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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-03-DL-229
Paulino Bernal Evangelism
) NAL/Acct No. 200432500001
) FRN 0005733662
MEMORANDUM OPINION AND ORDER
Adopted: August 23, 2006 Released: August 25, 2006
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we deny a petition for
reconsideration filed by Paulino Bernal Evangelism ("Evangelism"),
former licensee of AM broadcast station KBRN, Boerne, Texas.
Evangelism filed for reconsideration of a Bureau Forfeiture Order
issued to Evangelism on October 19, 2004, in the amount of twenty-five
thousand dollars ($25,000) for willful and repeated violation of
Sections 73.1125, 11.35(a) and 73.3527(c)(1) of the Commission's Rules
("Rules"). The noted rule violations involve Evangelism's 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 the
station's public inspection file available.
2. On October 28, 2003, an agent from the Commission's Dallas, Texas,
Field Office ("Dallas Office") inspected station KBRN in Boerne,
Texas. The agent could find no local or toll free telephone number for
station KBRN and was unable to locate its main studio. The agent did
locate KBRN's transmitter tower and the shed containing its
transmitting equipment but found that they were situated on private
property behind locked fences and were inaccessible. Subsequently,
Evangelism's technical representative advised the agent that the
transmitter shed served as KBRN's main studio and that the only person
working for KBRN in Boerne, Texas, was an unpaid volunteer who would
make KBRN's public inspection file available upon request. The agent
contacted the unpaid volunteer and stated he wanted to inspect KBRN's
public inspection file. The volunteer provided access to KBRN's
transmitter shed but, when asked to provide the station's public
inspection file, produced transmitter information and technical
manuals, and stated that no other documentation for station KBRN was
3. On December 19, 2003, the Dallas Office issued a Notice of Apparent
Liability for Forfeiture ("NAL"), to Evangelism proposing a monetary
forfeiture of $25,000 for apparent willful and repeated violation of
Sections 73.1125, 11.35(a) and 73.3527(c)(1) of the Rules. In its
response to the NAL, Evangelism argued that it did not violate the
public inspection file requirement and that the proposed forfeiture
should be reduced or cancelled on the basis of its inability to pay
and history of overall compliance. In the Bureau Forfeiture Order, we
rejected these arguments and imposed a monetary forfeiture of $25,000
for willful and repeated violation of Sections 73.1125, 11.35(a) and
73.3527(c)(1) of the Rules. In its petition for reconsideration,
Evangelism argues that it did not violate the main studio and public
inspection file requirements; that, if it violated the Rules, there is
no evidence that the violations were repeated; that it has a history
of overall compliance; that imposition of a forfeiture against
Evangelism would be "contrary to Commission policy" because donors
would be the ultimate source of payment; and that payment of a
forfeiture would limit its "ability to generate programming in the
A. Violation of Section 73.3527(c)(1) of the Rules (Public File
4. The public file requirements codified in Part 73 of the Rules are
rooted in Section 307(b) of the Communications Act of 1934, as
amended, ("Act"). Section 73.3527(a)(2) of the Rules requires that
every permittee or licensee of an AM, FM, or TV station operating in
the noncommercial educational broadcast services shall maintain a
public inspection file containing the material, relating to that
station, described in paragraphs (e)(1) through (e)(11) and paragraph
(e)(12) of that section. Section 73.3527(b) of the Rules requires the
public inspection file be maintained at the station's main studio.
Section 73.3527(c)(1) of the Rules requires the file be available for
public inspection at any time during regular business hours. 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.
5. Evangelism again claims that there was no public file violation.
Evangelism asserts that the KBRN's public file was "at all times
relevant to this matter . . . available at the KBRN studio"; that
Evangelism's unpaid volunteer at KBRN had limited facility in speaking
and understanding English, and was nervous and did not understand that
the agent had requested the public file; and that the unpaid volunteer
would have provided KBRN's public file if the FCC agent remained at
the KBRN studio "for a more reasonable period of time" or explained
his request for the public file "in a more reasonable fashion."
6. We reject Evangelism's arguments. It was Evangelism's responsibility
to make any necessary arrangements to have the public file available
at all times during KBRN's regular business hours. KBRN's unpaid
volunteer did not provide the public file upon the agent's request.
Furthermore, the file was unavailable to the public at all times
because there was no staff or management presence at the KBRN studio.
We affirm, therefore, the Forfeiture Order's determination that
Evangelism violated Section 73.3527(c)(1) of the Rules.
B. Violation of Section 73.1125 of the Rules (Main Studio)
7. In carrying out the mandate of Section 307(b) of the Act, the
Commission has established a regulatory regime for distributing
broadcast service in which every radio and television station is
assigned to a community of license with a primary obligation to serve
that community. A central component of this regulatory regime
requires that a broadcast station's main studio be accessible to its
community of license.
