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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
ORDER ON REVIEW
Adopted: October 27, 2008 Released: October 28, 2008
By the Commission:
1. In this Order on Review ("Order"), we grant in part and deny in part
the Application for Review filed by Paulino Bernal Evangelism
("Evangelism"), former licensee of AM broadcast station KBRN, Boerne,
Texas, of the Enforcement Bureau's Memorandum Opinion and Order
released on August 25, 2006. Specifically, we reduce the forfeiture
amount from $25,000 to $20,000 and deny the application for review in
all other respects. In the Memorandum Opinion and Order, the Bureau
denied Evangelism's petition 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 to the public.
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 its failure to maintain a main studio in its
community of license, its failure to install and maintain operational
EAS equipment during the hours of station operation, and its failure
to make the station's public inspection file available in 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 Forfeiture Order, the Bureau 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 argued 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." The Bureau MO&O rejected
these arguments and affirmed the Forfeiture Order. In its application
for review, Evangelism argues that it substantially complied with the
main studio and public inspection file requirements and that it has a
history of overall compliance. Evangelism, however, does not contest
the Bureau's determination that Evangelism violated the EAS Rules.
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
5. In its petition for reconsideration of the Forfeiture Order,
Evangelism argued that there was no public file violation. Evangelism
asserted that the KBRN 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." The Bureau
rejected these arguments in the Bureau MO&O.
6. Evangelism now presents a similar argument -- asserting that it
"substantially complied" with the public file requirement. Evangelism
claims that the Bureau MO&O rejected Evangelism's arguments "in
cursory fashion without adequate analysis to support its conclusion";
that its "station manager," an unpaid volunteer, did not comprehend
the FCC agent's request for the public file; and that the Bureau's
rejection of Evangelism's arguments effectively created, without
notice and comment, a new rule requiring that " Spanish language
stations must have persons fluent in English present at all times when
the main studio is staffed . . . ."
7. We concur with the Bureau's findings that 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 and
that KBRN's unpaid volunteer did not provide the public file upon the
agent's request. Our decision is consistent with Commission precedent
that holds, in carrying out its responsibility under Section
73.352(c)(1), a station is obligated to ensure that the public,
including an FCC agent, is able to access the public file during
regular business hours. That did not happen here. The FCC agent went
to considerable lengths in his efforts to obtain KBRN's public file.
These efforts included locating KBRN's transmitter shed, determining
the identity of Evangelism's local representative through a telephone
conversation with Evangelism's technical representative and eventually
making arrangements to meet KBRN's local representative, an unpaid
volunteer. Moreover, we note that the lack of availability of KBRN's
public file involves more than the unpaid volunteer's alleged
difficulty with the English language. The general public can hardly be
expected to go the same lengths to obtain access to KBRN's public
file. Under these circumstances, KBRN's public file was effectively
unavailable to the general public at all times. We affirm the Bureau's
determination that Evangelism willfully and repeatedly violated
Section 73.3527(c)(1) of the Rules.
B. Violation of Section 73.1125 of the Rules (Main Studio)
8. 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
9. 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."
10. In its petition for reconsideration of the Forfeiture Order,
Evangelism argued that it satisfied the main studio requirement
because of "the presence of the licensee's representative . . . and of
the public file." The Bureau MO&O rejected this argument. Now
Evangelism claims that it "substantially complied" with the main
studio requirements and that the Bureau rejected Evangelism's
arguments "in cursory fashion without adequate analysis to support its
conclusion." We concur with the Bureau's finding that the minimal
presence of KBRN's unpaid volunteer in the community did not satisfy
the requirement for a meaningful presence at the main studio. The
unpaid volunteer was not present at Evangelism's transmitter shed
which serves as its main studio when the FCC agent initially attempted
to inspect it, and came to the transmitter shed only after the agent
contacted him. Furthermore, Evangelism has presented no evidence
indicating that the unpaid volunteer had a meaningful presence at the
main studio during normal business hours, which would include
reporting there on a daily basis, spending a substantial amount of
time there and using it as a home base. Since he was not present at
the main studio, we need not address whether the unpaid volunteer was
managerial personnel. We affirm, therefore, the Bureau's
determination that Evangelism willfully and repeatedly violated
Section 73.1125 of the Rules.
