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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Entravision Holdings, LLC )
Licensee of: )
KMXX (FM) )
File Nos.: EB-05-SD-299
Imperial, California )
EB-05-SD-300
Facility ID # 6665 )
EB-05-SD-301
KWST (AM) )
NAL/Acct. No. 200632940005
El Centro, California )
FRN: 0001529627
Facility ID # 33298 )
KSEH (FM) )
Brawley, California )
Facility ID # 6666 )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 27, 2006
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Entravision Holdings, LLC ("Entravision"), licensee of stations
KMXX(FM), serving Imperial, California, KWST(AM), serving El Centro,
California, and KSEH(FM), serving Brawley, California, apparently
willfully and repeatedly violated Section 73.3526 of the Commission's
Rules ("Rules") by failing to maintain a complete public inspection
file for each station. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Entravision is
apparently liable for a forfeiture in the amount twelve thousand
dollars ($12,000).
II. BACKGROUND
2. On November 29, 2005, an agent from the Enforcement Bureau's San Diego
Office conducted an examination of the public inspection files for
broadcast stations KMXX(FM), KWST(AM) and KSEH(FM). The three radio
stations are licensed to Entravision and the main studio for all three
stations is located at 1803 N. Imperial Avenue, El Centro, California.
The license term for each of the stations ended on December 1, 2005.
The inspection revealed that the stations' public inspection files did
not contain all of the required quarterly radio issues/programs lists
for the entire license term.
3. In the KMXX(FM) public inspection file, the agent observed that the
quarterly radio issues/programs lists for all of 2000, the 3rd and 4th
quarter of 2001, all of 2002 to 2004, and the 1st and 2nd quarters of
2005, were missing. In the KWST(AM) public inspection file, the agent
observed that the quarterly radio issues/programs lists for the 2nd
and 4th quarters of 2001, and the 1st and 2nd quarters for 2005, were
missing. In the KSEH(FM) public inspection file, the agent observed
that the quarterly radio issues/programs lists for the 3rd and 4th
quarters of 2001, all of 2002 to 2004, and the 1st and 2nd quarters of
2005, were missing. The agent asked the Chief Engineer for the
stations about the items missing from the public inspection files, and
the Chief Engineer indicated that he did not know where the missing
items were.
4. Entravision was required to file renewal applications for KMXX(FM),
KWST(AM) and KSEH(FM) with the Commission no later than August 1,
2005, pursuant to Section 73.3539(a) of the Rules. A search of
Commission's records revealed Entravision filed timely renewal
applications for each station. Each of the renewal applications were
granted on November 29, 2005. The Public Notice announcing the renewal
grants was issued on December 2, 2005. As no petitions for
reconsideration were filed against the renewal grants, these grants
became final actions on January 2, 2006.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM and FM station licensee shall maintain a public inspection file
containing the material, relating to that station, described in
paragraphs (e)(1) through (e)(10) and paragraphs (e)(12) through e(14)
of this section as well as paragraph (e)(16) of this section. Further,
as required by Section 73.3526(b), the public inspection file shall be
maintained at the station's main studio location.
7. Section 73.3526(e)(12) of the Rules requires licensees to place in
their public inspection file, for each calendar quarter, a list of
programs that have provided the station's most significant treatment
of community issues during the preceding three month period. This list
is known as the radio issues/programs list and copies of the lists
must be maintained in the file until final action has been taken on
the station's next renewal application. The public inspection files
for KMXX(FM), KWST(AM) and KSEH(FM) contained no quarterly radio
issues/program lists for multiple quarters during the relevant license
term. Therefore, Entravision failed to comply with Section
73.3526(e)(12) of the Rules.
8. In the renewal applications filed during the relevant license period
for KMXX(FM), KWST(AM) and KSEH(FM), in response to Section III,
Question 3, Entravision certified that the public inspection files for
all three stations had the proper documentation as required by
73.3526. However, as the San Diego agent's examination revealed,
Entravision did not have a complete public inspection file for each
station at the time of the agent's inspections. Entravision was aware
of the requirement to have a complete public inspection file for
KMXX(FM), KWST(AM) and KSEH(FM), given its response on the KMXX(FM),
KWST(AM) and KSEH(FM) renewal applications. Therefore, Entravision's
violation is willful. The Chief Engineer indicated that he did not
know the whereabouts of the material missing from the public
inspection files, and no evidence could be found to indicate that any
of the missing material was ever in place. Therefore, Entravision's
violation is repeated. Where lapses occur in maintaining the public
inspection file, neither the negligent acts nor omissions of station
employees or agents, nor the subsequent remedial actions undertaken by
the licensee, excuse or nullify a licensee's rule violation.
9. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines ("Forfeiture Policy Statement"), and Section 1.80 of the
Rules, the base forfeiture for public file violations is $10,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Because the public inspection
files for KMXX(FM), KWST(AM) and KSEH(FM) each contained a portion of
the required items, a downward adjustment to $4,000 per station is
warranted. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that
Entravision is apparently liable for a $12,000 forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Entravision Holdings, LLC,
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twelve thousand dollars ($12,000) for violations of Section
73.3526 of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Entravision Holdings, LLC
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego Office, 4542
Ruffner St., Suite 370, California, 92111 and must include the
NAL/Acct. No. referenced in the caption.
14. 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 submitted.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, 445 12^th Street,
S.W., Room 1A625, Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Entravision Holdings, LLC.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.3526.
47 U.S.C. S 503(b).
47 C.F.R. S 73.1125(a).
47 C.F.R. S 73.3539(a).
See File No. BRH-20050801ATH (KMXX(FM)), filed August 1, 2005, File No.
BR-20050801ATJ (KWST(AM)), filed August 1, 2005, and File No.
BRH-20050801ATE (KSEH(FM)), filed August 1, 2005.
Public Notice: Broadcast Actions, Report No. 46123, released December 2,
2005 ("Public Notice").
See 47 C.F.R. SS 1.4(b)(4), 1.106(f).
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S 73.3526(a)(2).
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(e)(12).
See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S
1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.3526.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission