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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Hispanic Broadcast System, Inc. ) EB-04-IH-0381
) Facility ID No. 27291
Licensee of Noncommercial ) NAL/Account No. 200532080121
Educational Station WQQZ(FM), ) FRN 0006596340
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Hispanic Broadcast
System, Inc. (``HBS''), licensee of noncommercial
educational Station WQQZ(FM), Clermont, Florida, has
apparently violated section 399B of the Communications Act
of 1934, as amended (the ``Act''), 47 U.S.C. § 399b, and
section 73.503 of the Commission's rules, 47 C.F.R. §
73.503, by willfully and repeatedly broadcasting prohibited
advertisements. Based upon our review of the facts and
circumstances of this case, we conclude that HBS is
apparently liable for a monetary forfeiture in the amount of
2. This case arises from a complaint made to the
Commission in July 2004, alleging that noncommercial
educational Station WQQZ(FM) broadcast prohibited
underwriting announcements during the month of June 2004.1
Thereafter, the Bureau inquired of the licensee concerning
the allegations contained in the complaint.2 HBS responded
substantively to the LOI 3 on November 12, 2004.4
3. Under section 503(b)(1) of the Act, any person who
is determined by the Commission to have willfully or
repeatedly failed to comply with any provision of the Act or
any rule, regulation, or order issued by the Commission
shall be liable to the United States for a forfeiture
penalty.5 In order to impose such a penalty, the Commission
must issue a notice of apparent liability, the notice must
be received, and the person against whom the notice has been
issued must have an opportunity to show, in writing, why no
such penalty should be imposed.6 The Commission will then
issue a forfeiture if it finds, by a preponderance of the
evidence, that the person has willfully or repeatedly
violated the Act or a Commission rule.7 As described in
greater detail below, we conclude under this procedure that
HBS is apparently liable for a forfeiture in the amount of
$10,000 for its apparent willful and repeated violations of
the Commission's underwriting rules.
A. Hispanic Has Willfully and Repeatedly Broadcast
Advertisements in Violation of Section 399B of the
Act and Section 73.503 of the Commission's Rules
4. Advertisements are defined by the Act as program
material broadcast "in exchange for any remuneration" and
intended to "promote any service, facility, or product" of
for-profit entities.8 The pertinent statute specifically
provides that noncommercial educational stations may not
broadcast advertisements.9 Although contributors of funds
to such stations may receive on-air acknowledgements, the
Commission has held that such acknowledgements may be made
for identification purposes only, and should not promote the
contributors' products, services, or businesses.10
Specifically, such announcements may not contain comparative
or qualitative descriptions, price information, calls to
action, or inducements to buy, sell, rent or lease.11 At
the same time, however, the Commission has acknowledged that
it is at times difficult to distinguish between language
that promotes versus that which merely identifies the
underwriter. Consequently, the Commission expects only that
licensees exercise reasonable, ``good faith'' judgment in
5. At issue here are two underwriting announcements
that HBS admits that Station WQQZ(FM) broadcast from May 31
through June 27, 2004.13 HBS acknowledges that it received
remuneration for airing the messages on behalf of the
station's underwriters, ``Old Town'' and ``Multi-Channel
Marketing,'' that both are for-profit entities, and that the
two messages were repeated a total of 288 times during the
stated period.14 With respect to Old Town, HBS represents
that the station broadcast several additional announcements
on its behalf during September 2004, which, like those it
previously aired, provided information to listeners
concerning the weekly local event ``Fiesta en Old Town,''
which the station cosponsored.15 Although HBS provided
contract information and broadcast transcripts pertaining to
such later announcements, it did not identify the number of
times or the specific dates on which it aired those later
6. We first note that both of the foregoing
announcements were broadcast in Spanish, and that HBS takes
exception to certain aspects of the translations that the
Bureau included with its LOI.17 Having reviewed HBS's
textual exceptions, we do not believe that they alter
materially the overall context or meaning of the
underwriting messages in either instance. However, we
accept HBS's alternate phrasings insofar as they represent
the basis by which it attempted to exercise its ``good
faith'' discretion under Xavier, supra. Thus, we have
revised our attached transcripts according to HBS's
7. After careful review of the record in this case,
however, we find that both announcements apparently exceed