C. History of Overall Compliance Argument
11. 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.
12. Evangelism again claims that it has a history of overall compliance.
The Bureau rejected this claim in the Forfeiture Order because, in
addition to the violations involving KBRN, the Bureau noted a
violation involving station KUOL(AM), San Marco, Texas, which is
licensed to SM Radio, Inc. ("SM"), a company the Bureau found to be
under the same ownership as Evangelism. In its petition for
reconsideration of the Forfeiture Order, Evangelism argued that SM's
violation should not be considered in determining whether Evangelism
has a history of overall compliance for the following reasons: Paulino
Bernal, although the 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. The Bureau rejected these arguments and affirmed the
Bureau's determination that Evangelism did not present a history of
overall compliance. Specifically, the Bureau found that (1) the
ownership report on file at the time of Evangelism's violations
indicates that Paulino Bernal owned 100 percent of Evangelism; (2) SM
and Evangelism were so closely related that it is appropriate to
consider SM's violations in determining whether Evangelism has a
history of overall compliance; (3) offenses need not be "prior" to be
considered in determining whether there is a history of overall
compliance; and (4) it can consider violations occurring in cases
where there has been no final determination.
13. Evangelism argues in its application for review that SM's violation
should not be considered in determining whether Evangelism has a
history of overall compliance. Evangelism asserts that the ownership
report on file at the time of Evangelism's violations, which stated
that Paulino Bernal owned 100 percent of Evangelism, was incorrect.
Specifically, Evangelism states that, in fact, Paulino Bernal was a
director of Evangelism but owned no stock in Evangelism, a non-stock
corporation, and did not control it. In view of this information, we
find that Paulino Bernal was not the 100% owner of Paulino Bernal
Evangelism. We find accordingly that Evangelism has a history of
overall compliance and that the forfeiture amount should be reduced to
$20,000 on this basis. In light of this determination, we need not
consider Evangelism's other arguments for a reduction on the basis of
a history of overall compliance.
14. We have considered the forfeiture amount and we have examined
Evangelism's application for review 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 cancellation of the monetary forfeiture is not appropriate but a
reduction of the forfeiture amount to $20,000 is warranted.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section 1.115 of the
Rules, Evangelism's application for review of the Bureau's Memorandum
Opinion and Order IS GRANTED to the extent that the forfeiture amount
is reduced to $20,000 and IS DENIED in all other respects.
16. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Evangelism will also send electronic
notification on the date said payment is made to
17. 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
Evangelism's counsel, Barry D. Wood, Esq.,Wood, Maines & Brown,
Chartered, 1827 Jefferson Place, N.W., Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
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., Memorandum Opinion and Order, 21 FCC Rcd
9532 (Enf. Bur. 2006) ("Bureau MO&O").
Paulino Bernal Evangelism, Inc., Forfeiture Order, 19 FCC Rcd 19922 (Enf.
Bur. 2004) ("Forfeiture Order").
47 C.F.R. S:S: 73.1125, 11.35(a) and 73.3527(c)(1).
Paulino Bernal Evangelism, Inc., Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200432500001 (Enf. Bur., Dallas Office, rel.
Dec. 19, 2003).
Letter of January 20, 2004, from Barry D. Wood, Esq., to Marlene H.
Dortch, Secretary, Federal Communications Commission.
Petition for Reconsideration at 2-7.
See 47 C.F.R. S:S: 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, Report
and Order,13 FCC Rcd 15691, 15700 (1998) ("Main Studio Rule and Public
Inspection Files") recon. granted in part; Memorandum Opinion and Order,
14 F.C.C.R. 11113 (1999); see also Union Broadcasting, Inc., Forfeiture
Order, 19 FCC Rcd 18588, 185890 (Enf. Bur. 2004); Lebanon Educational
Broadcasting Foundation, Memorandum Opinion and Order, 21 FCC Rcd 1442,
1444 (Enf. Bur. 2006).
Petition for Reconsideration, at 5.
Bureau MO&O, 21 FCC Rcd at 9534.
