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                                   Before the

                       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             
     Boerne, Texas                                              

                          MEMORANDUM OPINION AND ORDER

   Adopted: August 23, 2006 Released: August 25, 2006

   By the Chief, Enforcement Bureau:

   I. introduction

    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
       public interest."

   I. Discussion

    A. Violation of Section 73.3527(c)(1) of the Rules (Public File

   1. Background

    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.

   2. Discussion

    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)

   1. Background

    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."

   2. Discussion

    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

      1. Background

   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.

      1. Discussion

   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.


   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.


   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)
   ("Forfeiture Order").

   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
   licensees, respectively.

   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.

   (...continued from previous page)


   Federal Communications Commission DA 06-1665


   Federal Communications Commission DA 06-1665