
($25,000) to Paulino Bernal Evangelism (``Paulino''), licensee of
radio broadcast station KBRN(AM), Boerne, Texas, for willful and
repeated violation of Sections 73.1125, 11.35(a) and
73.3527(c)(1) of the Commission's Rules (``Rules'').1 The noted
rule violations involve its failure to maintain a main studio in
its community of license, failure to install and maintain
operational Emergency Alert System (``EAS'') equipment during the
hours of station operation, and failure to make available a
public inspection file.
2. In a December 19, 2003 Notice of Apparent Liability for
Forfeiture (``NAL''), the District Director of the Commission's
Dallas, Texas Field Office (``Dallas Office'') proposed a
monetary forfeiture of twenty-five thousand dollars ($25,000) to
Paulino.2 On March January 20, 2004, Paulino filed a response to
the NAL (``response'') wherein it challenged only the public
inspection file violation and sought a reduction or cancellation
in the proposed forfeiture because of an inability to pay and
history of no prior offenses.
3. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),3 Section 1.80 of the Rules,4
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Forfeiture Policy Statement'').5 In examining
Paulino'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 such other matters as justice may require.6
4. In its response, Paulino challenges one issue - its
failure to make available the public inspection file in
accordance with Section 73.3527(c)(1) of the Rules.7 Paulino
asserts that the file has long been located in an envelope in
plain sight at the station's studio/transmitter. Paulino submits
that a limited knowledge of the English language, combined with
panic at the arrival of the Enforcement Bureau's field agent
(``agent''), resulted in its station manager's forgetting the
location of that file. Paulino's assertion is of no moment. The
Commission has found that reasonable access to the public
inspection file serves the important purpose of facilitating
citizen monitoring of a station's operations and public interest
performance, and fostering community involvement with local
stations, thus helping to ensure that stations are responsive to
the needs and interests of their local communities.8 Given the
file's importance, the licensee should have, at the very least,
ensured that its personnel could tender the file under any
5. Paulino also seeks a reduction or cancellation of the
NAL's proposed forfeiture on the basis of an inability to pay and
a history of no prior offenses. As evidence of an inability to
pay, Paulino asserts that the struggling, noncommercial station
relies on donations from listeners and the services of
volunteers. Paulino explains that the difficult economic climate
has prompted it to suspend operations at several of its stations.
According to Paulino, the proposed forfeiture would compound
those losses, resulting in more station closings. In the
underlying NAL, we explained that the Commission will not
consider reducing or canceling a forfeiture in response to a
claim of inability to pay unless the petitioner submits certain
documentation.9 Paulino did not proffer the required
information. Mere assertions are insufficient to underpin a
finding of an inability to pay. The cases that Paulino
identifies to bolsters its claim are misplaced because unlike
Paulino, those entities submitted sufficient financial
documentation upon which the Commission could make a
determination on the issue.10 Because Paulino has not provided
sufficient information from which we can evaluate the financial
condition of KRBN(AM), we must reject its inability to pay claim.
6. Paulino rightfully states that the subject station has
no history of prior offenses. However, Paulino owns not one, but
several broadcast stations, one of which is also the subject of
an NAL.11 Given Paulino's history of prior rule violations, we
must reject this claim.
7. We have examined Paulino's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Forfeiture Policy Statement as well. As a result of our review,
we conclude that Paulino willfully12 and repeatedly13 violated
Sections 73.1125, 11.35(a) and 73.3527(c)(1) of the Commission's
Rules. Further, we find that neither cancellation nor reduction
of the proposed monetary forfeiture is warranted.
III. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,14 Paulino Bernal Evangelism, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of twenty-five thousand dollars
($25,000) for willfully and repeatedly violating Sections
73.1125, 11.35(a) and 73.3527(c)(1) of the Commission's Rules.
9. 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.15
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 Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Group, 445 12th Street, S.W.,
Washington, D.C. 20554.16
10. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to Barry D. Wood, Wood, Maines & Brown, Chartered,
1827 Jefferson Place, N.W., Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Bureau Chief, Enforcement
1 47 C.F.R. §§ 73.1125, 11.35(a) and 73.3527(c)(1).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432500001 (Enf. Bur., Dallas Office, rel. Dec. 19, 2003).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 U.S.C. § 503(b)(2)(D).
7 At the time of the October 28, 2003, inspection, the station's
technical representative failed to make the public inspection
file available to the agent.
8 Review of the Commission's Rules Regarding the Main Studio Rule
and Local Public Inspection Files of Broadcast Television and
Radio Stations, 13 FCC Rcd 15691, 15700 (1998).
9 NAL at 4.
10 Paulino cites Tri-County Telephone Co., 54 RR 2d 1065 (1983)
for the proposition that ultimately a station's ability to pay is
a function of the licensee's profitability. However, in PJB
Communications, 7 FCC Rcd 2088, 2089 n.4 (1983) the Commission
held that to the extent that Tri-County suggested that a focus on
profit alone was an appropriate basis for a financial hardship
showing, it was overruled. Regardless, Paulino submits no
supporting financial documentation concerning its profitability
or lack thereof. The rest of the proffered cases - First
Greenville Corp., FCC Rcd 7399 (1996); Benito Rish,10 FCC Rcd
2861 (1995) and Pinnacle Communications, 11 FCC Rcd 15496 (1996)
- concern entities that, unlike Paulino, submitted sufficient
financial documentation upon which the Commission could make a
determination concerning the issue of inability to pay.
11Mr. Bernal also owns station KUOL(AM), San Marcus, Texas. On
December 19, 2003, Commission staff issued an NAL concerning that
station, citing a violation of Section 73.1125 (failure to
maintain a main studio presence in the community of license).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432500002 (Enf. Bur., Dallas Office, rel. Dec. 19, 2003).
12 As provided by 47 U.S.C. § 312 (f)(1), the term ``willful''
does not require a finding that the rule violation was
intentional or that the violator was aware that it was committing
a rule violation
13 As provided by 47 U.S.C. § 312(f)(2), a violation is
``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.