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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Hispanic Broadcast System, Inc. ) File
Licensee of Noncommercial Educational Station ) NAL/Acct. No.
WQQZ(FM), Clermont, Florida ) FRN 0006-
Adopted: July 5, 2005 Released: July
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order ("Order") we issue a monetary
forfeiture in the amount of eight thousand dollars
($8,000) to Hispanic Broadcast System, Inc. (``HBS''),
licensee of noncommercial educational broadcast
station WQQZ(FM), Clermont, Florida, for the willful
and repeated broadcast of advertisements in violation
of section 399B of the Communications Act of 1934, as
amended (the ``Act''),1 section 73.503(d) of the
Commission's rules (``underwriting rules'').2
2. In our Notice of Apparent Liability for Forfeiture
(``NAL''), we proposed a monetary forfeiture in the amount of
$10,000 to HBS for its apparent violation of the underwriting
rules through its broadcast of two underwriting announcements
that impermissibly promoted for-profit entities a total of 288
times from May 31 through June 27, 2004.3 In its response, HBS
requests cancellation or reduction of the proposed forfeiture.4
HBS does not dispute that Station WQQZ(FM) broadcast the
underwriting announcements on the dates indicated, or that they
were impermissibly promotional, as specified in the NAL, but asks
that we consider the fact that this is its first such violation.5
HBS also contends that it has implemented programming format
changes that will prevent the reoccurrence of such violations,
and that such changes will likely ensure material compliance with
the Commission's underwriting rules.6 Further, citing business
losses, HBS claims that payment of the forfeiture would pose a
3. We find that no mitigation is warranted on the basis of
HBS's alleged correction of the violations. The Commission has
long held that corrective action taken to come into compliance
with Commission rules or policy is expected, and does not nullify
or mitigate any prior forfeitures or violations.8 In support of
its claim that it is unable to pay, HBS provides its financial
statements for the four recent years, 2000 through 2003. We have
reviewed that information and find that it does not warrant
cancellation or reduction of the forfeiture amount on the basis
of inability to pay.
4. The Commission has determined that a licensee's gross
revenues are the best yardsticks for determining its ability to
pay9 and that net-loss experience does not, in the absence of
other mitigating factors, demonstrate a licensee's inability to
pay.10 In this case, the proposed forfeiture represents a very
modest percentage of HBS's gross revenues averaged over its four
most recent tax years, one that is comparable to instances where
the forfeiture amounts were not reduced on the basis of being
excessive.11 Although HBS claims that it has incurred
substantial net losses during recent years, we note that its
losses appear to exceed its gross receipts only in 2000 and 2001,
which, due to their remoteness in time, appear to be less
probative of its present ability to pay than its more recent
years. 12 In this connection, we find it significant that HBS's
financial information from 2002 and 2003 demonstrate either
profits or losses that do not exceed gross receipts.13 Moreover,
apart from providing its financial statements, HBS has neither
submitted, nor cited to, any other evidence supporting its claim
of financial hardship.14 However, in recognition of the fact
that HBS has maintained heretofore a good overall compliance
record, we will reduce the forfeiture from $10,000 to $8,000.15
5. Accordingly, IT IS ORDERED THAT, pursuant to section
503(b) of the Act16, and sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's rules,17 Hispanic Broadcast System, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of eight thousand
dollars ($8,000) for its willful and repeated broadcast of
advertisements in violation of section 73.503(d) of the
Commission's rules and section 399B of the Act.
6. Payment of the forfeiture must 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.18
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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail
may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
7. IT IS FURTHER ORDERED THAT a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to Hispanic Broadcast System, Inc., P.O. Box
1553, Quebradillas, Puerto Rico 00678, and to its counsel, James
L. Oyster, Esq., 108 Oyster Lane, Castleton, Virginia 22716-2839.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Acting Chief, Enforcement Bureau
1 47 U.S.C. § 399b.
2 47 C.F.R. § 73.503(d).
3 Hispanic Broadcast System, Inc, Notice of Apparent Liability
for Forfeiture, 20 FCC Rcd 2411 (Enf. Bur. 2005).
4 See Petition for Reconsideration of Forfeiture Order submitted
by HBS, to the Chief, Enforcement Bureau, dated March 9, 2005,
and supplemented March 21, 2005 (collectively ``Response'').
5 See id.
6 See id.
7 See id. In its response, HBS requested also, pursuant to 47
C.F.R. § 0.459, that the Commission afford confidentiality to
certain proprietary financial information included therein. Id.
While we have evaluated and compared the financial information
that HBS has provided against relevant Commission precedent
concerning alleged inability to pay, the Order does not discuss
that information in specific terms. Consequently, we need not
rule on HBS's request at this time. Until we so rule, we will
honor HBS's request for confidential treatment of certain
internal documents and business information that it has supplied
to the Bureau during the course of this investigation. See 47
C.F.R. § 0.459(d)(1); see also NAL , n. 4.
8 See Seawest Yacht Brokers, Notice of Forfeiture, 9 FCC Rcd 6099
(1994); AT&T Wireless Services, Inc., Forfeiture Order, 17 FCC
Rcd 21866, 21875 (2002); Callais Cablevision, Inc., Forfeiture
Order, 7 FCC Rcd 22626, 22629 (2002).
9 See PJB Communications of Virginia, Inc., Memorandum Opinion
and Order, 7 FCC Rcd 2088 (1992) (``PJB Communications'').
10 See Independent Communications, Inc., Memorandum Opinion and
Order and Forfeiture Order, 14 FCC Rcd 9605, 9610 (1999); PJB
Communications, 7 FCC Rcd at 2089.
11 See Alpha Ambulance, Inc., Order, 19 FCC Rcd 2547, 2548
(2004), citing PJB Communications, supra (forfeiture not deemed
excessive where it represented approximately 2.02 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation,
Memorandum Opinion and Order 15 FCC Rcd 8640, 8641 (Enf. Bur.
2002) (forfeiture not deemed excessive where it represented
approximately 7.6 percent of the violator's gross revenues);
Local Long Distance, Inc., Order on Reconsideration, 16 FCC Rcd
10023, 10025 (2001) (forfeiture not deemed excessive where it
represented approximately 7.9 percent of the violator's gross
12 See Response at 1, and associated balance sheets; see also
Maria L. Salazar, Memorandum Opinion and Order, 19 FCC Rcd 5050
(2004) (where recent financial information showing profit was
deemed more reliable evidence of current ability to pay than
older information demonstrating loss), petition for
13 See id.
14 Cf. Rebus, Inc., Forfeiture Order, 16 FCC Rcd 2964 (Enf. Bur.
2001) (reduction from $8,000 to $1,000 warranted due to inability
to pay where the station's loss of lease, substantial relocation
expenses, and other mitigating circumstances demonstrated
financial hardship); Delta Radio, Memorandum Opinion and Order
and Forfeiture Order, 13 FCC Rcd 21708 (Mass Med. Bur. 1998)
(reduction from $7,500 to $5,000 warranted due to inability to
pay where licensee had no assets or insurance to replace
transmitter tower lost during a storm).
15 See 47 C.F.R. § 1.80(b)(4); Pittman Broadcasting Services,
LLC, Forfeiture Order, 19 FCC Rcd 15320 (Enf. Bur. 2004).
16 47 U.S.C. § 503(b).
17 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.