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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of )
)
UNIVISION RADIO LICENSE ) File No. EB-03-IH-0037
CORPORATION ) NAL Account No.
) 200532080008
) FRN No. 0004946141
Licensee of Stations )
KVVF(FM), Santa Clara, )
California1 ) Facility ID No. 19532
KZOL(FM), North Fork, ) Facility ID No. 31716
California ) Facility ID No. 59422
KHOT-FM, Paradise Valley, ) Facility ID No. 29021
Arizona ) Facility ID No. 65310
KHOV-FM, Wickenburg, Arizona )
KLNT(FM), Houston, Texas )
) NAL Account No. 20053208000
) FRN No. 0004945911
TICHENOR LICENSE CORPORATION )
)
) Facility ID No. 6662
Licensee of Stations ) Facility ID No. 67071
KGBT-FM, McAllen, Texas
KROM(FM), San Antonio, Texas
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 11, 2005 Released: January
12, 2005
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture, issued pursuant to section 503(b) of the
Communications Act of 1934, as amended (the ``Act''), and
section 1.80 of the Commission's rules,2 we find that
Univision Radio License Corporation (``Univision Radio
License) and Tichenor License Corporation (``Tichenor
License''), licensees of the above-captioned stations,
apparently violated section 73.1206 of the Commission's
rules, 47 C.F.R. § 73.1206, by broadcasting a telephone
conversation without first informing the party to the
conversation of its intention to do so.3 Based on our
review of the facts and circumstances, we find Univision
Radio License and Tichenor License apparently liable for an
aggregate monetary forfeiture in the amount of $28,000.00.
II. BACKGROUND
2. The complainant alleges that on October 18, 2002,
several stations broadcast a telephone
conversation between Raul Brindis, host of the
``Raul Brindis and Pepito Show,'' and the
complainant, without notifying the complainant of
their intention to do so.4 The telephone
conversation was apparently an on-air joke
performed on the complainant. The complainant
worked as an Account Executive at Hispanic
Broadcasting Corporation (``HBC''), the parent
corporation of the above-captioned licensees at
the time of the incident. According to a
transcript attached to the complaint, in an
attempt to play a joke, Mr. Brindis called the
complainant's cell phone and pretended to be
another man who had met the complainant at a local
club. After flirtatious conversation, Mr. Brindis
revealed the joke to the complainant on the air.
3. The Enforcement Bureau issued letters of inquiry
(``LOI'') along with a recording of the broadcast
supplied by the complainant.5 Counsel for
Univision Communications, Inc. (``Univision''),
the new ultimate corporate parent of the
licensees, filed a consolidated response,
acknowledging that the licensees of the above-
captioned stations aired the conversation at
issue.6 Univision argues, however, that the
complainant was an employee of HBC and, therefore,
the licensees were under no obligation to notify
him that the conversation would be broadcast. 7
Univision further contends that it should not be
held responsible for the acts of the licensees
since it was not the ultimate parent at the time
of the broadcast.8 Finally, Univision states that
the incident was a single, isolated event; that
such programming does not meet its programming
standards; and that, as a result of this incident,
it has put into place a compliance plan at its
licensee subsidiaries.9
III. DISCUSSION
4. Section 73.1206 of the Commission's rules provides
that, before recording a telephone conversation
for broadcast, or broadcasting such a conversation
simultaneously with its occurrence, a licensee
shall inform any party to the call of its
intention to broadcast the conversation, except
where such party is aware, or may be presumed to
be aware from the circumstances of the
conversation, that it is being or likely will be
broadcast. Univision admits that the above-
captioned stations broadcast the telephone
conversation between Raul Brindis and the
complainant on October 18, 2002, and that it did
not inform the complainant of its intent to do so
until broadcasting had already begun.
5. We find unpersuasive Univision's argument that the
complainant's position as an Account Executive at
HBC relieved the stations of their responsibility
to inform the complainant of their intent to
broadcast the conversation. Univision argues that
``[u]nder section 73.1206 of the Commission's
rules, prior consent to broadcast a conversation
is presumed where `the party to the call is
associated with the station (such as an employee
or part-time reporter)....'''10 Thus, under
Univision's reasoning, by agreeing to work at HBC
the complainant - as well as each and every
employee at the company from the CEO to the
cleaning crew - implicitly consented to having
conversations aired without prior notice. We do
not think the presumption language in section
73.1206 is that broad. The language of the rule
focuses on persons ``associated with the station
(such as employees or part-time reporters)''11,
not on all employees of the licensee and its
affiliates and the parent company. Moreover, in
adopting the presumption, the Commission focused
on ``conversations between employees at the
station and station reporters.''12 Thus, contrary
to Univision's suggestion, the Commission did not
intend to apply the presumption against required
prior notice to every employee of a broadcast
licensee or its affiliates, but only to those who
participate in ``open mike'' shows, phone in news
stories, or perform similar duties.13 The
Commission referred to these scenarios as
situations in which ``the parties do not presume
the conversation to be private and `consent by
implication' to the broadcast then or later.''14
We further conclude that the complainant could not
reasonably have been aware that this telephone
conversation would be broadcast. The show's host
lied about his identity, called the complainant's
private cell phone, and discussed topics of a
highly personal nature that one would not expect
to be broadcast. Therefore, we believe that it is
clear that the presumption in section 73.1206 was
not intended to apply in this circumstance.
6. We reject Univision's argument that an intervening
transfer of control precludes a finding of
apparent liability.15 As the Commission has
stated previously ``[t]he transfer of control of
stock of the licensee corporation subsequent to
violations does not excuse the licensee for the
violation.''16 Moreover, as the Commission has
noted when presented with similar issues in the
past, section 503(b) of the Act authorizes the
Commission to impose forfeitures upon any person
who willfully violates the Act or our rules.17
That section also requires us to take into
account, with respect to the violator, its degree
of culpability, history of prior offenses, ability
to pay, and such other matters as justice may
require. 47 U.S.C. §503(b)(2)(D). Based on the
facts before us, it appears that the licensee may
have willfully violated section 73.1206 and that
forfeiture is warranted. The fact that the
ownership of the licensee's parent company changed
hands does not affect the licensee's liability.
Finally, although Univision's compliance plan is a
helpful first step in preventing any future
violations of section 73.1206, it does not absolve
the licensees' of their liability for the
violations here.18
7. Having determined that Univision Radio License and
Tichenor License apparently willfully and/or
repeatedly violated section 73.1206 of the
Commission's rules, we turn to an analysis of
whether, and to what extent, we should propose
sanctions in this instance. The Commission's
forfeiture guidelines establish a base forfeiture
amount of $4,000.00 for the unauthorized broadcast
of a telephone conversation,19 and provide that
base forfeitures may be adjusted based upon
consideration of the factors enumerated in section
503(b)(2)(D) of the Act,20 and section 1.80(a)(4)
of the Commission's rules,21 which include ``the
nature, circumstances, extent, and gravity of the
violation . . . and the degree of culpability, any
history of prior offenses, ability to pay, and
such other matters as justice may require.''22
Based upon the facts and circumstances presented
here, including the fact that the single violation
of section 73.1206 was aired simultaneously at
seven stations, we find the base forfeiture amount
of $4000.00 per station for a collective
forfeiture amount of $28,000.00 to be appropriate.
II. ORDERING CLAUSES
8. ACCORDINGLY, IT IS ORDERED THAT, pursuant to
section 503(b) of the Communications Act of 1934, as
amended, Univision Radio License Corporation and Tichenor
License Corporation, are hereby NOTIFIED of their APPARENT
LIABILITY FOR A FORFEITURE of $28,000.00, or $4,000.00 per
station for apparently willfully violating section 73.1206
of the Commission's rules on October 18, 2002 at the above
captioned seven FM broadcast stations.
9. IT IS FURTHER ORDERED THAT, pursuant to section
1.80 of the rules, Univision Radio License Corporation and
Tichenor License Corporation SHALL PAY the full amount of
the proposed forfeiture within thirty (30) days of the
release of this Notice, or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
10. 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.
