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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
EL MUNDO BROADCASTING )
CORPORATION ) File No. EB-00-IH-0160
Licensee of Stations ) NAL/Acct. No. 200132080002
WKAQ-AM, San Juan, Puerto Rico )
WUKQ-AM, Ponce, Puerto Rico )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 23, 2000 Released: October 24,
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we
find that El Mundo Broadcasting Corp. (``El Mundo'') has
apparently violated Section 73.1206 of the Commission's rules, 47
C.F.R. § 73.1206, by recording and broadcasting a telephone
conversation without first informing the party to the
conversation of its intention to do so. We conclude that El
Mundo is apparently liable for a forfeiture in the amount of six
thousand dollars ($6,000).
2. On June 19, 2000, the Commission received a complaint
from Mr. Bernardo Vazquez-Santos. Mr. Vazquez-Santos alleged
that, on May 8, 2000, Mr. Luis Francisco Ojeda, an on-air
personality for El Mundo's WKAQ-AM, called the Office of the
Legal Counsel for the Governor of Puerto Rico, where Mr. Vazquez-
Santos serves as Legal Counsel to the Governor. According to the
transcript submitted with the complaint1, the following exchange
Secretary: Legal Counsel.
Luis Francisco Ojeda (LFO): Yes, good afternoon,
(sic) with attorney
Secretary: Who's calling him?
LFO: From WKAQ, from the
Secretary: Don't go (hold on).
LFO: Uh jum. (sic)
Mr. Bernardo Vazquez-Santos (BVS): Hello.
LFO: Attorney Vazquez-Santos?
BVS: To serve you.
afternoon. This is Ojeda
BVS: Ah, how are you?2
The transcript indicates that Mr. Ojeda then engaged Mr. Vazquez-
Santos in a discussion about allegations that Mr. Vazquez-Santos
had used a facsimile machine in the Office of Legal Counsel to
send invitations to various government agency heads for a
cocktail party fundraiser in honor of the wife of a Puerto Rican
gubernatorial candidate. Mr. Vazquez-Santos also alleges that,
on May 8, 2000, El Mundo broadcast portions of this conversation
on two separate occasions on multiple broadcast stations.
3. On July 18, 2000, the Investigations and Hearings
Division, Enforcement Bureau, sent El Mundo a letter of inquiry
regarding the complaint. In its August 3, 2000 response, El
Mundo states that it broadcast a conversation with Mr. Vazquez-
Santos on May 8, 2000 two separate times without informing him of
its intention to record and broadcast the conversation.3 See
Letter Dated August 3, 2000 from Huberto E. Biaggi, Executive
Vice President & General Manager, El Mundo Broadcasting
Corporation (El Mundo Response), p. 1.
4. Section 73.1206 of the Commission's rules provides
that, before recording a telephone conversation for broadcast or
broadcasting such a conversation simultaneously with its
occurrence, a licensee shall inform any party to the call of its
intention to broadcast the conversation, except where such party
is aware, or may be presumed to be aware from the circumstances
of the conversation, that the conversation is being or likely
will be broadcast. The Commission clearly intended this rule to
protect the called party to the conversation4 and warned
licensees that Section 73.1206 requires the licensee to inform
the other party that the conversation will be recorded for
broadcast purposes before a telephone conversation is recorded
for later broadcast.5
5. El Mundo admits that, on May 8, 2000, it broadcast the
conversation referenced in the complaint on four stations at 4:34
p.m. and 5:15 p.m. El Mundo also admits that Mr. Ojeda did not
inform Mr. Vazquez-Santos prior to the recording of the
conversation that he intended to broadcast the conversation.
However, El Mundo claims that, while Mr. Vazquez-Santos was not
told that the conversation would be recorded or broadcast, he
should have presumed that El Mundo would record and broadcast the
conversation. According to El Mundo, Mr. Ojeda is a recognized
on-air personality in Puerto Rico known for reporting on the
activities of the Puerto Rican government. Because, according to
El Mundo, Mr. Vazquez-Santos was ``familiar with'' Mr. Ojeda, El
Mundo assumed Mr. Vazquez-Santos would know that the conversation
would likely be recorded and broadcast. Despite its admission
that it did not inform Mr. Vazquez-Santos of its intention to
record and broadcast this conversation, El Mundo apparently
argues that because Mr. Vazquez-Santos should have presumed his
conversation with Mr. Ojeda was going to be recorded and
broadcast, El Mundo did not violate Section 73.1206 of the
6. We reject El Mundo's argument. El Mundo concedes in
its response that Section 73.1206 of the Commission's rules
requires licensees to notify a party to a conversation of the
licensee's intention to broadcast the conversation before it
commences recording. However, it also asks the Commission to
recognize an exception, absent in the Commission's rules, that a
licensee may fail to inform a party to a conversation of the
licensee's intention to record and broadcast the conversation
where the on-air personality is well known and the other party is
a government official.
7. We decline to find that such an exception exists in the
Commission's rules. In Section 73.1206, a licensee may fail to
inform a party of the licensee's intention to broadcast a
conversation only where the party is ``aware or may be presumed
to be aware from the circumstances of the conversation'' that the
conversation likely will be broadcast. The licensee may make
such a presumption only when the party to the call is
``associated with the station,'' such as an employee or part-time
reporter, or when the party originates the call and it is obvious
that the call is ``in connection with a program in which the
station customarily broadcasts telephone conversations.'' We
find that neither of these exceptions is present in this case.
First, the parties do not dispute that Mr. Vazquez-Santos is
employed by the Governor of Puerto Rico and therefore not
affiliated with or employed by the licensee.6 Additionally, the
transcript indicates that Mr. Ojeda originated the phone call to
the Office of Legal Counsel and asked to speak with Mr. Vazquez-
Santos. El Mundo, in its response, does not dispute the
transcript or this apparent fact.
8. Since we find that the exception El Mundo seeks is not
viable and neither of the other exceptions to Section 73.1206
applies, we cannot find that El Mundo was excused from informing
Mr. Vazquez-Santos of its intention to record and broadcast the
conversation. The record demonstrates that El Mundo never told
Mr. Vazquez-Santos that it intended to record and broadcast the
conversation on May 8, 2000 and that it recorded and broadcast
this conversation over four stations and on two different
occasions. We thus conclude that El Mundo apparently violated
Section 73.1206 of the Commission's rules.
9. Section 503(b) of the Communications Act, 47 U.S.C. §
503(b), and Section 1.80(a) of the Commission's rules, 47 C.F.R.
§ 1.80(a), each state that any person who willfully or repeatedly
fails to comply with the provisions of the Communications Act or
the Commission's rules shall be liable for a forfeiture penalty.
For purposes of Section 503(b) of the Communications Act, the
term ``willful'' means that the violator knew it was taking the
action in question, irrespective of any intent to violate the
Commission's rules. See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991). In addition, a violation is ``repeated'' if
it occurs more than once. Id. at 4388.
10. Based on the evidence before us, we find that El Mundo
broadcast a recorded telephone conversation on two occasions over
four stations on May 8, 2000, in apparent willful and repeated
violation of Section 73.1206 of the Commission's rules. The
Commission's Forfeiture Policy Statement sets a base forfeiture
amount of $4,000 for the unauthorized broadcast of a telephone
conversation. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Commission's Rules, 12 FCC Rcd
17087 (1997), recon. denied FCC 99-407 (released December 28,
1999). We have reviewed El Mundo's response to our letter of
inquiry in which it admits that it recorded and later broadcast
the conversation two times over multiple stations. Since the two
different broadcasts originated from one recorded conversation,
we decline to adjust the forfeiture amount based on the muliple
broadcasts.7 However, since the conversation was broadcast over
two separate stations for which El Mundo was the licensee, we
apply an upward adjustment of $2,000 to the base forfeirture
amount. In total, based on all of the evidence before us, we find
that El Mundo is apparently liable for a forfeiture in the amount
of six thousand dollars ($6,000).
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED pursuant to Section 503(b)
of the Communications Act of 1934, as amended, 47 U.S.C. §
503(b), and Sections 0.111, 0.311 and 1.80 of the Commission's
rules, 47 C.F.R. §§ 0.111, 0.311 and 1.80, that El Mundo
Broadcasting Corp. is hereby NOTIFIED of its APPARENT LIABILITY
FOR FORFEITURE in the amount of six thousand dollars ($6,000) for
willfully violating Section 73.1206 of the Commission's rules, 47
C.F.R. § 73.1206.
12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, El Mundo SHALL PAY to the United States the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
13. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. referenced above.
14. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W,
Room 3-B443, Washington DC 20554 and MUST INCLUDE the file number
15. The Commission will 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.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
16. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554. See 47 C.F.R. § 1.1914.
17. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to Huberto
E. Biaggi, Executive Vice President and General Manager, El Mundo
Broadcasting Corporation, P.O. Box 364668, San Juan, Puerto Rico,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 Transcript of ``Ojeda Sin Limite'' Radio Broadcast'' (Attached
as Exhibit to Complaint). The transcript is a translation from
Spanish to English done by Mr. Vazquez-Santos. In addition, Mr.
Vazquez-Santos enclosed tape recordings in Spanish of the two
2 See Transcript, p. 1.
3 El Mundo broadcast the recorded conversation over the
following stations: WKAQ-AM, San Juan, WKJB-AM, Mayaguez, WUKQ-
AM, Ponce, and WABA, Aguadilla. El Mundo is the licensee for
WKAQ-AM, San Juan and WUKQ-AM, Ponce.
4 See Amendment of Section 73.1206: Broadcast of Telephone
Conversations (Report and Order), 3 FCC Rcd 5461, 5463 (1988).
5 Station-Initiated Telephone Calls Which Fail to Comply with
Section 73.1206 of the Rules, 24 RR 2d 1814 (1972).
6 See Complaint ¶ 1 and El Mundo Response ¶ 3b.
7 See Noble Broadcast Licensees, Inc., Notice of Apparent
Liability for Forfeiture, 15 FCC Rcd 8530 (EB 2000) and Nassau
Broadcasting Partners, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 1367 (EB 1999).