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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Hispanic Bakersfield, LLC ) File Number: EB-06-LA-215
Licensee of Station KBBV-CA ) NAL/Acct. No.: 200732900005
Bakersfield, CA ) FRN: 0006320501
Facility ID # 69735 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 13, 2007
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 Hispanic Bakersfield, LLC ("Hispanic"), licensee of Class A
television station KBBV-CA in Bakersfield, California, apparently
willfully and repeatedly violated Section 73.1125(a) of the
Commission's Rules ("Rules"), by failing to maintain a local main
studio. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Hispanic is apparently liable
for a forfeiture in the amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. On June 14, 2006, an agent of the Enforcement Bureau's Los Angeles
Office attempted to inspect the KBBV-CA main studio/business office in
Bakersfield, California, but was unable to locate the main studio, or
a telephone number for the station in the Bakersfield telephone
directory. The Los Angeles agent was also unable to locate the KBBV-CA
public inspection file.
3. On August 23, 2006, the Los Angeles Office sent a Letter of Inquiry
("LOI") to Hispanic requesting they identify the location of the
KBBV-CA main studio and public inspection file. On September 15, 2006,
in its response to the LOI, Hispanic provided the address of its new
main studio location for KBBV-CA, as 5330 Office Center Court, Suites
28 and 29, Bakersfield, California. Hispanic also stated that it filed
a notice with the Commission on June 28, 2006, concerning the change
of location of the KBBV-CA main studio. Hispanic acknowledged "that it
did not have a fully qualified main studio for [KBBV-CA] from December
9, 2005, to June 16, 2006." Hispanic also acknowledged that the Los
Angeles agent was unable to locate the public inspection file for
KBBV-CA, which, prior to June 16, 2006, was located at the KBAK-TV
main studio, at 1901 Westwind Drive, Bakersfield, California
("Westwind Drive Location"). Hispanic states that all the employees at
the Westwind Drive Location that were knowledgeable about the KBBV-CA
public inspection file were absent the day of the inspection.
4. On January 26, 2007, a Los Angeles agent visited the new KBBV-CA main
studio located at 5330 Office Center Court in Bakersfield, California,
and found that it was regularly staffed and that located at the new
main studio was the KBBV-CA public inspection file.
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 73.1125(a) of the Rules requires the licensee of a Class A
television 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 twenty-five miles from the reference coordinates of the
center of its community of license as described in Section
73.208(a)(1). In addition, the station's main studio must serve the
needs and interests of the residents of the station's community of
license. To fulfill this function, a station must, among other things,
maintain a meaningful managerial and staff presence at its main
studio.
7. In its response to the LOI, Hispanic acknowledged that, for several
months, it did not have a "fully-qualified main studio" for KBBV-CA.
We find that Hispanic had no main studio at all, pursuant to Section
73.1125(a), for KBBV-CA for the period of December 9, 2005 to June 16,
2006. Hispanic acknowledged that it did not maintain a local main
studio for KBBV-CA, therefore, its violation was willful. The failure
to maintain a local main studio occurred on more than one day,
therefore, it was repeated. Based on the evidence before us, we find
that Hispanic apparently willfully and repeatedly violated Section
73.1125(a) of the Rules, by failing to maintain a local main studio
for KBBV-CA.
8. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for violation of the main studio rule is
$7,000. 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. Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that Hispanic is apparently liable for a
$7,000 forfeiture.
IV. ORDERING CLAUSES
9. 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, Hispanic Bakersfield, LLC,
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand dollars ($7,000) for violations of Section
73.1125(a) of the Rules.
10. 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, Hispanic Bakersfield,
LLC, SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
11. 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.
12. 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, CA, 90803 and must
include the NAL/Acct. No. referenced in the caption.
13. 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.
14. 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.
15. 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 Hispanic Bakersfield, LLC., and
Kathleen Victory, Esquire, Fletcher, Heald and Hildreth, P.L.C., its
counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director,
Los Angeles District Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.1125(a).
47 U.S.C. S 503(b).
Hispanic states that the Westwind Drive Location was the KBBV-CA main
studio location until December 9, 2005, when KBFX-CA, which also used the
Westwind Drive Location as its main studio and was owned by an affiliate
of Hispanic, was sold to Westwind Communications, LLC. After December 9,
2005, Westwind Communications, LLC, permitted Hispanic to keep the KBBV-CA
public inspection file at the Westwind Drive Location.
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 73.208(a)(1).
See Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3217-18
(1987), clarified 3 FCC Rcd 5024, 5026 (1988).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
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, 73.1125(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission