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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-
02-SD-144
) NAL/Acct. No.
200232940008
Aracelis Ortiz, Executrix )
FRN 0003-7552-87
For the Estate of Carlos Ortiz )
Harlingen, Texas )
MEMORANDUM OPINION AND ORDER
Adopted: January 11, 2005 Released: January 13,
2005
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
deny the petition for reconsideration filed by
Aracelis Ortiz, Executrix for the Estate of Carlos
Ortiz (``Aracelis Ortiz'') licensee of Class A
Television Broadcast Station KCOS-LP, Phoenix,
Arizona. Aracelis Ortiz seeks reconsideration of the
Forfeiture Order1 in which the Chief, Enforcement
Bureau (``Bureau''), found her liable for a monetary
forfeiture in the amount of $12,000 for willful
violation of Sections 73.1125(c) and 11.35(a) of the
Commission's Rules (``Rules'').2 The noted violations
involve Aracelis Ortiz's failure to ensure that
required Emergency Alert System (``EAS'') equipment
was operational at Station KCOS-LP and Mrs. Ortiz's
failure to have a main studio at a location within
KCOS-LP's predicted Grade B contour on June 25, 2002.3
II. BACKGROUND
2. After conducting an investigation and determining that
Aracelis Ortiz did not have EAS equipment installed at Station
KCOS-LP and that Station KCOS-LP did not have a main studio
located within its predicted Grade B contour, on September 30,
2002, the Commission's San Diego, California Office (``San Diego
Office'') issued a Notice of Apparent Liability for Forfeiture
(``NAL'') to Aracelis Ortiz in the amount of fifteen thousand
dollars ($15,000) for the apparent violations.4 On November 18,
2002, Aracelis Ortiz filed a response to the NAL. On February
23, 2004, the Chief of the Commission's Enforcement Bureau (``the
Bureau'') issued a Forfeiture Order upholding the NAL but
reducing the forfeiture amount from $15,000 to $12,000 because of
Mrs. Ortiz's good faith efforts to comply with the main studio
and EAS rules. On March 24, 2004, Aracelis Ortiz, by her
attorney, filed a petition for reconsideration (``petition'') of
the Forfeiture Order. In the petition, Mrs. Ortiz does not
contest the violations; however, she seeks reconsideration of the
Forfeiture Order on the basis of financial hardship.
III. DISCUSSION
3. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934 as amended (``Act''), 5 Section 1.80 of the Rules,6 and
The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.7 In examining Mrs. Ortiz's petition, Section
503(b) of the Act requires that the Commission take into
account 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.8
4. In support of her request for reconsideration, Mrs.
Ortiz includes an affidavit9 in which she states that
Station KCOS-LP is a continuation of a non-profit television
ministry founded by her late husband, Pastor Carlos Ortiz.
Mrs. Ortiz also asserts that, at the time of the events
leading to the Forfeiture Order, KCOS-LP was broadcasting
non-commercial religious programming from La Familia
Television Network, Inc. (``La Familia''). Mrs. Ortiz
further states that she neither had a contractual
relationship with nor received any form of compensation from
La Familia for broadcasting its programming over the
facilities of KCOS-LP. Although Mrs. Ortiz claims that
payment of the forfeiture amount would jeopardize the
ability of Station KCOS to operate in the public interest,
she has not submitted her personal financial statements
and/or tax returns because she believes the documents would
not provide useful information concerning KCOS's financial
condition as they do not reflect any income from the
station's operation.
5. The Commission has determined that, in general, a
licensee's gross revenues are the best indicator of its ability
to pay a forfeiture.10 As it appears that Mrs. Ortiz, the
individual, is the licensee of Station KCOS, and not a separately
incorporated entity, it is Mrs. Ortiz's gross revenues that are
relevant to our inquiry. The Commission has also concluded that
it is appropriate to take into account ``income derived from
other affiliated operations, as well as the financial status of
the station(s) in question.''11 As the Common Carrier Bureau
stated in Hinton Telephone Company of Hinton, Oklahoma:
reviewing the data for consolidated operations rather
than financial data limited to just [one station]
accurately portrays whether a licensee can pay a
proposed forfeiture. Our determination of a licensee's
ability to pay should reflect whether the licensee in
general is financially capable of paying a forfeiture,
not whether financial data from a limited portion of
its operations can sustain a forfeiture.
7 FCC Rcd 6643, 6644 (CCB 1992), review denied, 8 FCC Rcd
5176 (1993). Thus, it is the Commission's general policy to
consider the financial condition of a licensee's consolidated
operations, not just the financial condition of an individual
station or a limited portion of its operations. As it is a
matter of record that there are ``a number of low power
television stations that were licensed to [the late Pastor Ortiz]
and his wife, to their church, and to Ortiz Broadcasting
Corp.,''12 and consistent with Commission policy, the financial
condition of all of the affiliated entities is relevant to the
issue of whether Aracelis Ortiz, licensee of Station KCOS, can
pay the forfeiture amount. Because Mrs. Ortiz has not provided
any information concerning her revenues or the revenues of the
several entities affiliated with Aracelis Ortiz, the licensee, we
have no justification for reducing the forfeiture based upon her
claim of financial hardship. Further, even though Aracelis Ortiz
states that imposition of this forfeiture would jeopardize the
ability of Station KCOS to operate in the public interest, we
have held that, consistent with our holding in PJB
Communications, we will not find that a forfeiture will threaten
a licensee's ability to serve the public unless a comparison of
the forfeiture amount with the licensee's gross receipts shows
that such a threat exists.13 In this case, we can not make such
a comparison because Aracelis Ortiz has not provided us with her
financial documentation.
V. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act14 and Section 1.106 of the Rules,15 Aracelis
Ortiz's petition for reconsideration of the February 23, 2004
Forfeiture Order IS DENIED.
7.Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.16
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 Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.17
8. IT IS FURTHER ORDERED THAT this Order shall be
sent by regular mail and by certified mail, return receipt
requested, to J. Geoffrey Bentley, Esq., P.O. Box 71027, Herndon,
Virginia, 20171.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 19 FCC Rcd 2632 (Enf. Bur. 2004).
2 47 C.F.R. §§ 73.1125(c) and 11.35(a).
3 Mrs. Ortiz has indicated that she has remedied both the EAS
violation and the main studio violation.
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232940008 (Enf. Bur., San Diego, September 30, 2002).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303
(1999).
8 47 U.S.C. § 503(b)(2)(D).
9 We note that, although counsel for Aracelis Ortiz stated that
the original, signed affidavit would be submitted to the Bureau
when he received it, the Bureau has not received an affidavit
with an original signature.
10 PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
(1992).
11 Emery Telephone, 13 FCC Rcd 23854, 23859-60 (1998) (emphasis
added), recon. denied, 15 FCC Rcd 7181 (1999).
12 Response to NAL at page 2.
13 KASA Radio Hogar, 17 FCC Rcd 6256, 6259 (2002); Emery
Telephone at 7185.
14 47 U.S.C. § 405.
15 47 C.F.R. § 1.106.
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.