11. 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.
12. 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.
13. 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. 20554.23
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail -
Return Receipt Requested to Lawrence N. Cohn, Esq., 1920 N
Street, N.W. Washington, DC 20036-1622, and R. Michael
Lieberman, Esq., 1398 Post Street, San Francisco, CA. 94109.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 On September 13, 2004 the Commission granted Univision
Radio License Corporation's request to change the call sign
of Station KEMR(FM) to KVVF(FM).
2 47 U.S.C. § 503; 47 C.F.R. § 1.80.
3 47 C.F.R. § 73.1206.
4 See Letter from R. Michael Lieberman, Esq., to the
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, dated January 30, 2003.
5 See Letter from Maureen F. Del Duca, Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal
Communications Commission to HBC Media, Inc., dated November
25, 2003.
6 See Letter from Lawrence N. Cohn, Esq., to Maureen F. Del
Duca, Chief, Investigations and Hearing Division,
Enforcement Bureau, Federal Communications Commission, dated
January 14, 2004 (``LOI Response'').
7 LOI Response at 6.
8 Id. at 2.
9 Id. at 3.
10 LOI Response at 6.
11 47 C.F.R. § 73.1206.
12 Amendment to Part 73 of the Commission's Rules and
Regulations with Respect to the Broadcast of Telephone
Conversation, Report and Order, 23 FCC 2d 1 (1970).
13 Id.at ¶¶ 4, 5.
14 Id.at ¶ 4.
15 In letters dated March 8, 2004, HBC License Corporation
and HBC Houston License Corporation notified the Commission
of a name change. Pursuant to an amendment to the Articles
of Incorporation, HBC License Corporation and HBC Houston
License Corporation changed their legal names to Univision
Radio License Corporation. We have listed in the caption
the official name of the licensee of the five stations, but
our analysis is otherwise unaffected.
16 EZ Sacramento, Inc., Forfeiture Order, 14 FCC Rcd 13539,
13540 (Mass Media Bur. 1999), recon. denied 15 FCC Rcd 18
257 (Enf. Bur. 2000), app. for rev. denied, 16 FCC Rcd 4958
(2001) (quoting Winslow Communications, Inc., 45 FCC 2d 662,
663 (1974)).
17 EZ Sacramento, 16 FCC Rcd at 4959. See also 47 U.S.C.
503(b)(1).
18 See, e.g., AT&T Wireless Services, Inc., Forfeiture
Order, 17 FCC Rcd 21866, 21870-71 ¶ 26 (2002) (finding that
remedial action to correct the section 17.50 violation are
not a mitigating factor and noting that all licensees and
Commission regulates are expected to promptly take
corrective action when violations are brought to their
attention); Coleman Enterprises, Inc., Forfeiture Order, 15
FCC Rcd 24385, 24388 ¶ 8 (2000), recon. denied, 16 FCC Rcd
10016 (2001) (finding that a compliance plan is not a basis
to mitigate the amount of the forfeiture for numerous
slamming violations where the NAL had required that the
licensee submit a compliance plan because of the extent of
its misrepresentations to customers); Cumulus Licensing
Corp., Notice of Apparent Liability, 19 FCC Rcd 2753, 2755-
56, ¶ 6 (Enf. Bur. 2004) (finding that subsequent reminders
to on-air staff of their obligations under section 73.1206
did not alter fact that a violation had occurred or justify
mitigation and imposing base forfeiture for a single
violation of that rule).
19 47 C.F.R. §1.80(b)(4). See also Commission's Forfeiture
Policy Statement and Amendment of section 1.80 of the Rules
to Incorporate the Forfeiture Guidelines, Memorandum Opinion
and Order, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Forfeiture Policy Statement'').
20 47 U.S.C. §503(b)(2)(D).
21 47 C.F.R. §1.80(a)(4).
22 47 C.F.R. §1.80(b)(4) note. See also Forfeiture Policy
Statement, 12 FCC Rcd at 17100-01.
23 47 C.F.R. § 1.1914.