the bounds of what is permissible under section 399B of the
Act, and the Commission's pertinent rules and policies, in
light of the ``good faith'' discretion afforded licensees
under Xavier, supra. We so conclude because the Old Town
announcement invites or urges business patronage, and the
Multi-Channel Marketing announcement seeks impermissibly to
distinguish favorably the underwriter from its competitors
by implying that it offers superior service, and by listing
its products in such a manner that suggests an overall
8. With regard to the Old Town announcement, we
specifically reject HBS's contention that the message
inviting listeners to the ``Fiesta en Old Town'' is
acceptable because no event admission or parking fees were
charged, and that this factor rendered it a ``not-for-profit
type of event'' intended to benefit listeners alone.18 HBS
has not established, however, that either Old Town or any of
the vendors that its messages promoted, qualify as not-for-
profit entities, or that the event in question received
official recognition as such. 19 Contrary to HBS's
contentions, the Commission has held that the offer of free
products or services by for-profit underwriters to be
promotional and prohibited because they seek to induce
business patronage.20 In this case, the announcement's
specific mention of the ``crafts, seventy specialized
tables, eight restaurants and eighteen amusement park
rides,'' 21 in conjunction with Old Town's offer of free
admission and parking, appears to have jointly benefited the
presumably for-profit vendors and other concessionaires
operating at the underwriter's event by inducing or
encouraging listener attendance. Such references render the
announcement to be promotional of for-profit entities, and
are thus prohibited.22
9. HBS further contends that the Multi-Channel
announcement includes only a ``generic description of
services provided by the sponsor that would be of interest
to [listeners]'' that is in accordance with the Commission's
rules and precedent.23 We reject this claim. To the
contrary, the promotional intent of this announcement is
demonstrated by its reference to Multi-Channel as an
``established dealer in Central Florida for the past ten
years,'' that offers ``installation services in twenty four
hours.''24 By thus seeking to distinguish Multi-Channel
from its competitors that are less experienced or are less
responsive to their customers, HBS promotes its for-profit
underwriter. 25 We find, also, that the message appears to
exceed the ``identification only'' purpose of underwriting
announcements by setting forth an excessively detailed
``menu listing'' of services offered by the underwriter,
which belies an overall promotional intent.26 Finally, we
note that the Commission has long held licensees responsible
for ensuring that any material broadcast in a foreign
language conforms to the requirements of the Act and the
Commission's rules.27 To the extent that HBS has ignored
its duties in this regard, we remind it to take appropriate
care in the future to avoid further lapses of this type.
B. Proposed Action
10. Section 503(b) of the Act and section 1.80(a) of
the Commission's rules both state that any person who
willfully or repeatedly fails to comply with the provisions
of the Act, the rules or Commission orders shall be liable
for a forfeiture penalty.28 The Commission's Forfeiture
Policy Statement sets a base forfeiture amount of $2,000 for
violation of the enhanced underwriting requirements.29 The
Forfeiture Policy Statement also provides that the
Commission shall adjust a forfeiture based upon
consideration of the factors enumerated in section
503(b)(2)(D) of the Act, such as ``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.''30
11. In this case, it appears that, from May 31 through
June 27, 2004, HBS willfully and repeatedly broadcast
advertisements in violation of section 399B of the Act and
section 73.503(d) of the Commission's rules. We believe
that a substantial forfeiture is necessary because of the
lengthy period of time over which the prohibited
announcements were aired, a full month, and the 288 times
that the announcements were repeated during that period.
Nevertheless, we believe the potential liability if we
simply applied the $2,000 base amount to each of the 288
apparent violations would be excessive here. Based on all
the circumstances, and after examining forfeiture actions in
other recent underwriting cases, we believe that a proposed
forfeiture of $10,000 is appropriate here.31
12. Accordingly, applying the Forfeiture Policy
Statement and the statutory factors to this case, we
conclude that HBS is apparently liable for a forfeiture in
the amount of $10,000, for violating the Commission's
underwriting rules. We will not hesitate to take even
stronger enforcement action against noncommercial
educational licensees that engage in similarly serious
violations of our underwriting requirements.
IV. ORDERING CLAUSES
13. In view of the foregoing, we conclude that a
monetary sanction is appropriate. Accordingly, pursuant to
section 503(b) of the Communications Act of 1934, as
amended, and sections 0.111, 0.311 and 1.80 of the
Commission's rules, Hispanic Broadcast Systems, Inc.,
licensee of noncommercial educational Station WQQZ(FM),
Clermont, Florida, is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of $10,000 for
willfully and repeatedly broadcasting advertisements in
violation of section 399B of the Act, 47 U.S.C. § 399b, and
section 73.503 of the Commission's rules, 47 C.F.R. §
14. IT IS FURTHER ORDERED, pursuant to section 1.80 of
the Commission's rules, that within thirty days of the
release of this Notice, HBS SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
15. Payment of the forfeiture must be made by mailing
a check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include
the NAL Acct. No. and FRN 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 60601. Payment by
wire transfer may be made to ABA Number 071000013, receiving
bank Bank One, and account number 1165259.
16. The response, if any, must be mailed to William H.
Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W, Room 4-C330, Washington DC 20554 and MUST
INCLUDE the NAL/Acct. No. referenced above.
17. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent 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
respondent's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
18. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.32
19. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by 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-
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
The following text was transcribed from underwriting
announcements broadcast over noncommercial educational
Station WQQZ(FM), Clermont, Florida.
This Sunday the 27th, the Fiesta Sundays in Old Town come to
an end. Live music from 2 until 6 at night, on Old Town's
principal stage. With ``La Sonora de Orlando.'' Live
transmissions through 88.7 FM. Fiesta Sundays in Old Town.
With crafts, seventy specialized tables, eight restaurants
and eighteen amusement park rides. One should not forget
the party beads. Enjoyment for the whole family in Old
Town. One mile east from I-4, exit 64A on Road 192,
Kissimmee. Information 407-396-4888 and in old-town.com.
Fiesta Sundays in Old Town will end this Sunday, the 27th
with ``La Sonora de Orlando.'' A present for the people,
presented by Telemundo Channel 40 and the ``salsero power''
of 88.7 FM.
Multi-Channel Marketing, an established dealer in central
Florida for the past ten years, sponsors the ``Latin Power''
and offers the services and systems from Dish network with a
100% digital signal on audio and video, and more than 30
channels in Spanish, such as ``TV Colombia,'' ``Telemundo,''
``Galavision,'' ``Deportes,'' ``FOX,'' ``ESPN,'' ``Cadena
Sur,'' ``TV Azteca,'' ``TV Chile,'' ``Tele Gol,''
``Univision,'' and ``Playboy'' in Spanish, included in the
Hispanic package. Spanish movie channels twenty-four hours
and others with classic movies like ``Cine Latino,'' and
``TV Colombia.'' Also, local channels and all the Dish
Network channels. Premium channels included on additional
plans. Multi-Channel Marketing. Business hours from 9:00
a.m. until 9:00 p.m., seven days a week. Installation
services in twenty-four hours. Information 407-857-1838 and
1 See e-mail referral from Diane Law-Hsu, Tampa Field
Office, to David Brown, Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, dated July 23, 2004
2 Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, to
HBS, dated October 7, 2004 (``LOI'').
3 Letter from James L. Oyster, Esq., to Kenneth M. Scheibel,
Jr., Attorney, Investigations and Hearings Division,
Enforcement Bureau, dated November 12, 2004 (``Response'').
4 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.
Response at Exhibit 4. Because this NAL discusses only that
information already made public by HBS, i.e., the text of
the announcements broadcast, the identity of the
underwriters as revealed in such announcements, and when and
how many times the announcements were aired, we need not
rule on the confidentiality request. 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).
547 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also
47 U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14
U.S.C. § 1464). Section 312(f)(1) of the Act defines
willful as ``the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to
violate'' the law. 47 U.S.C. § 312(f)(1). The legislative
history to section 312(f)(1) of the Act clarifies that this
definition of willful applies to both sections 312 and
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess.
51 (1982), and the Commission has so interpreted the term in
the section 503(b) context. See, e.g., Application for
Review of Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern
California Broadcasting Co.''). The Commission may also
assess a forfeiture for violations that are merely repeated,
and not willful. See, e.g., Callais Cablevision, Inc.,
Grand Isle, Louisiana, Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage).
``Repeated'' means that the act was committed or omitted
more than once, or lasts more than one day. Southern
California Broadcasting Co., 6 FCC Rcd at 4388, ¶ 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362 ¶ 9.
647 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
7See, e.g., SBC Communications, Inc., Forfeiture Order, 17
FCC Rcd 7589, 7591 ¶ 4 (2002) (forfeiture paid).
8 47 U.S.C. § 399b(a).
