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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                            )                                
                                                                             
                                            )                                
     In the Matter of                           File Number: EB-06-IH-2171   
                                            )                                
     Spanish Broadcasting System Holding        Facility ID No.: 74552       
     Company, Inc.                          )                                
                                                NAL/Acct. No.: 201132080022  
     Licensee of Station WZNT(FM), San      )                                
     Juan, Puerto Rico                          FRN #: 0019998392            
                                            )                                
                                                                             
                                            )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: February 16, 2011 Released: February 16, 2011

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we assess
       a monetary forfeiture in the amount of $25,000 against Spanish
       Broadcasting System Holding Company, Inc. ("SBSHCI" or "Licensee"),
       licensee of Station WZNT(FM), San Juan, Puerto Rico ("WZNT" or "the
       Station"), for its apparent willful and repeated violation of Section
       73.1206 of the Commission's Rules. As discussed below, we find that
       SBSHCI apparently violated the telephone broadcast rule by
       broadcasting telephone conversations without giving prior notice to
       the individuals being called that the conversations would be aired.

   II. BACKGROUND

    2. The Enforcement Bureau ("Bureau") received a complaint ("Complaint")
       alleging that on April 13, 2006, Station WZNT employees made two
       "prank" calls during a comedy segment called "You Fell For It," which
       is hosted by a radio personality called Moonshadow. According to the
       Complaint, in the first call, the caller pretended to be an intruder
       hiding under the bed, and the call recipient, upon learning that the
       call was meant to be a joke, became upset. In the second call,
       Moonshadow pretended to be a loan shark, attempting to collect on a
       debt.

    3. The Bureau issued a letter of inquiry ("LOI") to the Licensee on
       October 28, 2010 regarding the issues raised in the Complaint. In
       response, SBSHCI stated that it does not retain recordings or
       transcripts of its programming and that it "cannot confirm or deny"
       that the segments aired on the Station. The Licensee did acknowledge,
       however, that in 2006 it regularly aired a program called "El
       Vacilon de la Manana," which contained the segment, "You Fell for It,"
       where listeners called in and requested telephone calls be made to
       family members or friends. The Licensee noted that the show was hosted
       by Luis Jimenez and Raymond Broussard - the latter known as
       "Moonshadow," and that the programming was simulcast on its co-owned
       Stations WZMT(FM) and WZET(FM).

   III. DISCUSSION

    4. 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. 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. 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, and the
       Commission has so interpreted the term in the Section 503(b) context.
       The Commission may also assess a forfeiture for violations that are
       merely repeated, and not willful.  "Repeated" means that the act was
       committed or omitted more than once, or lasts more than one day. 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. 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. As described in
       greater detail below, we conclude under this procedure that the
       Licensee is apparently liable for a forfeiture in the amount of
       $25,000 for its apparent willful and repeated violation of Section
       73.1206.

    5. Section 73.1206 of the Commission's Rules requires that, before
       broadcasting or recording a telephone conversation for later
       broadcast, a licensee must 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. The
       Commission will presume such awareness only where "the other party to
       the call is associated with the station (such as an employee or
       part-time reporter), or where the other party originates the call and
       it is obvious that it is in connection with a program in which the
       station customarily broadcasts telephone conversations."

    6. Section 73.1206 reflects the Commission's longstanding policy that
       prior notification is essential to protect individuals' legitimate
       expectation of privacy and to preserve their dignity by avoiding
       nonconsensual broadcasts of their conversations. In 1988, when
       assessing whether the rule should be modified, the Commission
       specifically favored an individual's privacy interest over the
       interests that broadcasters might have in enhancing program appeal by
       using telephone conversations to increase spontaneity and
       entertainment value. The Commission found that the potential increase
       in programming appeal was not "sufficiently critical as to justify
       intruding on individual privacy" and declined to alter the prior
       notice provisions of the rule.

    7. In this case, we find that SBSHCI violated Section 73.1206 by airing
       the two conversations described in the Complaint, without providing
       the required notice to the call recipients. Although the Licensee
       claims that it cannot definitively determine whether the conversations
       were broadcast, it does not dispute the allegations contained in the
       Complaint. In addition, SBSHCI confirms several facts identified in
       the Complaint, including that the program was regularly broadcast over
       the Station, that the host of the show is known as Moonshadow, and
       that the premise of the "You Fell for It" segment was that listeners
       requested telephone calls be made to family members or friends. We
       also note that the telephone conversations and program segment at
       issue here are similar to those identified in previous violations by
       other stations owned by the Licensee's parent company. Further, it
       appears that the intent of the "You Fell for It" segment was to trick
       or deceive the called party as to the true identity of the caller, so
       it was designed to conceal the caller's identity and the fact that the
       conversation was being, or would be, broadcast. These facts, along
       with the Complainant's reasonably detailed description of what took
       place, support the allegations contained in the Complaint, which in
       the absence of countervailing evidence, we consider to be credible. As
       the Commission has previously held, a licensee may not avoid liability
       by disavowing knowledge of what was broadcast over its station.
       Finally, the rule's exception does not appear to apply because there
       is no record evidence that the called parties had knowledge of the
       Station's intent to record the call for broadcast. For the foregoing
       reasons, we find that a preponderance of the evidence establishes that
       Station WZNT broadcast the subject conversations, without providing
       the required notice, in apparent violation of Section 73.1206.

