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                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554

In the Matter of                  )
                                 )
Hispanic Broadcast System, Inc.   )   EB-04-IH-0381
                                 )   Facility ID No. 27291
Licensee of Noncommercial         )   NAL/Account No. 200532080121
Educational Station WQQZ(FM),     )   FRN 0006596340 
Clermont, Florida


         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:  02/08/2005                                   
Released:   02/09/2005

By the Chief, Enforcement Bureau:

I.     INTRODUCTION

     1.   In this Notice of Apparent Liability for 
Forfeiture (``NAL''), we find that Hispanic Broadcast 
System, Inc. (``HBS''), licensee of noncommercial 
educational Station WQQZ(FM), Clermont, Florida, has 
apparently violated section 399B of the Communications Act 
of 1934, as amended (the ``Act''), 47 U.S.C. § 399b, and 
section 73.503 of the Commission's rules, 47 C.F.R. § 
73.503, by willfully and repeatedly broadcasting prohibited 
advertisements.  Based upon our review of the facts and 
circumstances of this case, we conclude that HBS is 
apparently liable for a monetary forfeiture in the amount of 
$10,000.

II.     BACKGROUND

     2.   This case arises from a complaint made to the 
Commission in July 2004, alleging that noncommercial 
educational Station WQQZ(FM) broadcast prohibited 
underwriting announcements during the month of June 2004.1  
Thereafter, the Bureau inquired of the licensee concerning 
the allegations contained in the complaint.2  HBS responded 
substantively to the LOI 3 on November 12, 2004.4  

III.     DISCUSSION

     3.   Under section 503(b)(1) of the Act, any person who 
is determined by the Commission to have willfully or 
repeatedly failed to comply with any provision of the Act or 
any rule, regulation, or order issued by the Commission 
shall be liable to the United States for a forfeiture 
penalty.5  In order to impose such a penalty, the Commission 
must issue a notice of apparent liability, the notice must 
be received, and the person against whom the notice has been 
issued must have an opportunity to show, in writing, why no 
such penalty should be imposed.6  The Commission will then 
issue a forfeiture if it finds, by a preponderance of the 
evidence, that the person has willfully or repeatedly 
violated the Act or a Commission rule.7  As described in 
greater detail below, we conclude under this procedure that 
HBS is apparently liable for a forfeiture in the amount of 
$10,000 for its apparent willful and repeated violations of 
the Commission's underwriting rules. 

    A.   Hispanic Has Willfully and Repeatedly Broadcast 
       Advertisements in Violation of Section 399B of the 
       Act and Section 73.503 of the Commission's Rules

     4.   Advertisements are defined by the Act as program 
material broadcast "in exchange for any remuneration" and 
intended to "promote any service, facility, or product" of 
for-profit entities.8  The pertinent statute specifically 
provides that noncommercial educational stations may not 
broadcast advertisements.9  Although contributors of funds 
to such stations may receive on-air acknowledgements, the 
Commission has held that such acknowledgements may be made 
for identification purposes only, and should not promote the 
contributors' products, services, or businesses.10  
Specifically, such announcements may not contain comparative 
or qualitative descriptions, price information, calls to 
action, or inducements to buy, sell, rent or lease.11  At 
the same time, however, the Commission has acknowledged that 
it is at times difficult to distinguish between language 
that promotes versus that which merely identifies the 
underwriter.  Consequently, the Commission expects only that 
licensees exercise reasonable, ``good faith'' judgment in 
this area.12
       
     5.   At issue here are two underwriting announcements 
that HBS admits that Station WQQZ(FM) broadcast from May 31 
through June 27, 2004.13  HBS acknowledges that it received 
remuneration for airing the messages on behalf of the 
station's underwriters, ``Old Town'' and ``Multi-Channel 
Marketing,'' that both are for-profit entities, and that the 
two messages were repeated a total of 288 times during the 
stated period.14  With respect to Old Town, HBS represents 
that the station broadcast several additional announcements 
on its behalf during September 2004, which, like those it 
previously aired, provided information to listeners 
concerning the weekly local event ``Fiesta en Old Town,'' 
which the station cosponsored.15  Although HBS provided 
contract information and broadcast transcripts pertaining to 
such later announcements, it did not identify the number of 
times or the specific dates on which it aired those later 
messages.16  

     6.   We first note that both of the foregoing 
announcements were broadcast in Spanish, and that HBS takes 
exception to certain aspects of the translations that the 
Bureau included with its LOI.17   Having reviewed HBS's 
textual exceptions, we do not believe that they alter 
materially the overall context or meaning of the 
underwriting messages in either instance.  However, we 
accept HBS's alternate phrasings insofar as they represent 
the basis by which it attempted to exercise its ``good 
faith'' discretion under Xavier, supra.  Thus, we have 
revised our attached transcripts according to HBS's 
translations.

     7.   After careful review of the record in this case, 
however, we find that both announcements apparently exceed 
the bounds of what is permissible under section 399B of the 
Act, and the Commission's pertinent rules and policies, in 
light of the ``good faith'' discretion afforded licensees 
under Xavier, supra.  We so conclude because the Old Town 
announcement invites or urges business patronage, and the 
Multi-Channel Marketing announcement seeks impermissibly to 
distinguish favorably the underwriter from its competitors 
by implying that it offers superior service, and by listing 
its products in such a manner that suggests an overall 
promotional intent.
      
     8.   With regard to the Old Town announcement, we 
specifically reject HBS's contention that the message 
inviting listeners to the ``Fiesta en Old Town'' is 
acceptable because no event admission or parking fees were 
charged, and that this factor rendered it a ``not-for-profit 
type of event'' intended to benefit listeners alone.18  HBS 
has not established, however, that either Old Town or any of 
the vendors that its messages promoted, qualify as not-for-
profit entities, or that the event in question received 
official recognition as such. 19  Contrary to HBS's 
contentions, the Commission has held that the offer of free 
products or services by for-profit underwriters to be 
promotional and prohibited because they seek to induce 
business patronage.20  In this case, the announcement's 
specific mention of the ``crafts, seventy specialized 
tables, eight restaurants and eighteen amusement park 
rides,'' 21 in conjunction with Old Town's offer of free 
admission and parking, appears to have jointly benefited the 
presumably for-profit vendors and other concessionaires 
operating at the underwriter's event by inducing or 
encouraging listener attendance.  Such references render the 
announcement to be promotional of for-profit entities, and 
are thus prohibited.22    

     9.   HBS further contends that the Multi-Channel 
announcement includes only a ``generic description of 
services provided by the sponsor that would be of interest 
to [listeners]'' that is in accordance with the Commission's 
rules and precedent.23   We reject this claim.  To the 
contrary, the promotional intent of this announcement is 
demonstrated by its reference to Multi-Channel as an 
``established dealer in Central Florida for the past ten 
years,'' that offers ``installation services in twenty four 
hours.''24  By thus seeking to distinguish Multi-Channel 
from its competitors that are less experienced or are less 
responsive to their customers, HBS promotes its for-profit 
underwriter. 25  We find, also, that the message appears to 
exceed the ``identification only'' purpose of underwriting 
announcements by setting forth an excessively detailed 
``menu listing'' of services offered by the underwriter, 
which belies an overall promotional intent.26  Finally, we 
note that the Commission has long held licensees responsible 
for ensuring that any material broadcast in a foreign 
language conforms to the requirements of the Act and the 
Commission's rules.27  To the extent that HBS has ignored 
its duties in this regard, we remind it to take appropriate 
care in the future to avoid further lapses of this type.     

     B.  Proposed Action

     10.  Section 503(b) of the Act and section 1.80(a) of 
the Commission's rules both state that any person who 
willfully or repeatedly fails to comply with the provisions 
of the Act, the rules or Commission orders shall be liable 
for a forfeiture penalty.28  The Commission's Forfeiture 
Policy Statement sets a base forfeiture amount of $2,000 for 
violation of the enhanced underwriting requirements.29  The 
Forfeiture Policy Statement also provides that the 
Commission shall adjust a forfeiture based upon 
consideration of 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.''30  

     11.  In this case, it appears that, from May 31 through 
June 27, 2004, HBS willfully and repeatedly broadcast 
advertisements in violation of section 399B of the Act and 
section 73.503(d) of the Commission's rules.  We believe 
that a substantial forfeiture is necessary because of the 
lengthy period of time over which the prohibited 
announcements were aired, a full month, and the 288 times 
that the announcements were repeated during that period.  
Nevertheless, we believe the potential liability if we 
simply applied the $2,000 base amount to each of the 288 
apparent violations would be excessive here.  Based on all 
the circumstances, and after examining forfeiture actions in 
other recent underwriting cases, we believe that a proposed 
forfeiture of $10,000 is appropriate here.31  

     12.  Accordingly, applying the Forfeiture Policy 
Statement and the statutory factors to this case, we 
conclude that HBS is apparently liable for a forfeiture in 
the amount of $10,000, for violating the Commission's 
underwriting rules.  We will not hesitate to take even 
stronger enforcement action against noncommercial 
educational licensees that engage in similarly serious 
violations of our underwriting requirements.

IV.     ORDERING CLAUSES

     13.    In view of the foregoing, we conclude that a 
monetary sanction is appropriate.  Accordingly, pursuant to 
section 503(b) of the Communications Act of 1934, as 
amended, and sections 0.111, 0.311 and 1.80 of the 
Commission's rules, Hispanic Broadcast Systems, Inc., 
licensee of noncommercial educational Station WQQZ(FM), 
Clermont, Florida, is hereby NOTIFIED of its APPARENT 
LIABILITY FOR A FORFEITURE in the amount of $10,000 for 
willfully and repeatedly broadcasting advertisements in 
violation of section 399B of the Act, 47 U.S.C. § 399b, and 
section 73.503 of the Commission's rules, 47 C.F.R. § 
73.503.
      
     14.  IT IS FURTHER ORDERED, pursuant to section 1.80 of 
the Commission's rules, that within thirty days of the 
release of this Notice, HBS SHALL PAY the full amount of the 
proposed forfeiture or SHALL FILE a written statement 
seeking reduction or cancellation of the proposed 
forfeiture.

     15.  Payment of the forfeiture must be made by mailing 
a check or similar instrument, payable to the order of the 
Federal Communications Commission.  The payment must include 
the NAL Acct. No. and FRN 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 60601.  Payment by 
wire transfer may be made to ABA Number 071000013, receiving 
bank Bank One, and account number 1165259. 

     16.  The response, if any, must be mailed to William H. 
Davenport, Chief, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, 445 
12th Street, S.W, Room 4-C330, Washington DC 20554 and MUST 
INCLUDE the NAL/Acct. No. referenced above.

     17.  The Commission will not consider reducing or 
canceling a forfeiture in response to a claim of inability 
to pay unless the respondent 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 
respondent'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.

     18.  Requests for payment of the full amount of this 
Notice of Apparent Liability under an installment plan 
should be sent to: Chief, Revenue and Receivables Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.32

     19.  IT IS FURTHER ORDERED that a copy of this Notice 
shall be sent, by Certified Mail/Return Receipt Requested, 
to Hispanic Broadcast System, Inc., P.O. Box 1553, 
Quebradillas, Puerto Rico 00678, and to its counsel, James 
L. Oyster, Esq., 108 Oyster Lane, Castleton, Virginia 22716-
2839. 

                         FEDERAL COMMUNICATIONS COMMISSION

                         
     
                         David H. Solomon
                         Chief, Enforcement Bureau





































                            ATTACHMENT

The following text was transcribed from underwriting 
announcements broadcast over noncommercial educational 
Station WQQZ(FM), Clermont, Florida. 

Old Town

This Sunday the 27th, the Fiesta Sundays in Old Town come to 
an end.  Live music from 2 until 6 at night, on Old Town's 
principal stage.  With ``La Sonora de Orlando.''  Live 
transmissions through 88.7 FM.  Fiesta Sundays in Old Town.  
With crafts, seventy specialized tables, eight restaurants 
and eighteen amusement park rides.  One should not forget 
the party beads.  Enjoyment for the whole family in Old 
Town.  One mile east from I-4, exit 64A on Road 192,  
Kissimmee.  Information 407-396-4888 and in old-town.com.  
Fiesta Sundays in Old Town will end this Sunday, the 27th 
with ``La Sonora de Orlando.''  A present for the people, 
presented by Telemundo Channel 40 and the ``salsero power'' 
of 88.7 FM.

Multi-Channel Marketing

Multi-Channel Marketing, an established dealer in central 
Florida for the past ten years, sponsors the ``Latin Power'' 
and offers the services and systems from Dish network with a 
100% digital signal on audio and video, and more than 30 
channels in Spanish, such as ``TV Colombia,'' ``Telemundo,'' 
``Galavision,'' ``Deportes,'' ``FOX,'' ``ESPN,'' ``Cadena 
Sur,'' ``TV Azteca,'' ``TV Chile,'' ``Tele Gol,'' 
``Univision,'' and ``Playboy'' in Spanish, included in the 
Hispanic package.  Spanish movie channels twenty-four hours 
and others with classic movies like ``Cine Latino,'' and 
``TV Colombia.''  Also, local channels and all the Dish 
Network channels.  Premium channels included on additional 
plans.  Multi-Channel Marketing.  Business hours from 9:00 
a.m. until 9:00 p.m., seven days a week.  Installation 
services in twenty-four hours.  Information 407-857-1838 and 
407-468-3520. 
_________________________

1 See e-mail referral from Diane Law-Hsu, Tampa Field 
Office, to David Brown, Assistant Chief, Investigations and 
Hearings Division, Enforcement Bureau, dated July 23, 2004  
(``Complaint'').

2 Letter from William D. Freedman, Deputy Chief, 
Investigations and Hearings Division, Enforcement Bureau, to 
HBS, dated October 7, 2004 (``LOI'').

3 Letter from James L. Oyster, Esq., to Kenneth M. Scheibel, 
Jr., Attorney, Investigations and Hearings Division, 
Enforcement Bureau, dated November 12, 2004 (``Response'').

4 In its response, HBS requested also, pursuant to 47 C.F.R. 
§ 0.459, that the Commission afford confidentiality to 
certain proprietary financial information included therein.  
Response at Exhibit 4.  Because this NAL discusses only that 
information already made public by HBS, i.e., the text of 
the announcements broadcast, the identity of the 
underwriters as revealed in such announcements, and when and 
how many times the announcements were aired, we need not 
rule on  the confidentiality request.  Until we so rule, we 
will honor HBS's request for confidential treatment of 
certain internal documents and business information that it 
has supplied to the Bureau during the course of this 
investigation.  See 47 C.F.R. § 0.459(d)(1).

547 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also 
47 U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14 
U.S.C. § 1464).  Section 312(f)(1) of the Act defines 
willful as ``the conscious and deliberate commission or 
omission of [any] act, irrespective of any intent to 
violate'' the law.  47 U.S.C. § 312(f)(1). The legislative 
history to section 312(f)(1) of the Act clarifies that this 
definition of willful applies to both sections 312 and 
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 
51 (1982), and the Commission has so interpreted the term in 
the section 503(b) context.  See, e.g., Application for 
Review of Southern California Broadcasting Co., Memorandum 
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern 
California Broadcasting Co.'').  The Commission may also 
assess a forfeiture for violations that are merely repeated, 
and not willful.  See, e.g., Callais Cablevision, Inc., 
Grand Isle, Louisiana, Notice of Apparent Liability for 
Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a 
Notice of Apparent Liability for, inter alia, a cable 
television operator's repeated signal leakage).  
``Repeated'' means that the act was committed or omitted 
more than once, or lasts more than one day.  Southern 
California Broadcasting Co., 6 FCC Rcd at 4388, ¶ 5; Callais 
Cablevision, Inc., 16 FCC Rcd at 1362 ¶ 9.

647 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

7See, e.g., SBC Communications, Inc., Forfeiture Order, 17 
FCC Rcd 7589, 7591 ¶ 4 (2002) (forfeiture paid). 

8 47 U.S.C. § 399b(a).

9 Id.

10 See  In the Matter of the Commission Policy Concerning 
the Noncommercial Nature of Educational Broadcasting 
Stations, Public Notice (1986), republished, 7 FCC Rcd 827 
(1992) (``Public Notice'').  

11 Id.

12 See Xavier University, Memorandum Opinion and Order, 5 
FCC Rcd 4920 (1990).

13 Response at Exhibit 1, Declaration of Hispanic's General 
Manager, Daniel Pol.

14 Id.  

15 Id. at Exhibit 2, Supplement to Response.    

16 Our action herein does not reflect consideration of the 
later messages that Hispanic aired on behalf of Old Town.  
We retain discretion to make separate inquiry of these 
messages at a later date.

