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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Uniradio Corp., ) File No. EB-04-SE-016
Holder of Permit to Transmit or ) NAL/Acct. No. 200532100003
Deliver ) FRN: 008982407
Programming to a Foreign
Broadcast Station
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 15, 2004 Released: October
20, 2004
By the Chief, Spectrum Enforcement Division, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Uniradio Corp.
(``Uniradio'') apparently liable for a forfeiture in the
amount of twenty five thousand dollars ($25,000) for
providing program material from a studio located in the
United States to a Mexican AM Station in willful and
repeated violation of the terms and conditions of its
authorization granted pursuant to Section 325(c) of the
Communications Act of 1934, as amended (the ``Act'').1
II. BACKGROUND
2. Under Section 325(c) of the Act, the
transmission or delivery of broadcast programming from a
facility in the United States to a foreign broadcast
station, for the purpose of such programming being
received in the United States, requires an application to
and permit granted by the Commission. On May 27, 2003,
Uniradio filed with the Commission an application for
authority to supply Spanish language sports programming,
namely, San Diego Padres baseball games, to Station XEMO.
Uniradio represented that Station XEMO was located in
Tijuana, Mexico and was authorized to operate on frequency
860 kHz with 5 kW power (daytime and nighttime) with a
non-directional antenna. On July 16, 2003, the
Commission's International Bureau granted Uniradio's
application and issued it the Section 325(c) permit.2
Specifically, the Section 325(c) permit authorized
Uniradio to ``locate, use or maintain a studio in the
United States'' for the purpose of transmitting or
delivering ``San Diego Padres baseball games, including a
15 minute pre-game show, in Spanish'' to Mexican Station
XEMO. The Section 325(c) permit expressly states that it
is based on Uniradio's ``representation that the
statements contained in the application[s] are true and
that the undertakings described will be carried out in
good faith,'' and that it is conditioned upon the Mexican
station's ``operation in full compliance with applicable
treaties and related provisions concerning electrical
interference to U.S. Broadcast stations.''3
3. On December 9, 2003, New Inspiration
Broadcasting Company, Inc. (``NIBC''), licensee of Station
KRLA(AM), Glendale, California, filed a petition to revoke
Uniradio's Section 325(c) permit.4 NIBC maintained, and
provided supporting engineering and technical
documentation to demonstrate, that Station XEMO was
operating at increased power levels from a new site, and
that such operations was causing substantial harmful
interference to Station KRLA(AM).5 According to NIBC,
Station XEMO was not operating with 5 kW power (daytime
and nighttime) from geographic coordinates 32? 30? 48?
North Latitude and 117? 01? 08? West Longitude, as
authorized by the Mexican government.6 Rather, NIBC
maintained that Station XEMO was operating at power levels
of 20 kW (daytime) and 10 kW (nighttime) from geographic
coordinates 32? 25? 21? North Latitude and 117? 04? 32?
West Longitude, and that such operations had not been
coordinated with the Commission's International Bureau in
accordance with the 1986 U.S.-Mexico treaty7 that governs
the coordination of medium frequency AM band stations.8
4. On February 20, 2004, the Enforcement
Bureau's Spectrum Enforcement Division (``Division'') sent
Uniradio a letter of inquiry (``LOI'').9 In its response
to the LOI,10 Uniradio stated that it learned, after it
applied for and was granted the Section 325(c) permit,
that Station XEMO had increased power from a new site.
Specifically, Uniradio stated that its General Manager,
Ricardo Astiazaran, became aware ``at some point prior to
September 2003'' that the Mexican government had modified
Station XEMO's authorization to allow transmission at
increased power levels from a new antenna site,11 and
further, that Uniradio became aware on or about September
15, 2003, that Station XEMO, in fact, was operating at the
increased power levels from the new antenna site.12
Uniradio admitted that, it delivered sports programming to
Station XEMO from mid-September to early October 2003, and
that it resumed delivering such programming on March 5,
2004, after being notified on or about November 18, 2003,
by Station KRLA(AM) of the alleged interference problem.13
Uniradio further admitted that the modifications to
Station XEMO may have increased harmful interference to
Station KRLA(AM).14 However, Uniradio claimed that any
increase in interference was de minimis,15 and that the
interference issue was being addressed through inter-
governmental discussions (i.e., between the Secretaria de
Comunicaciones y Transportes (``SCT'') and the U.S.
Department of State, with technical assistance from the
Commission). In addition, Uniradio argued that Station
XEMO was cooperating in an effort to resolve the issue and
had agreed to conduct interference testing and operate at
a reduced power level of 5 kW at a reduced bandwidth until
the conclusion of testing and inter-governmental
coordination.16 Uniradio asserted that, under the
circumstances, any enforcement action by the Commission,
including revocation of its Section 325(c) permit, is not
warranted.17
5. On March 26, 2004, NIBC filed a reply to
Uniradio's response.18 NIBC maintained, and provided
evidence, that Station XEMO's operations at its current
antenna site has created further overlap of its contour to
Station KLRA(AM)'s protected 0.5 mV/m contour.19 NIBC
further maintained that, due to the increased overlap,
Station XEMO's utilization of a narrow bandwidth and
reduction to a power level of 5 kW have not proven
effective in redressing the continuing substantial
interference to Station KRLA(AM).20 Finally, NIBC
maintained that Uniradio knew or should have known that
Station XEMO's operations at its current site had not been
coordinated and authorized consistent with the U.S.-
Mexico treaty, given that Uniradio and Station XEMO not
only share common shareholders, but are both controlled by
Gustavo Enrique Astiazaran.21
III. DISCUSSION
6. Section 325(c) of the Act, as previously
noted, prohibits the transmission or delivery of
programming from a broadcast studio, place or other
apparatus within the United States to a radio station in a
foreign country ``for the purpose of being broadcast from
any radio station there having a power output of
sufficient intensity and/or being so located
geographically that its emissions may be received
consistently in the United States, without first obtaining
a permit from the Commission upon proper application
therefor.''22 Section 325(c) serves to prevent
interference to broadcast stations' signals, as well as
the introduction of broadcast material deemed inimical to
the public interest, within the United States.23
7. In the instant case, Uniradio admitted that,
at the time it commenced delivery of the San Diego Padres
games and related programming to Station XEMO, it knew the
station's facilities had been modified. However, given
Uniradio's apparent control of and relationship to Station
XEMO,24 it would appear that, at the time it applied for
the Section 325(c) permit, it knew or had reason to know
that the station's facilities recently had been modified
by the Mexican government and that such modifications were
not coordinated with and approved by the Commission's
International Bureau and thus were not in compliance with
the applicable U.S.-Mexico treaty25 -- notwithstanding the
fact that Uniradio's Section 325(c) permit is explicitly
conditioned upon such compliance with the treaty ``and
related provisions concerning harmful interference to U.S.
Broadcast stations.'' Moreover, in apparent defiance of,
or disregard for, such explicit conditions, Uniradio
further admitted that it continued to deliver programming
after it was on notice, in November of 2003, that, as
modified, Station XEMO's operations were causing
substantial -- not de minimis -- harmful interference to a
licensed U.S. broadcast station. Based on the record
before us, we thus find that, by delivering cross-border
programming to Station XEMO, Uniradio undermined one of
the primary objectives of Section 325 of the Act and
apparently willfully and repeatedly violated the express
terms and conditions of its Section 325(c) permit.
8. Section 503(b)(1)(A) of the Act,26 and
Section 1.80(a)(2) of the Rules,27 provide that any person
who willfully or repeatedly fails to substantially comply
with the terms and conditions of a Commission issued
permit, license or other authorization shall be liable for
a forfeiture penalty. The forfeiture amount for entities
other than broadcast licensees or permittees, cable
television operators and common carriers may not exceed
$11,000 for each violation or each day of a continuing
violation, up to a maximum of $87,500 for any single
continuing violation.28 In determining the appropriate
forfeiture amount, we must consider the factors enumerated
in Section 503(b)(2)(D) of the Act, such as ``the nature,
circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability,
any history of prior offenses, ability to pay, and such
other matters as justice may require.''29
9. Neither the Forfeiture Policy Statement
nor the rules establish a base forfeiture amount for
supplying program material to a foreign broadcast station
in violation of the terms of an authorization granted
pursuant to Section 325(c) of the Act.30 However, we
believe a substantial forfeiture is warranted.
Considering the facts of this case -- including the fact
that Uniradio's violation continued long after it not only
knew or had reason to know that Station XEMO's modified
operations were not in compliance with the applicable
treaty, and further after it was notified that such
modified operations was causing substantial harmful
interference to a licensed U.S. broadcast station -- we
find that it is appropriate to propose a $25,000
forfeiture.31 In so proposing the $25,000 forfeiture, we
understand that coordination of Station XEMO's operations
has recently been completed in compliance with the U.S.-
Mexico treaty. However, consistent with precedent, we do
not find that subsequent remedial measures lessen or
excuse its past violations of the Act.32
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that,
pursuant to pursuant to Section 503(b) of the Act33 and
Sections 0.111, 0.311 and 1.80 of the Rules,34 Uniradio
Corp. IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty five thousand dollars
($25,000) for willfully and repeatedly violating the
express terms and conditions of its Section 325(c) permit.