    8. The Commission's forfeiture guidelines establish a base forfeiture
       amount of $4,000 for the unauthorized broadcast of a telephone
       conversation. In addition, the Commission's rules provide that base
       forfeitures may be adjusted based upon consideration of the factors
       enumerated in Section 503(b)(2)(E) of the Act and Section 1.80(a)(4)
       of the Commission's rules, 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." We note that Spanish
       Broadcasting System, Inc., the parent company of the Licensee, has a
       history of violating the Commission's rules, including the telephone
       broadcast rule at issue here. We also note that the Licensee broadcast
       the conversations on at least two additional stations, as Station
       WZNT's programming is simulcast over Stations WZMT(FM) and WZET(FM).
       Finally, we must also consider the Licensee's ability to pay so that
       forfeitures against "large or highly profitable entities are not
       considered merely an affordable cost of doing business." Accordingly,
       having considered the record in this case and the statutory factors
       identified above, we find that Spanish Broadcasting System Holding
       Company, Inc. is apparently liable for a forfeiture in the amount of
       $25,000. We again caution the Licensee that additional violations of
       these rules may result in the imposition of higher forfeitures and
       even harsher enforcement action, including license revocation
       proceedings.

   IV. ORDERING CLAUSES

    9. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.311,
       0.314, and 1.80 of the Commission's rules, that Spanish Broadcasting
       System Holding Company, Inc. is hereby NOTIFIED of its APPARENT
       LIABILITY FOR FORFEITURE in the amount of $25,000 for apparently
       willfully and repeatedly violating Section 73.1206 of the Commission's
       rules.

   10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
       rules, that within thirty (30) days of the release date of this NAL,
       Spanish Broadcasting System Holding Company, Inc., SHALL PAY the full
       amount of the proposed forfeiture or SHALL FILE a written statement
       seeking reduction or cancellation of the proposed forfeiture.

   11. 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/Account Number and FRN Number referenced
       above. Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
       Payment by overnight mail may be sent to U.S. Bank - Government
       Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
       63101. Payment by wire transfer may be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and account number 27000001. For payment by
       credit card, an FCC Form 159 (Remittance Advice) must be submitted.
        When completing the FCC Form 159, enter the NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to:  Chief Financial Officer --
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C.  20554.   Please contact the Financial Operations Group Help Desk
       at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
       regarding payment procedures. Spanish Broadcasting System Holding
       Company, Inc. will also send electronic notification on the date said
       payment is made to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
       Kenneth.Scheibel@fcc.gov, and Guy.Benson@fcc.gov.

   12. The written statement seeking reduction or cancellation of the
       proposed forfeiture, if any, must include a detailed factual statement
       supported by appropriate documentation and affidavits pursuant to
       Sections 1.80(f)(3) and 1.16 of the Rules. The written statement shall
       be mailed to Hillary S. DeNigro, 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/Account Number referenced above. To the extent
       practicable, any response should also be sent by e-mail to
       Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
       Kenneth.Scheibel@fcc.gov, and Guy.Benson@fcc.gov.

   13. 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.

   14. IT IS FURTHER ORDERED, that the Complaint filed IS GRANTED to the
       extent indicated herein and IS OTHERWISE DENIED, and the Complaint
       proceeding IS HEREBY TERMINATED.

   15. IT IS FURTHER ORDERED, that a copy of this NAL shall be sent, by
       Certified Mail/Return Receipt Requested, to Spanish Broadcasting
       System Holding Company, Inc. at its address of record and to its
       counsel, Dennis P. Corbett and Nancy A. Ory, Lerman Senter PLLC, 2000
       K Street, N.W., Suite 600, Washington, D.C. 20006.

   FEDERAL COMMUNICATIONS COMMISSION

   P. Michele Ellison

   Chief

   Enforcement Bureau

   See 47 C.F.R. S: 73.1206 (the "telephone broadcast rule").

   See Complaint to the Federal Communications Commission, dated April 14,
   2006 ("Complaint").

   See id.

   See id.

   See Letter from Kenneth M. Scheibel, Jr., Assistant Chief, Investigations
   and Hearings Division, Enforcement Bureau, Federal Communications
   Commission to WZNT, Inc., dated October 28, 2010. The license for Station
   WZNT was assigned from WZNT, Inc. to Spanish Broadcasting System Holding
   Company, Inc., on October 13, 2009 (FCC File No. BALH-20090923ABJ). Both
   companies' ultimate common corporate parent is Spanish Broadcasting
   System, Inc.

