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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Vision Latina Broadcasting, Inc. Former Licensee of
Station KBPO Port Neches, Texas ) ) ) ) ) ) ) ) File No.:
EB-FIELDSCR-13-00008837 NAL/Acct. Nos.: 201232540005, 201232540006 FRN:
0010019115 Facility ID No.: 68762
Adopted: June 9, 2014 Released: June 9, 2014
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Order, we find that Vision Latina Broadcasting, Inc. (Vision
Latina), former licensee^ of Station KBPO in Port Neches, Texas
(Station), failed to make available a complete public inspection
file.^ In light of Vision Latina's poor financial condition and the
other factual circumstances of this case, however, we do not impose a
forfeiture. Nevertheless, we warn Vision Latina that future violations
may result in substantial forfeitures, regardless of its financial
2. On December 9, 2010, agents from the Enforcement Bureau's Houston
Office (Houston Office) inspected the Station's public inspection file
during regular business hours and found it was missing, among other
things, all issues-programming lists.^ The Enforcement Bureau issued a
Notice of Apparent Liability for Forfeiture and Order^ to Vision
Latina for its violations, among other things, of the Commission's
public inspection file rules.^ The 1^st NAL also directed Vision
Latina Broadcasting to "submit a statement signed under penalty of
perjury by an officer or director of the licensee that ... Station
KBPO's public inspection file is complete."^ On August 25, 2011,
Vision Latina submitted a certification that "[i]n coordination with
[an independent inspector], all missing materials cited in the ^ NAL
have been placed in the Station's Public Inspection File, and the
undersigned confirms that it is complete as of the date of this
response."^ On October 13, 2011 agents from the Houston Office
inspected the public inspection file for the Station located at its
main studio. The file made available by Station staff did not contain
any issues-programs lists.
3. On June 14, 2012, the Houston Office issued two Notices of Apparent
Liability for Forfeiture (NALs) ^ ^ to Vision Latina for violations
stemming from its incomplete public inspection file and the
certification submitted in response to the 1^st NAL. In response to
the NALs, Vision Latina asserts that it had "logs with respect to the
programming aired on the Station" in the public inspection file but
not in the issues program lists folder of the public inspection file.^
"While the logs did not provide a paragraph describing the details of
each program, the logs did include the title of the programs, the type
of programming, and the days of the week the programming was carried
on the Station."^ Vision Latina also asserts that after an independent
consultant reviewed the Station's public inspection file, its
principals immediately "reviewed the public [inspection] file
contents, and believed that all of the information identified by the
independent inspector was present in the Station's public [inspection]
file as of August 25, 2011. Only after the October 13, 2011 inspection
by the Commission did Vision come to understand that the logs they had
been maintaining had to be placed in the `Issues Programs List' folder
. . ." and had to contain a description of the programming.^
Accordingly, Vision Latina asserts it exercised at least minimal
diligence prior to submitting its certification. Finally, Vision
Latina requests that the Commission reduce or cancel the forfeitures
because it "simply cannot pay the proposed forfeiture[s]."^
4. The proposed forfeiture amounts in this case were assessed in
accordance with Section 503(b) of the Communications Act of 1934, as
amended (Act),^ Section 1.80 of the Rules,^ and the Forfeiture Policy
Statement.^ In examining Vision Latina's response, Section
503(b)(2)(E) of the Act requires that the Commission take into account
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 other such matters as justice
may require.^ As discussed below, we have considered Vision Latina's
response in light of these statutory factors and take the following
A. Provision of Incorrect Material Factual Information to the Commission
5. Vision Latina certified on August 25, 2011 that the Station's public
inspection file was complete. However, on October 13, 2012, agents
from the Houston Office found no issues programs lists in the public
inspection file. In the NALs, the Bureau concluded that had Vision
Latina exercised even minimal diligence prior to submission of its
certification, it would not have submitted incorrect and misleading
factual information in its certification. In response to the NALs,
Vision Latina clarified that after it hired an outside consultant to
correct Station KBPO's public inspection file, its principals
physically inspected and confirmed that what the outside consultant
stated qualified as issues programs lists was located in the Station's
public inspection file.^ Even though the outside consultant's advice
was incorrect, Vision Latina asserts it believed in good faith that it
was compliant and that it exercised minimal diligence by hiring an
expert, relying on his advice, and double-checking that the
consultant's work was performed.^ Based on this new information, we
agree and conclude that Vision Latina did not negligently provide
incorrect information to the Bureau.
B. Failure to Make Available a Complete Public Inspection File
6. However, we affirm the NALs' findings that Vision Latina willfully
violated Section 73.3526 of the Rules. Section 73.3526 of the Rules
states that "[e]very permittee or licensee of an AM, FM, TV or a Class
A station in the commercial broadcast services shall maintain a public
inspection file containing the material" set forth in that section.^
Section 73.3526(e)(12) of the Rules states that commercial AM and FM
broadcast stations must retain in the file "every three months a list
of programs that have provided the station's most significant
treatment of community issues during the preceding three month period.
[ . . . ] The lists described in this paragraph shall be retained in
the public inspection file until final action has been taken on the
station's next license renewal application."^ The public inspection
file must be maintained at the main studio of the station,^ and must
be available for public inspection at any time during regular business
7. As set forth in the NALs, on October 13, 2012, agents from the Houston
Office asked to inspect the Station's public inspection file. The
agents looked through the issues programs lists folder and found no
issues programs lists. Station staff was unaware of the location of
any issues programs lists during the inspection. Although Vision
Latina claims that its daily programming logs were located in the
public inspection file,^ it is undisputed that on October 13, 2012, it
failed to make any issues programs lists available to the agents.
Moreover, had the agents observed the daily programming logs, they
would have concluded that such logs did not qualify as issues programs
lists. Thus, based on the evidence before us, we find that Vision
Latina willfully violated Section 73.3526 of the Rules by failing to
make available a complete public inspection file.
C. Inability to Pay Claim
8. We grant Vision Latina's request that it not be required to pay the
$25,000 proposed forfeiture based on its demonstrated inability to
pay. With regard to an individual's or entity's inability to pay
claim, the Commission has determined that, in general, gross income or
revenues are the best indicator of an ability to pay a forfeiture.^ We
have reviewed Vision Latina's financial documentation and find that we
have sufficient basis to impose no forfeiture penalty due to
demonstrated inability to pay.
9. Ability to pay a forfeiture, however, is just one of the criteria we
must consider when determining the appropriate forfeiture penalty.^ In
cases of egregious or repeated misconduct, for example, we may decline
to reduce a forfeiture despite a demonstrated inability to pay.^ In
this case, however, while Vision Latina failed to cure its violation
of the Commission's rules, forfeiture is not appropriate here.
Although "[r]eliance on inaccurate legal advice will not absolve a
licensee of responsibility for a violation, [it] can serve as evidence
that the licensee made an effort to assess its obligations, that its
assessment was reasonable, if erroneous, and was made in good faith."^
Because Vision Latina relied on the advice of an outside consultant,
asserted it placed daily programming logs in the public inspection
file prior to the October 13, 2012 inspection, and paid in full its
prior forfeiture, we conclude that it acted in good faith and should
be afforded mitigation of the forfeiture.
10. Although we do not impose a forfeiture, we nevertheless find it
appropriate to admonish Vision Latina for its willful violation of
Section 73.3526 of the Rules. We also remind Vision Latina of its
obligation to continue to comply with the public inspection file
requirements should it acquire any broadcast licenses. Future
violations of the Rules may result in substantial monetary penalties,
regardless of Vision Latina's financial condition.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80(f)(4) of the
Rules, the proposed forfeitures associated with NAL/Account Numbers
201232540005 and 201232540006 issued to Vision Latina Broadcasting,
Inc. WILL NOT BE IMPOSED and that the finding of willful violation of
Section 73.3526 of the Rules IS AFFIRMED.^
12. IT IS FURTHER ORDERED that Vision Latina Broadcasting, Inc. IS
ADMONISHED for willful violation of Section 73.3526 of the Rules.^
13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Vision
Latina Broadcasting, Inc. at 419 Stadium Road, Port Arthur, Texas
77642 and to its counsel, Lee G. Petro, at Drinker, Biddle & Reath,
LLP, 1500 K Street NW, Suite 1100, Washington, DC 20005-1209.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
^ The contents of File No. EB-10-HU-0668 have been incorporated into File
^ Station KBPO was assigned to Christian Ministries of the Valley, Inc. on
March 27, 2013. See File No. BAL-20090521AAE. Vision Latina currently
holds no broadcast licenses.