8. Section 73.1125 of the Rules requires the licensee of a broadcast
station to maintain a main studio at one of the following locations:
(1) within the station's community of license; (2) at any location
within the principal community contour of any AM, FM or TV broadcast
station licensed to the station's community of license; or (3) within
25 miles from the reference coordinates of the center of its community
of license. In adopting the main studio rule, the Commission stated
that the station's main studio must have the capability to serve the
needs and interests of the residents of the station's community of
license. To fulfill this function, a station, among other things, must
maintain a meaningful presence at its main studio. The Commission has
defined a minimally acceptable "meaningful presence" as full-time
managerial and full-time staff personnel. The licensee need not have
the same staff person and manager at the studio, as long as there is
management and staff presence there during normal business hours.
Although management personnel need not be "chained to their desks"
during normal business hours, they must "report at the main studio on
a daily basis, spend a substantial amount of time there and ... use
the studio as a home base."
9. Evangelism argues that it satisfied the main studio requirement
because of "the presence of the licensee's representative . . . and of
the public file." Evangelism had only an unpaid volunteer who was not
present at Evangelism's transmitter shed when an FCC agent initially
attempted to inspect it and who came to the transmitter shed only
after the agent contacted him. This minimal presence clearly did not
satisfy the requirement for a meaningful presence at the main studio.
We affirm, therefore, the Forfeiture Order's determination that
Evangelism violated Section 73.1125 of the Rules.
C. Downward Adjustment Factors
10. The Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules
permit downward adjustment of forfeitures on the basis of a minor
violation, good faith or voluntary disclosure, history of overall
compliance or inability pay as well as other factors within the
discretion of the Commission and its staff.
a. History of Overall Compliance
11. Evangelism again seeks reduction or cancellation of the forfeiture by
arguing that as of October 28, 2003, it had no prior offenses. We
previously rejected this claim in the Forfeiture Order because, in
addition to the violations involving KBRN, there was a violation
involving station KUOL (AM), San Marco, Texas, which is licensed to SM
Radio, Inc. ("SM"), a company under the same ownership as Evangelism.
Evangelism now argues that SM's violation should not be considered in
determining whether Evangelism has a history of overall compliance for
the following reasons: Paulino Bernal, 100 percent owner of SM, did
not own Evangelism; SM and Evangelism are distinct entities; SM's
violation occurred nearly simultaneously with Evangelism's offenses
and, therefore, was not a "prior offense"; and there has been no final
determination in SM Radio, Inc.
12. First, the ownership report on file at the time of Evangelism's
violations indicates Paulino Bernal owned 100 percent of Evangelism.
Second, although SM and Evangelism are legally distinct entities, we
find that, having the same owner at the time of the violations, they
were so closely related that it is appropriate to consider SM's
violation in determining whether Evangelism has a history of overall
compliance. Third, offenses need not be "prior" to be considered in
determining whether there is a history of overall compliance. Finally,
we can consider violations occurring in cases where there has been no
final determination. We affirm, therefore, the Forfeiture Order's
determination that Evangelism has presented no history of overall
b. Other Arguments
13. Evangelism argues that, because the FCC inspected station KBRN on only
one occasion, there is no evidence that any of the violations
specified in this proceeding were repeated. We reject this claim. All
of the violations specified in this proceeding are, by their nature,
continuing violations and Evangelism has made no claim that they
occurred on only one day.
14. Evangelism asserts that its revenues consist of donations by
listeners, who would be the ultimate source of any forfeiture payment,
and that imposition of a forfeiture against Evangelism would,
therefore, be "contrary to Commission policy." Evangelism provides
nothing to support this claim and, in fact, the Commission has no such
15. Evangelism also contends that payment of a forfeiture would limit its
"ability to generate programming in the public interest." Evangelism
used a similar argument to support a financial hardship claim that we
rejected in the Forfeiture Order. Although Evangelism does not
explicitly argue that payment of the forfeiture would cause a
financial hardship, the argument that payment of a forfeiture would
limit Evangelism's "ability to generate programming in the public
interest" is, in effect, a claim of financial hardship for which
Evangelism still has not provided the required documentation.
Accordingly, we reject this argument.
16. We have considered the forfeiture amount and we have examined
Evangelism's petition for reconsideration pursuant to the statutory
factors prescribed by Section 503(b)(2)(D) of the Act and Section 1.80
of the Rules and in conjunction with the Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines as well. As a result of our
review, we find that Evangelism willfully and repeatedly violated
Sections 73.1125 and 73.3527(c)(1) of the Rules and that neither
cancellation nor reduction of the monetary forfeiture is appropriate.
V. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act
and Section 1.106 of the Rules, Evangelism's petition for
reconsideration of the Forfeiture Order IS DENIED and the Forfeiture
Order IS AFFIRMED.
