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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No. EB-06-LA-132
Una Vez Mas Las Vegas License, LLC
) NAL/Acct. No. 200632900012
Licensee of KHDF-CA, Las Vegas, NV
) FRN: 00014855969
Facility ID No. 66807
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 9, 2006
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Una Vez Mas Las Vegas License, LLC. ("Una Vez"), licensee of
Class A Television Broadcast station KHDF-CA serving Las Vegas,
Nevada, apparently willfully and repeatedly violated Sections 73.3526
of the Commission's Rules (Rules) by failing to maintain a complete
public inspection file. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Una Vez Mas Las
Vegas License, LLC, is apparently liable for a forfeiture in the
amount of eight thousand dollars ($8,000).
II. BACKGROUND
2. On May 16, 2006, an agent of the Enforcement Bureau's Los Angeles
Office conducted an inspection of the KHDF-CA's public inspection file
at the main studio for KHDF-CA at 600 Whitney Ranch, Suite C12,
Henderson, Nevada. While examining the public inspection file, the
agent observed that the file was not complete. Specifically, there
were no TV issues/program lists for any quarter before the third
quarter of 2005 and there were no records or certifications concerning
commercial limits during children's programming for the fourth quarter
of 2004, the first and third quarters of 2005, and the first quarter
of 2006. Additionally, there was no documentation in the public
inspection file that demonstrated that KHDF-CA was continuing to meet
the eligibility requirements for a Class A station.
3. On June 1, 2006, Una Vez filed with the Commission an application to
renew the KHDF-CA license. In its renewal application, Una Vez states
that it acquired KHDF-CA on September 14, 2004.
III. DISCUSSION
4. 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 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.
5. Section 73.3526 of the Rules requires that every licensee of a Class A
TV station shall maintain a public inspection file containing the
material, relating to that station, described in paragraphs (e)(1)
through (e)(11) and paragraphs (e)(13) through (e)(17) of this
section. Further, as required by Section 73.3526(b) the location of
the public file shall be maintained at the station's main studio
location. The public inspection file for KHDF-CA was found at the main
studio in Henderson, Nevada.
6. Section 73.3526(e)(11)(i) of the Rules requires licensees to place in
their public inspection file a list for each calendar quarter, to be
filed by the tenth day of the succeeding 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 TV issues/programs list. The public inspection file
for KHDF contained no issues/programs lists for any calendar quarter
before the third quarter of 2005. Una Vez became the licensee of
KHDF-CA on September 14, 2004, but failed to place in the public
inspection file TV issues/programs lists for the third and fourth
quarter of 2004 and the first and second quarter of 2005. Therefore,
Una Vez failed to comply with Section 73.3526(e)(11)(i) of the Rules.
7. Section 73.3526(e)(11)(ii) of the Rules requires that a commercial TV
station maintain records sufficient to permit substantiation of the
station's certification, in its license renewal application, of
compliance with the commercial limits on children's programming
established in Section 73.670 of the Rules. The records for each
calendar quarter must be filed in the station's public inspection file
by the tenth day of the succeeding calendar quarter (e.g., January 10
for the quarter October - December, etc.). These records shall be
retained until final action has been taken on the station's next
license renewal application. Una Vez became the licensee of KHDF-CA on
September 14, 2004, but failed to place in the KHDF-CA public
inspection file certification letters or records concerning compliance
with the commercial limits for children's programming for the fourth
quarter of 2004, the first and third quarters of 2005, and the first
quarter of 2006. Therefore, Una Vez failed to comply with Section
73.3526(e)(11)(ii) of the Rules.
8. Section 73.3526(e)(17) of the Rules requires that a Class A television
station maintain documentation sufficient to demonstrate the station
is continuing to meet the eligibility requirements set forth in
Section 73.6001 of the Rules. Specifically, Section 73.6001(b)
requires Class A TV stations to "[b]roadcast a minimum of 18 hours per
day; and . . .[b]roadcast an average of at least three hours per week
of locally produced programming each quarter." The public inspection
file for KHDF-CA contained no documentation relating to the station's
compliance with these requirements. Therefore, Una Vez failed to
comply with Section 73.3526(e)(17) of the Rules.
9. Una Vez was aware of the requirement to have a public inspection file
and the requirements concerning documentation to be maintained in that
file, given the fact it maintained such a file and maintained some of
the required documentation in the file, albeit incomplete
documentation. Therefore the violation is willful. No evidence could
be found to indicate that any of the materials missing from the public
inspection file, as detailed above, were ever maintained for the
duration of the license period prior to the Los Angeles agent's
inspection. Therefore, Una Vez'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.
10. 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. In this case, although the public
inspection file was partially complete, it did not contain several
required items, in particular, multiple quarters of the radio
issues/programs lists and multiple quarters of certification letters
or records concerning compliance with the commercial limits for
children's programming. We therefore conclude a forfeiture amount of
$8,000 is appropriate. Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we
conclude that Una Vez is apparently liable for a $8,000 forfeiture.
IV. ORDERING CLAUSES
11. 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, Una Vez Mas Las Vegas
License, LLC. is hereby NOTIFIED of this APPARENT LIABILITY FOR
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violation of Section 73.3526 of the Commission's Rules.
12. 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, Una Vez Mas Las Vegas
License, LLC. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles District
Office, 18000 Studebaker Rd., Suite 660, Cerritos, California, 90703,
and must include the NAL/Account No. referenced in the caption.
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 submitted.
16. 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, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
17. 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 Una Vez Mas Las Vegas License, LLC, at
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles District Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.3526.
47 U.S.C. S 503(b).
47 C.F.R. S 73.3526(e)(11)(i).
47 C.F.R. S 73.3526(e)(11)(ii).
See File No. BRTTA-20060601ACQ, filed June 1, 2006.
See File No. BALTTA-20040317ADY, granted April 30, 2004. According to
Commission records, the transaction was consummated on September 14, 2004.
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.
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(e)(11)(i).
47 C.F.R. S 73.3526(e)(11)(ii). In the Children's Television Act of 1990,
Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. Sections
303a, 303b and 394, Congress directed the Commission to adopt rules
limiting the amount of commercial matter that television stations may air
during children's programming, and to consider in its review of television
license renewals the extent to which the licensee has complied with such
commercial limits. Accordingly, the Commission adopted Section 73.670 of
the Rules, 47 C.F.R. S 73.670, which limits the amount of commercial
matter which may be aired during children's programming to 10.5 minutes
per hour on weekends and 12 minutes per hour on weekdays. Children's
Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6
FCC Rcd 5093, 5098 (1991). The commercial limitations became effective on
January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530
(1991). See Libco, Inc., 2005 WL 2778821 (FCC) (MB 2005).
47 C.F.R. S 73.3526(e)(11)(ii).
47 C.F.R. S 73.3526(e)(11)(ii).
47 C.F.R. S 73.6001(b).
47 C.F.R. S 73.3526(e)(17).
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