Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


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

In the Matter of                  )
Caguas Educational TV, Inc.       )   EB-04-IH-0382
                                 )   Facility ID No. 27292
Licensee of Noncommercial         )   NAL/Account No. 200532080130
Educational Station WLAZ(FM),     )   FRN  0008628646
Kissimmee, Florida


Adopted: March 17, 2005                              
Released: March 17, 2005  

By the Chief, Enforcement Bureau:


     1.   In this Notice of Apparent Liability for 
Forfeiture (``NAL''), we find that Caguas Educational TV, 
Inc. (``Caguas''), licensee of noncommercial educational 
Station WLAZ(FM), Kissimmee, Florida, has apparently 
violated section 399B of the Communications Act of 1934, as 
amended (the ``Act''),1 and section 73.503 of the 
Commission's rules,2 by willfully and repeatedly 
broadcasting prohibited advertisements.  Based upon our 
review of the facts and circumstances of this case, we 
conclude that Caguas is apparently liable for a monetary 
forfeiture in the amount of $10,000.


     2.   This case arises from a complaint made to the 
Commission in July 2004 (``Complaint''), alleging that 
noncommercial educational Station WLAZ(FM) broadcast 
prohibited underwriting announcements during the month of 
May 2004.  Thereafter, the Bureau inquired of the licensee 
concerning the allegations contained in the complaint.3  
Caguas responded to the LOI on November 22, 2004.4  


     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 
Caguas 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.   Caguas 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 Caguas admits that Station WLAZ(FM) repeatedly 
broadcast from April 1 through September 30, 2004.13  Caguas 
acknowledges that it received consideration for airing the 
messages on behalf of the station's underwriters, Sol De 
Borinquen Bakery and Wanda's Quality, that both are for-
profit entities, and that the two messages were repeated a 
total of 404 and 1267 times, respectively, during this 
period.14  Although Caguas claims that it was under no 
``obligation'' to broadcast underwriting announcements on 
behalf of ``Wanda's Quality,'' the licensee represents that 
it did so as a ``courtesy'' to recognize the donor for 
providing the station with giveaway items that it, in turn, 
used for self-promotion.15    

     6.   The announcements were broadcast in Spanish, and 
Caguas notes that its own translation of the Sol de 
Borinquen Bakery announcement is slightly different from 
that which the Bureau included with its LOI.16  Having 
reviewed Caguas's version, we do not believe that it 
substantially alters the overall context or meaning of the 
underwriting message.  However, we accept Caguas's alternate 
text insofar as it represents the purported basis by which 
it claims to have attempted to exercise its ``good faith'' 
discretion under Xavier, supra.  Thus, we have revised our 
attached transcripts to reflect Caguas's translation of the 
Sol de Borinquen Bakery announcement.

     7.   After careful review of the record in this case, 
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.  The announcement for Wanda's Quality states 
that the company has ``the biggest variety of undershirts, 
polos, short and long sleeve oxford shirts,'' and that they 
are ``[t]he people that know most about embroidery and 
printing.''17  The announcement for Sol de Borinquen Bakery 
asserts that it is ``the greatest bakery in Kissimmee;'' and 
that it offers its ``famous frappe.''18  We conclude that a 
noncommercial licensee, exercising ``good faith,'' could 
only conclude that the above statements make qualitative and 
comparative references to Wanda's Quality and to Sol de 
Borinquen Bakery, and that, in particular, the words and/or 
phrases ``biggest,'' ``people that know most,'' and 
``greatest,'' impermissibly seek to distinguish the 
underwriters' products and/or service favorably from that of 
their competitors.  The announcements are thus promotional 
and prohibited.19
     8.   We further find that the announcements in question 
were broadcast in exchange for consideration.  First, Caguas 
acknowledges that it aired the announcements for Sol de 
Borinquen Bakery on the basis of one announcement for each 
$10 contributed.20  With respect to the arrangement between 
Wanda's Quality and Caguas, ``consideration,'' for purposes 
of section 399B of the Act, may take forms other than direct 
cash payments.21  Caguas admits that it aired the 
announcements to acknowledge that underwriter's donation of 
t-shirts bearing the station's logo, although it was not 
obligated to do so.  In determining whether the 
announcements constituted prohibited advertisements under 
section 399B of the Act, it is sufficient to find that 
consideration was exchanged for their broadcast, and that 
the announcements promoted the services or products of for-
profit entities.22  It is not necessary to find that the 
licensee was contractually obligated to pay the 
consideration.  Finally, 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.23  To the extent that 
Caguas has overlooked its duties in this regard, we remind 
it to take appropriate care in the future to avoid further 
violations of this type.     

     B.  Proposed Action

     9.   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.24  The Commission's Forfeiture 
Policy Statement sets a base forfeiture amount of $2,000 for 
violation of the enhanced underwriting requirements.25  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.''26  

     10.  In this case, it appears that, from April 1 
through September 30, 2004, Caguas 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 substantial period of time during which it aired the 
prohibited announcements, six months, and the 1,671 times 
that it repeated the announcements during that period.  
Nevertheless, we believe if we simply multiplied the $2,000 
base amount by the 1,671 apparent violations, the potential 
liability would be excessive in this case.  Based on all of 
the circumstances, and after examining forfeiture actions in 
other recent underwriting cases, we believe that a proposed 
forfeiture of $10,000 is appropriate here.27  

     11.  Accordingly, applying the Forfeiture Policy 
Statement and the statutory factors to this case, we 
conclude that Caguas 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.