11. IT IS FURTHER ORDERED THAT,
pursuant to Section 1.80 of the Rules, within thirty days
of the release date of this Notice of Apparent Liability
for Forfeiture and Order, Uniradio Corp. 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
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. Payment by overnight mail may be
sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may
be made to ABA Number 071000013, receiving bank Bank One,
and account number 1165259. Requests for full payment
under an installment plan should be sent to: Chief,
Revenue and Receivables Group, 445 12th Street, S.W.,
Washington, D.C. 20554.35
13. The response, if any, must be
mailed to the Office of the Secretary, Federal
Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554, ATTN: Enforcement Bureau -
Spectrum Enforcement Division, 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; 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 NAL under an installment plan should be
sent to: Chief, Revenue and Receivable Operations Group,
445 12th Street, S.W., Washington, D.C. 20554.36
16. IT IS FURTHER ORDERED that a copy
of this Notice of Apparent Liability for Forfeiture and
Order shall be sent by first class mail and certified mail
return receipt requested to Gustavo Enrique Astiazaran,
President, Uniradio Corp., 5030 Camino De La Siesta, Suite
403, San Diego, California 92108, to counsel for Uniradio
Corp., Mark Del Bianco, Esq., 3929 Washington Street,
Kensington, Maryland 20895, and to counsel for New
Inspiration Broadcasting Company, Inc., Ann Bavender,
Fletcher, Heald & Hildreth, PLC, 1300 North 17th Street,
11th Floor, Arlington, Virginia 22209-3801.
17. IT IS FURTHER ORDERED that the
Petition to Revoke filed by New Inspiration Broadcasting
Company, Inc., on December 9, 2003, IS DISMISSED as moot,
and that proceeding IS HEREBY TERMINATED.37
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
Division
Enforcement Bureau
_________________________
147 U.S.C. § 325(c).
2See File No. 325-NEW-20030527-00005 (granted July 16,
2003) (``Section 325(c) permit'').
3Id.
4See Petition to Revoke (December 9, 2003) (``Petition'')..
5Id. at Exhibits 1-3.
6Id. at Exhibits 1-3.
7See Agreement Between the Government of the United States
of America and the Government of the United Mexican States
Relating to the AM Broadcasting Service in the Medium
Frequency Band, 1986.
8Petition at 3 and Exhibits 2-3.
9See Letter from Joseph P. Casey, Chief, Spectrum
Enforcement Division, Enforcement Bureau, to Gustavo
Enrique Asitiazaran, President, Uniradio Corp. (February
11, 2004).
10See Letter from Mark C. Del Bianco, Esq. to Marlene H.
Dortch, Secretary, Federal Communications Commission (March
15, 2004) (``Response'').
11Id. at 2-3.
12Id. at 3.
13Id. at 2 and Attachment 1 at ¶ 7.
14Id. at 2 and Attachment 1 at ¶ 3. In this connection,
Uniradio noted that ``Station KRLA has for years been
receiving interference from the broadcast signal of Station
XEMO because the stations have had overlapping service
areas . . . throughout the same period, Station KRLA's
signal created interference to the Station XEMO signal.''
Attachment 1 at ¶ 2.
15See Response at 2-4.
16 See Response at 2 and Attachment 1 at ¶¶ 11-14 and
Exhibit 3 at¶¶ 3-12 (Declaration of Luis Carlos Astiazaran,
director of Radiodifusora XEMO, S.A. de C.V.
(``Radiodifusora XEMO''), licensee of Station XEMO).
17See Response at 2.
18See Reply of New Inspiration Broadcasting Company, Inc.
to Response to Enforcement Bureau Investigation Letter
(March 26, 2004) (``Reply'').
19Id. at 2-4.
20Id. at 2-3 and attached Statement by Herman E. Hurst,
Jr., Carl T. Jones Corp., ``Statement Regarding Prohibited
Contour Overlap between Station XEMO, Tijuana, MX and KRLA,
Glendale, CA'' at 2 (opining that ``XEMO must reduce power
to 2.3 kW during daytime hours to maintain its current
predicted 0.5 mV/m contour within the contour predicted to
exist from the notified and accepted 5 kW facility. This
variance is due to the increase in saltwater path existing
between the respective transmitter sites of XEMO and the
protected service area of KRLA'').
21Uniradio acknowledged that it has ``common shareholders''
with Station XEMO's Mexican licensee, Radiofusora XEMO.