18. Payment of the forfeitures 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. 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: Associate Managing Director - Financial Operations,
445 12^th Street, SW, Room 1A625, Washington, D.C. 20554.
19. 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
Kris Anne Monteith
Chief, Enforcement Bureau
The Forfeiture Order was captioned "Paulino Bernal Evangelism, Inc."
Paulino Bernal Evangelism has informed us that "Inc." is not part of its
name. We have changed the caption accordingly.
The license for KBRN was assigned to Gerald Benavides on June 25, 2004
(See File No. BAL-20040322ADY, granted May 10, 2004).
Paulino Bernal Evangelism, Inc., 19 FCC Rcd 19922 (Enf. Bur. 2004)
47 C.F.R. SS 73.1125, 11.35(a) and 73.3527(c)(1).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200432500001
(Enf. Bur., Dallas Office, rel. Dec. 19, 2003).
Petition for Reconsideration, pp. 2-7.
See 47 C.F.R. SS 73.3526 and 73.3527 for commercial and noncommercial
47 U.S.C. S 307(b). This section requires the Commission to make such
distribution of licenses, frequencies, hours of operation, and of power
among the several States and communities as to provide for a fair,
efficient, and equitable distribution of radio service to each of the
47 C.F.R. S 73.3527(a)(2).
47 C.F.R. S 73.3527(b).
47 C.F.R. S 73.3527 (c)(1).
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) ("Main Studio Rule and Public Inspection Files")
recon. granted in part; 14 F.C.C.R. 11113 (1999); see also Union
Broadcasting, Inc., 19 FCC Rcd 18588, 185890 (Enf. Bur. 2004); Lebanon
Educational Broadcasting Foundation, 21 FCC Rcd 1442, 1444 (Enf. Bur.
2006) (Memorandum Opinion and Order).
Petition for Reconsideration, at 5.
Mahoning Valley Broadcasting Corporation, 39 FCC 2d 52, 63 (1972); see
also Section 73.3527(c)(1) of the Rules.
See NAL at PP 2, 3, 6.
Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3215 (1987),
clarified, 3 FCC Rcd 5024, 5026 (1988).
Main Studio Rule and Public Inspection Files, 13 FCC Rcd at 15692.
Id. at 15693; see also Main Studio and Program Origination Rules, 2 FCC
Rcd at 3217-3218.
Main Studio and Program Origination Rules, 2 FCC Rcd at 3217-3218.
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified, 7 FCC Rcd 6800 (1992) ("Jones Eastern").
Id., 6 FCC Rcd at 3616 n.2; 7 FCC Rcd at 6800 n.4.
Jones Eastern, 7 FCC Rcd at 6802.
Petition for Reconsideration, p. 5.
See NAL, P 3, 4.
See, e.g., Pilgrim Communications, Inc., 20 FCC Rcd 14314, 14315 (Enf.
Bur. 2004) (main studio rule violation found where licensee failed to
establish that there was a management level person employed at the station
at the time of the inspection).
47 C.F.R. S 1.80(b)(4), Note to paragraph (b)(4): Section II, Adjustment
Criteria for Section 503 Forfeitures, Downward Adjustment Criteria.
See SM Radio, Inc., 19 FCC Rcd 24812, application for review pending
(Enf. Bur. 2004) ("SM Radio, Inc.").
Petition for Reconsideration, pp. 2-4.
See JMK Communications, Inc., 19 FCC Rcd 16111, 16114 (Enf. Bur. 2004) (No
history of overall compliance found when licensee committed additional
violations following the violations on which forfeiture was based.) JMK's
additional violations resulted in a Forfeiture Order. JMK Communications,
Inc., 19 FCC Rcd 24808 (Enf. Bur. 2004), petition for reconsideration
granted in part and denied in part, 21 FCC Rcd 1427 (Enf. Bur. 2006).
Id. at 16114.
Petition for Reconsideration, pp. 6-7.
As provided by 47 U.S.C. S 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. 97^th Cong.
2d Sess. 51 (1982). See Southern California Broadcasting Company, 6 FCC
Rcd 4387, 4388 (1991).
Petition for Reconsideration, p. 7.
See Broadcast Learning Center, Inc., 19 FCC Rcd 9285, 9287 (Enf. Bur.
2004) (no reduction of forfeiture on basis that licensee's station "is a
non commercial educational station with a good portion of our revenue
coming from individual donations").
Petition for Reconsideration, p. 7.
Forfeiture Order at 19923.
The NAL informed Evangelism, at paragraph 15, that the Commission would
not consider reducing or canceling a forfeiture in response to a claim of
inability to pay unless the petitioner 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
petitioner's current financial status.
47 U.S.C. S 503(b)(2)(D).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission DA 06-1665
Federal Communications Commission DA 06-1665