Application for Review at 6-7.
Mahoning Valley Broadcasting Corporation, Memorandum Opinion and Order, 39
FCC 2d 52, 63 (1972) (licensee required to make arrangements to have the
public file available for inspection at all times during regular business
hours); see also Section 73.3527(c)(1) of the Rules.
Main Studio and Program Origination Rules, Report and Order, 2 FCC Rcd
3215, 3215 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
Main Studio Rule and Public Inspection Files, Report and Order, 13 FCC Rcd
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., Memorandum Opinion and Order, 6
FCC Rcd 3615, 3616 (1991), clarified, Memorandum Opinion and Order, 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 at. 5.
Bureau MO&O, 21 FCC Rcd at 9534.
Application for Review at 6-7.
See, e.g., Pilgrim Communications, Inc., Memorandum Opinion and Order, 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).
See NAL, P:P: 3, 4.
Jones Eastern, 7 FCC Rcd at 6802.
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., Memorandum Opinion and Order, 19 FCC Rcd 24812(Enf.
Bur. 2004) ("SM Radio, Inc."); application for review denied, Order On
Review, 23 FCC Rcd 2429 (2008).
Petition for Reconsideration at. 2-4.
Bureau MO&O, 21 FCC Rcd at 9536.
Application for review at 3-6.
Evangelism explained that the electronic form used for the 2003 ownership
report required a percentage to be entered in the "Percent of interest
held" field and that "an incorrect figure was inadvertently entered in
that field." Application for Review at 4. We remind Evangelism that it is
required to use due diligence in providing correct and non-misleading
information to the Commission, including taking steps to determine the
truthfulness of what is being submitted. See 47 C.F.R. S:S: 73.1015 and
1.17. We caution Evangelism that a failure to submit truthful and accurate
statements to the Commission pursuant to Section 73.1015 of the Rules, 47
C.F.R. S: 73.1015, could lead to the imposition of a monetary forfeiture
pursuant to 47 U.S.C. S: 503(b), license revocation pursuant to 47 U.S.C.
S: 312 and/or criminal sanctions under 18 U.S.C. S: 1001.
In relying on factual information that the Bureau did not have an
opportunity to consider, we note that Section 1.115(c) of the Rules, 47 S:
C.F.R. 1.115(c), provides that "[n]o application for review will be
granted if it relies on questions of fact or law upon which the designated
authority has been afforded no opportunity to pass." The accompanying Note
specifies that, "[s]ubject to the requirements of Section 1.106, new
questions of fact or law may be presented to the designated authority in a
petition for reconsideration." However, we find good cause for a waiver in
the circumstances of this case. In particular, it is clear from
Evangelism's application for review that it was only after the Bureau M&O
that Evangelism appreciated the potential relevance of pointing out the
error in its 2003 ownership report. Given that the Bureau's Forfeiture
Order, did not cite the 2003 ownership report in denying Evangelism's
request for a reduction, we do not believe that dismissing this aspect of
Evangelism's application for review on procedural grounds would serve the
public interest. See Pan-Am Sat Corporation, Memorandum Opinion and Order,
19 FCC Rcd 18495, 18598, n.11 (2004) (finding good cause to waive Section
1.115(c) where applicant could not have appreciated potential relevance of
information until after Office of Managing Director's decision); Lunenberg
County Public Schools, Order, 17 FCC Rcd 24179, 24184 (2001) (finding good
cause to waive section 1.115(c) where the applicant could not have
reasonably known the significance of addressing the issue at the time of
the designated authority's decision); and Mercury PCS II, LLC, Memorandum
Opinion and Order, 15 FCC Rcd 9654, 9660 n.52 (2000) (public interest is
a basis to waive Section 1.115(c)). In the future, however, we urge
applicants to present new arguments to the Bureau in a petition for
reconsideration in the first instance. We caution that similar situations
may not rise to the level of good cause justifying waiver of our rules.
47 U.S.C. S: 503(b)(2)(D).
Report and Order, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
47 C.F.R. S: 1.115.
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Federal Communications Commission FCC 08-252
Federal Communications Commission FCC 08-252