17 Response at Exhibit 1.  Hispanic argues that the Old Town 
announcement should be interpreted to read ``this Sunday the 
27th, the fiesta Sunday in Old Town comes to an end,'' as 
opposed to ``[t]his Sunday the 27th is the end of the Party 
Sunday in Old Town;'' and that the phrase ``[a]h! Do not 
forget the party beads!'' should alternatively be read to 
mean ``one should not forget the party beads.''  Hispanic 
claims that the Multi-Channel Marketing announcement should 
be interpreted as precisely stating that ``[Multi-Channel 
Marketing] sponsors the Latin Power [i.e., Station WQQZ(FM)] 
and offers the services and systems from Dish Network with 
100% digital signal on audio and video, and more than 30 
channels in Spanish,'' instead of [Multi-Channel Marketing] 
sponsors the Latin power and offers the Dish Networks 
service system.''  Hispanic argues also that the same 
message stated that ``premium channels included on 
additional plans,'' not ``different plans and channel 
packages available, premium channels and additional plans.''  
Id.
 
18 Response at Exhibit 1.

19 Cf. Commission Policy Concerning the Noncommercial Nature 
of Educational Broadcast Stations, Report and Order, 90 FCC 
2d 895, 900 n.16 (1982), recon., 97 FCC 2d 255 (1984) 
(``1982 Policy Statement'') (arraying types of institutions 
that qualify under IRS guidelines as not-for-profit 
organizations).

20 See Public Notice, supra. 

21 Response at Exhibit 1.

22 The fact that the event was cosponsored by the 
noncommercial educational station would not alter this 
analysis, inasmuch as the Commission prohibits the joint-
promotion of such events with for-profit entities. See 
Isothermal Community College (WNCW(FM)), Memorandum Opinion 
and Order, 16 FCC Rcd 21360 (Enf. Bur. 2001), modified, 17 
FCC Rcd 22666 (Enf. Bur. 2002).

23 Response at Exhibit 1.
 
24 Id.

25 See, e.g., Tri-State Inspirational Broadcasting 
Corporation, Memorandum Opinion and Order, 16 FCC Rcd 16800 
(Enf. Bur. 2001) (promotional reference was found where 
jeweler indicated that he obtained gemstones directly from 
his diamond cutter, because the distinction implied that 
this practice was superior to competitors who drew supply 
from other sources).

26 See, e.g., Penfold Communications, Inc., Memorandum 
Opinion and Order, 13 FCC Rcd 23731 (Mass Media Bur. 
1998)(references adverting to general usefulness, 
convenience or advantages of products or services are 
promotional); Letter of the Chief, Complaints and Political 
Programming Branch, Enforcement Division, to Evansville-
Vanderburgh School Corporation (WPSR(FM)) (Mass Media Bur. 
March 23, 1999).
 
27 See Licensee Responsibility to Exercise Adequate Control 
Over Foreign Language Programs, Public Notice, 39 FCC 2d 
1037 (1973).

28 See 47 U.S.C. § 503(b); 47 C.F.R § 1.80.

29 The Commission's Forfeiture Policy Statement and 
Amendment of Section 1.80 of the Rules to Incorporate the 
Forfeiture Guidelines, 12 FCC Rcd 17087, 17115 (1997) 
(``Forfeiture Policy Statement''), recon. denied 15 FCC Rcd 
303 (1999); 47 C.F.R. § 1.80(b).

30   47 U.S.C. § 503(b)(2)(D).  See also Forfeiture Policy 
Statement, 12 FCC Rcd at 17100 ¶ 27.

31 See, e.g., Christian Voice of Central Ohio, 
Inc.(WCVZ(FM)), 19 FCC Rcd 23663 (Enf. Bur. 2004) ($20,000 
forfeiture proposed for underwriting violations), response 
pending; Minority Television Project, Inc. (KMTP-TV), 
Forfeiture Order, 18 FCC Rcd 26611 (Enf. Bur. 2003), 
application  for review denied, Order on Review, FCC 04-293, 
19 FCC Rcd ___ (December 23, 2004) ($10,000 forfeiture for 
underwriting violations), recon. pending.
 
32 See 47 C.F.R. § 1.1914.