See Response at Attachment 1 at ¶ 8. However, it appears
that Radiofusora XEMO, in fact, may be controlled by
Uniradio's president Gustavo Enrique Astiazaran. See Reply
at 4-5; see also Marcelo Ballve's, Border radio: Tijuana's
Uniradio wants the best of both worlds -- hometown fans
plus San Diego's Hispanics, Latin Trade, December 2002
(stating that Tijuana's family-owned Uniradio ``need[s]
no passport to cross borders'' to serve ``the number
of Hispanic listeners growing in San Diego with programming
provided by its several Mexican broadcast stations'');
http://www.signonsandiego.com/news.features/tjarts/televis-
ion.html (stating that Gustavo Astiazaran Rosas acquired
Station ``XEMO/AM 860 ``La Poderosa'' in 1972, and has
since acquired ``five radio stations in Tijuana, one in
Mexicali and four in Sonora'' and that ``the stations are
promoted and marketed in San Diego via Uniradio ....'').
22See note 2, supra.
23See American Broadcasting Cos., Inc., 35 FCC 2d 1, 5-6 ¶
9 (1972); see also Fox Television Stations, Inc., 77 RR 2d
132, 133, 137-38 ¶¶ 5, 30, 33-35 (1994), vacated and
remanded on other grounds, Channel 51 of San Diego v. FCC,
79 F.3d 1187, 1188-89 (D.C. Cir. 1996), rev'd on remand,
Fox Television Stations, Inc., 11 FCC Rcd 14870, 14875-78
¶¶ 16-25 (1996); aff'd sub nom, Radio Television S.A. de
C.V. et al. v. FCC, 130 F.3d 1078 (D.C. Cir. 1997).
24See note 21 and accompanying text, supra.
25Indeed, we note that the timing of Station XEMO's
authorization for modifications and its modified operations
seems to coincide with Uniradio's application to deliver
and its delivery of the San Diego Padres games and related
programming. Uniradio stated that on March 6, 2003,
Station XEMO's authorization was modified by the Mexican
government, and our records reflect that on May 27, 2003,
Uniradio filed its Section 325(c) application. See
Response, Attachment 1 at ¶ 3. Uniradio also stated that
on or about September 15, 2003, Station XEMO began
operating as modified, and Uniradio began delivering the
cross-border programming. Id. at ¶ 6.
2647 U.S.C. § 503(b)(1)(A).
2747 C.F.R. § 1.80(a)(2).
28See 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(b)(3).
2947 U.S.C. § 503(b)(2)(D); The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules
to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17110 (1997), recon. denied 15 FCC Rcd 303 (1999)
(``Forfeiture Policy Statement'').
30The fact that there is no established base forfeiture
amount for this violation does not indicate that no
forfeiture should be imposed. The Forfeiture Policy
Statement states that ``... any omission of a specific rule
violation from the ... [forfeiture guidelines] ... should
not signal that the Commission considers any unlisted
violation as nonexistent or unimportant.'' Forfeiture
Policy Statement, 12 FCC Rcd at 17099. The Commission
retains the discretion, moreover, to depart from the
Forfeiture Policy Statement and issue forfeitures on a
case?by?case basis, under its general forfeiture authority
contained in Section 503 of the Act. Id.
31See Pacific Spanish Network, Inc., DA 04-2259 (Enf. Bur.
released July 30, 2004) (``PSN'') (proposing a $20,000
forfeiture for supplying cross-border programming to a
Mexican station, which was not in compliance with the
applicable treaty and which caused harmful interference to
licensed U.S. broadcast stations). The Section 325(c)
permittee in PSN continued to deliver cross-border
programming after it learned that the station's operations
were not in compliance and were interfering with U.S.
broadcast station's signals, but ultimately ceased delivery
of such programming and cancelled its permit. In contrast,
Uniradio continued to deliver programming throughout the
San Diego Padres' season. Under the circumstances,
Uniradio's continuing violations warrant a higher
forfeiture.
32See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 7891
(2002), forfeiture ordered, 17 FCC Rcd 21866, 21875-76 ¶¶
26-28 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 ¶
7 (1994); TCI Cablevision of Maryland, Inc., 7 FCC Rcd
6013, 6014 ¶ 8 (1992).
3347 U.S.C. § 503(b).
3447 C.F.R. § 0.111, 0.311 and 1.80.
35See 47 C.F.R. § 1.1914.
36See 47 C.F.R. § 1.1914.
37For purposes of the forfeiture proceeding initiated by
this NAL, Uniradio Corp. shall be the only party.