Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                           Before the
                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



                        FORFEITURE ORDER

Adopted:  October 14, 2004              Released:  October 19, 
2004

By the Assistant Bureau Chief, Enforcement Bureau:

I.   INTRODUCTION

     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.  

II.  DISCUSSION

     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 
circumstance.  

     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 
                         Bureau


_________________________

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.