10 See In the Matter of the Commission Policy Concerning
the Noncommercial Nature of Educational Broadcasting
Stations, Public Notice (1986), republished, 7 FCC Rcd 827
(1992) (``Public Notice'').
12 See Xavier University, Memorandum Opinion and Order, 5
FCC Rcd 4920 (1990).
13 Response at Exhibit 1, Declaration of Hispanic's General
Manager, Daniel Pol.
15 Id. at Exhibit 2, Supplement to Response.
16 Our action herein does not reflect consideration of the
later messages that Hispanic aired on behalf of Old Town.
We retain discretion to make separate inquiry of these
messages at a later date.
17 Response at Exhibit 1. Hispanic argues that the Old Town
announcement should be interpreted to read ``this Sunday the
27th, the fiesta Sunday in Old Town comes to an end,'' as
opposed to ``[t]his Sunday the 27th is the end of the Party
Sunday in Old Town;'' and that the phrase ``[a]h! Do not
forget the party beads!'' should alternatively be read to
mean ``one should not forget the party beads.'' Hispanic
claims that the Multi-Channel Marketing announcement should
be interpreted as precisely stating that ``[Multi-Channel
Marketing] sponsors the Latin Power [i.e., Station WQQZ(FM)]
and offers the services and systems from Dish Network with
100% digital signal on audio and video, and more than 30
channels in Spanish,'' instead of [Multi-Channel Marketing]
sponsors the Latin power and offers the Dish Networks
service system.'' Hispanic argues also that the same
message stated that ``premium channels included on
additional plans,'' not ``different plans and channel
packages available, premium channels and additional plans.''
18 Response at Exhibit 1.
19 Cf. Commission Policy Concerning the Noncommercial Nature
of Educational Broadcast Stations, Report and Order, 90 FCC
2d 895, 900 n.16 (1982), recon., 97 FCC 2d 255 (1984)
(``1982 Policy Statement'') (arraying types of institutions
that qualify under IRS guidelines as not-for-profit
20 See Public Notice, supra.
21 Response at Exhibit 1.
22 The fact that the event was cosponsored by the
noncommercial educational station would not alter this
analysis, inasmuch as the Commission prohibits the joint-
promotion of such events with for-profit entities. See
Isothermal Community College (WNCW(FM)), Memorandum Opinion
and Order, 16 FCC Rcd 21360 (Enf. Bur. 2001), modified, 17
FCC Rcd 22666 (Enf. Bur. 2002).
23 Response at Exhibit 1.
25 See, e.g., Tri-State Inspirational Broadcasting
Corporation, Memorandum Opinion and Order, 16 FCC Rcd 16800
(Enf. Bur. 2001) (promotional reference was found where
jeweler indicated that he obtained gemstones directly from
his diamond cutter, because the distinction implied that
this practice was superior to competitors who drew supply
from other sources).
26 See, e.g., Penfold Communications, Inc., Memorandum
Opinion and Order, 13 FCC Rcd 23731 (Mass Media Bur.
1998)(references adverting to general usefulness,
convenience or advantages of products or services are
promotional); Letter of the Chief, Complaints and Political
Programming Branch, Enforcement Division, to Evansville-
Vanderburgh School Corporation (WPSR(FM)) (Mass Media Bur.
March 23, 1999).
27 See Licensee Responsibility to Exercise Adequate Control
Over Foreign Language Programs, Public Notice, 39 FCC 2d
28 See 47 U.S.C. § 503(b); 47 C.F.R § 1.80.
29 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17115 (1997)
(``Forfeiture Policy Statement''), recon. denied 15 FCC Rcd
303 (1999); 47 C.F.R. § 1.80(b).
30 47 U.S.C. § 503(b)(2)(D). See also Forfeiture Policy
Statement, 12 FCC Rcd at 17100 ¶ 27.
31 See, e.g., Christian Voice of Central Ohio,
Inc.(WCVZ(FM)), 19 FCC Rcd 23663 (Enf. Bur. 2004) ($20,000
forfeiture proposed for underwriting violations), response
pending; Minority Television Project, Inc. (KMTP-TV),
Forfeiture Order, 18 FCC Rcd 26611 (Enf. Bur. 2003),
application for review denied, Order on Review, FCC 04-293,
19 FCC Rcd ___ (December 23, 2004) ($10,000 forfeiture for
underwriting violations), recon. pending.
32 See 47 C.F.R. § 1.1914.