^ See 47 C.F.R. S 73.3526.
^ See Vision Latina Broadcasting, Inc., Forfeiture Order, 27 FCC Rcd 2978
(Enf. Bur. 2012) (forfeiture paid).
^ See Vision Latina Broadcasting, Inc., Notice of Apparent Liability for
Forfeiture and Order, 26 FCC Rcd 9231 (Enf. Bur. 2011) (1^st NAL).
^ See 47 C.F.R. S 73.3526.
^ 1^st NAL at 9231.
^ Letter from Gilardo Castro, Vice President, Vision Latina Broadcasting,
Inc., to Lee. R. Browning, Resident Agent, Houston Office at 2 (Aug. 25,
2011) (LOI Response) (on file in EB-FIELDSCR-13-00008837).
^ Vision Latina Broadcasting, Inc., Notice of Apparent Liability for
Forfeiture, 27 FCC Rcd 6246 (Enf. Bur. 2012) (NAL/Account No.
201232540005, negligent misrepresentation). Vision Latina Broadcasting,
Inc., Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 6258 (Enf.
Bur. 2012) (NAL/Account No. 201232540006, public inspection file). A
comprehensive recitation of the facts and history of this case can be
found in the NALs and is incorporated herein by reference.
^ Letter from Gilardo Castro, President Vision Latina Broadcasting, Inc.,
to Lee R. Browning, Resident Agent, Houston Office, Enforcement Bureau, at
1 (July 9, 2012) (NAL Response) (on file in EB-FIELDSCR-13-00008837).
^ Id. at 1-2.
^ Id. at 2.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ NAL Response at 1-2.
^ Id. at 2.
^ 47 C.F.R. S 73.3526(a)(2).
^ 47 C.F.R. S 73.3526(e)(12).
^ 47 C.F.R. S 73.3526(b).
^ 47 C.F.R. S 73.3526(c).
^ Agents from the Houston Office looked through the contents of the entire
public inspection file but are unable to recall if the issues programs
logs described by Vision Latina were present on October 13, 2012.
^ See Long Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000)
(forfeiture not deemed excessive where it represented approximately 7.9
percent of the violator's gross revenues); Hoosier Broadcasting
Corporation, Forfeiture Order, 15 FCC Rcd 8640 (2002) (forfeiture not
deemed excessive where it represented approximately 7.6 percent of the
violator's gross revenues).
^ 47 U.S.C. S 503(b)(2)(E).
^ See, e.g., Whisler Fleurinor, Forfeiture Order, 28 FCC Rcd 1087 (Enf.
Bur. 2013) (affirming $25,000 forfeiture and rejecting inability to pay
claim because violator was previously afforded a reduction based on
inability to pay, but later committed the same violation). Accord Kevin W.
Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011) (holding that
violator's repeated acts of malicious and intentional interference
outweigh evidence concerning his ability to pay claim), aff'd, Memorandum
Opinion and Order, 28 FCC Rcd 1170 (Enf. Bur. 2013) (further request for
reconsideration pending); Hodson Broadcasting Corp., Forfeiture Order, 24
FCC Rcd 13699 (Enf. Bur. 2009) (holding that permittee's continued
unauthorized operation outweighed its inability to pay claim).
^ Hill Country Radio, Inc., Memorandum Opinion and Order and Forfeiture
Order, 14 FCC Rcd 17708 (MB 1999) (considered licensee's reliance on
incorrect advice of counsel as a mitigating factor when reducing proposed
forfeiture) See also Hualapai Broadcasters, Inc., Memorandum Opinion and
Order, 77 Rad. Reg. 2d 930 (MB 1993) (considered licensee's reliance on
inaccurate advice of counsel as evidence of good faith and as a mitigating
factor when reducing proposed forfeiture).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4);
Federal Communications Commission DA 14-787
Federal Communications Commission DA 14-787