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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Univision Radio License Corporation ) File Number EB-09-NY-0185
Licensee of WQBU-FM ) NAL/Acct. No. 201032380001
Garden City, New York ) FRN 0004946141
Facility ID # 30573 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 5, 2009
By the District Director, New York Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Univision Radio License Corporation ("Univision"), licensee of
commercial station WQBU-FM, Garden City, New York, apparently
willfully violated Section 73.3526(c) of the Commission's Rules
("Rules") by failing to make available its political file during a
station inspection. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Univision is
apparently liable for a forfeiture in the amount of four thousand
2. On May 13, 2009, an agent from the Commission's New York Office of the
Enforcement Bureau ("New York Office") requested to inspect station
WQBU-FM's public inspection file at its main studio in New York, New
York during normal business hours. Station WQBU-FM was unable to
locate or make available a Political File. The Chief Operator verified
that there was no political file available. When contacted by
telephone later that same day, the station's business manager reported
that he was sure they had the files and that they would be located.
The station's business manager did not notify the agent with the
results of any search conducted.
3. On June 1, 2009, the New York Office sent a Letter of Inquiry (LOI) to
Univision asking, among other things, why WQBU was not able to produce
a political file during the station inspection on May 13, 2009. In its
response, Univision does not dispute the fact that the material was
not identified and made available to the FCC agent during the
inspection on May 13, 2009. Univision states that the volume of
material in the political file exceeded the capacity of the public
file cabinet and that the station therefore maintained a set of
three-ring binders, bearing the label "POLITICAL ADS," above the
public file cabinet. Relying on a letter issued by the Commission's
Audio Services Division in 2008, Univision claims that the fact that
the political file was in a place that was not obvious to the FCC
agent does not constitute a violation of the Commission's public file
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 or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission there under, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of the Act 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(a)(2) of the Rules requires every licensee in the
commercial broadcast services to maintain for public inspection a file
containing materials listed in that section. Sections 73.3526(b) and
73.3526(c)(1) of the Rules require that the public inspection file be
available during regular business hours at the main studio of the
station. Section 73.3526(e)(6) of the Rules requires all AM and FM
broadcast stations to place in the public files such records as are
required by Section 73.1943 to be kept concerning broadcasts by
candidates for public office. On May 13, 2009, in response to a
request made during regular business hours at the station's main
studio, station WQBU-FM was unable to make available a political file.
Although Univision now reports that the political file was located
above the public file cabinet, the fact remains that the political
file was not available for the agent to review during the inspection.
In support of its claim that there has been no violation of the public
inspection file rules, Univision erroneously relies on an Audio
Services Division case involving a station that apparently misfiled
two years of the political file within the public file itself. In the
case at issue here, the political files were not even in the public
file nor was there a note in the public file indicating that the
political files could be found in binders on top of the cabinet. Based
on the evidence before us, we find that Univision apparently
willfully violated Section 73.3526 of the Rules by failing to make
available a complete public inspection file.
6. 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 public inspection file rules
is $10,000. Because the public inspection file for station WQBU-FM
contained a portion of the required items a downward adjustment of the
base amount to $4,000 is warranted. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) 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 of
the Rules, and the statutory factors to the instant case, we conclude
that Univision is apparently liable for a $4,000 forfeiture.
IV. ORDERING CLAUSES
7. 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, Univision Radio License
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
violations of Section 73.3526 of the Rules.
8. 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, Univision Radio License
Corporation SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. If payment is made, Univision Radio
License Corporation shall send electronic notification on the date
said payment is made to NER-Response@fcc.gov.
10. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office,
201 Varick Street, Suite 1151, New York, NY 10014 and must include
the NAL/Acct. No. referenced in the caption.
11. 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.
12. 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 Univision Radio License Corporation
at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
47 C.F.R. S: 73.3526.
47 U.S.C. S: 503(b).
Letter from Peter H. Doyle, Chief, Audio Services Division, to Andrea
Cano, Oregon Alliance to Reform Media & Bruce Fife, American Federation of
Musicians, 23 FCC Rcd 1938 (2008) at 3-4.
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).
See 47 C.F.R. S:S: 73.3526(b) and (c)(1).
47 C.F.R. S: 73.3526(e)(6) and 47 C.F.R. S: 73.1943
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 47 C.F.R.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission
Federal Communications Commission