     12.    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, Caguas Educational TV, Inc., licensee of 
noncommercial educational Station WLAZ(FM), Kissimmee, 
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.
     13.  IT IS FURTHER ORDERED, pursuant to section 1.80 of 
the Commission's rules, that within thirty days of the 
release of this Notice, Caguas SHALL PAY the full amount of 
the proposed forfeiture or SHALL FILE a written statement 
seeking reduction or cancellation of the proposed 

     14.  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, Illinois 60601.  
Payment by wire transfer may be made to ABA Number 
071000013, receiving bank Bank One, and account number 

     15.  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 D.C. 20554 and 
MUST INCLUDE the NAL/Acct. No. referenced above.

     16.  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 

     17.  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. 20554.28

     18.  IT IS FURTHER ORDERED that a copy of this Notice 
shall be sent, by Certified Mail/Return Receipt Requested, 
to Caguas Educational TV, Inc., P.O. Box 3986, Carolina, 
Puerto Rico 00984-3986, and to its counsel, Francisco R. 
Montero, Esq., and Alison J. Miller, Esq., Fletcher, Heald & 
Hildreth, P.L.C., 11th Floor, 1300 North 17th Street, 
Arlington, Virginia 22209-3801. 


                         David H. Solomon
                         Chief, Enforcement Bureau


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

Wanda's Quality

Attention, churches, schools and businesses!  Already, in 
Orlando embroidery and printing, Wanda's Quality!  With the 
biggest variety of undershirts, polos, short and long sleeve 
oxford shirts, in all sizes for boys, ladies and gentlemen.  
Likewise, caps and promotional articles.  Wanda's Quality!  
Telephone 407-301-5854, 407-301-5854.  Wanda's Quality!  The 
people that know the most about embroidery and printing.  
Wanda's Quality.  Sponsored by Genesis.

Sol de Borinquen Bakery

Sol de Borinquen has opened its doors, the greatest bakery 
in Kissimmee.  Sol de Borinquen Restaurant, 2510 Michigan 
Avenue.  Breakfast, lunch, authentic Caribbean food, the 
famous frappe, hot bread (sobao and water).  Wedding and 
birthday cakes, Caribbean style, cheese custard, brazo 
Gitano and many other authentic Caribbean foods.  Sol de 
Borinquen Restaurant, 2510 Michigan Avenue, telephone 407-
518-7755.  Open from 6:00 a.m.  Sol de Borinquen, an 
authentic Caribbean bakery. 

1 47 U.S.C.  399b.

2 47 C.F.R.  73.503.

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

4 Letter from Francisco R. Montero, Esq., and Alison J. 
Miller, Esq., to Kenneth M. Scheibel, Jr., Attorney, 
Investigations and Hearings Division, Enforcement Bureau, 
dated November 22, 2004 (``Response'').

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, Letter of Admonition, issued 
November 14, 1989 (Mass Med. Bur.), recon. granted, 
Memorandum Opinion and Order, 5 FCC Rcd 4920 (1990).

13 Response at Exhibit A.

14 Id. at 3, 4.

15 Id.  at 4.  Caguas indicates that Wanda's Quality ``from 
time to time'' provided the station with t-shirts which bore 
the station's logo.  Id.

16 Id.  at 2.  Caguas does not dispute the translation of 
the Wanda's Quality announcement also contained in the LOI.  
17 See Attachment.

18 Id.

19 See Public Notice, supra.

20  Response at 4 

21 See Commission Policy Concerning the Noncommercial Nature 
of Educational Broadcast Stations, 90 FCC 2d 895, 911 
(1982), recon., 97  FCC 2d 255 (1984) (``Policy 
22 Moreover, in similar cases, the Commission has rejected 
arguments that such payments constituted general station 
contributions unrelated to the broadcast of underwriting 
announcements made on behalf of the donors involved.  See 
Penfold Communications, Inc., Memorandum Opinion and Order, 
13 FCC Rcd 23731 (Mass Media Bur. 1998). 

23 See Licensee Responsibility to Exercise Adequate Control 
Over Foreign Language Programs, Public Notice, 39 FCC 2d 
1037 (1973).

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

25 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).

26   47 U.S.C.  503(b)(2)(D).  See also Forfeiture Policy 
Statement, 12 FCC Rcd at 17100  27.

27 See, e.g., Hispanic Broadcast System, Inc.(WQQZ(FM)), 
Notice of Apparent Liability for Forfeiture, DA 05-349,__FCC 
Rcd__ (rel. Feb. 9, 2005) ($10,000 forfeiture proposed for 
underwriting violations), response pending; Minority 
Television Project, Inc. (KMTP-TV), Notice of Apparent 
Liability for Forfeiture, DA 05-348,__FCC Rcd__ (rel. Feb. 
9, 2005) ($7,500 forfeiture proposed for underwriting 
violations), response pending; 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, 19 FCC Rcd 
25116 (2004) ($10,000 forfeiture for underwriting 
violations), recon. pending.
28 See 47 C.F.R.  1.1914.