   See Letter from Dennis P. Corbett and Nancy A. Ory, counsel for Spanish
   Broadcasting System Holding Company, Inc. to Guy N. Benson, Attorney
   Advisor, Investigations and Hearings Division, Enforcement Bureau, dated
   December 2, 2010, at 2-3 ("LOI Response").

   See id.

   See id. at 2.

   See id. at 4. The Licensee also notes that the program originated at
   Station WSKQ-FM, New York, New York, a station owned by its parent
   company, Spanish Broadcasting System, Inc. See id. at 8.

   See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).

   47 U.S.C. S: 312(f)(1).

   See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

   See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
   Order, 6 FCC Rcd 4387, 4388 (1991).

   See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
   Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10
   (2001) (issuing a Notice of Apparent Liability for, inter alia, a cable
   television operator's repeated signal leakage).

   Southern California Broadcasting, 6 FCC Rcd at 4388 P: 5; Callais
   Cablevision, 16 FCC Rcd at 1362 P: 9.

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

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

   See 47 C.F.R. S: 73.1206.

   Id.

   See Amendment of Section 1206: Broadcast of Telephone Conversations,
   Report and Order, 3 FCC Rcd 5461, 5463-64 P:P: 19-21 (1988) ("1988 Report
   and Order"); Station-Initiated Telephone Calls Which Fail to Comply With
   Section 73.1206 of the Rules, Public Notice, 35 FCC 2d 940, 941 (1972);
   Amendment of Part 73 of the Commission's Rules and Regulations with
   Respect to the Broadcast of Telephone Conversations, Report and Order, 23
   FCC 2d 1, 2 (1970).

   See 1988 Report and Order, 3 FCC Rcd at 5464 P: 21.

   Id.

   See id. at 5463 P: 18.

   See Complaint, supra note 2; LOI Response at 2-3.

   See LOI Response at 5.

   Id. at 2-3.

   See WXDJ Licensing, Inc. and WSKQ Licensing, Inc., Notice of Apparent
   Liability for Forfeiture, 23 FCC Rcd 14933, 14938 P: 8 & n.33 (Enf. Bur.,
   Investigations & Hearings Div. 2008) (prank call, made at request of call
   recipient's sister, aired on station as part of a "You Fell for It"
   segment) ("WXDJ/WSKQ NAL") (WSKQ forfeiture paid; forfeiture order issued
   for WXDJ, WXDJ Licensing, Inc., Forfeiture Order,  25 FCC Rcd. 3911 (Enf.
   Bur., Investigations & Hearings Div. 2010), recons. pending).

   See Complaint, supra note 2.

   See, e.g., ProActive Communications, Inc., Notice of Apparent Liability
   for Forfeiture, 23 FCC Rcd 9079, 9082 P: 7 (Enf. Bur., Investigations &
   Hearings Div. 2008) (finding complainant's description of programming
   content, in a case concerning the telephone broadcast rule, to be credible
   when Licensee failed to offer any evidence to the contrary).

   See Community Broadcasters, Inc., Memorandum Opinion and Order, 55 FCC 2d
   28, 35 P:18 (1975), recon. denied, 56 FCC 2d 851 (1975). Accord ProActive
   Communications, supra note 28.

   See 47 C.F.R. S: 73.1206. Under the limited exception to the rule, notice
   is not required only when the parties to the call are aware, or are
   presumed to be aware from the circumstances of the conversation, that the
   call is being or likely will be broadcast. Such awareness is presumed to
   exist only when the other party to the call is associated with the station
   (such as an employee or part-time reporter), or where the other party
   originates the call and it is obvious that it is in connection with a
   program in which the station customarily broadcasts telephone
   conversations.

   See SBC Communications, Inc.,  17 FCC Rcd at 7591 P: 4.

   See The Commission's Forfeiture Policy Statement and Amendment of Section
   1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
   Order, 12 FCC Rcd 17087, 17115 (1997), recon. denied, 15 FCC Rcd 303
   (1999) ("Forfeiture Policy Statement"); 47 C.F.R. S:1.80.

   See 47 U.S.C. S: 503(b)(2)(E).

   47 C.F.R. S: 1.80(a)(4).

   See WSKQ Licensing, Inc., Notice of Apparent Liability for Forfeiture, 25
   FCC Rcd 1287, 1292 P: 11 (Enf. Bur., Investigations & Hearings Div. 2010)
   (proposing $16,000 forfeiture against the Licensee for violation of
   telephone broadcast rule), response received; WXDJ/WSKQ NAL, 23 FCC Rcd at
   14938 P: 9 (proposing separate $16,000 forfeitures against two
   Licensee-owned stations for violation of the telephone broadcast rule);
   WXDJ Licensing, Inc., Forfeiture Order, 19 FCC Rcd 22445, 22447-48 P: 8
   (Enf. Bur. 2004) (proposing $3,500 forfeiture against the Licensee for
   violating telephone broadcast rule) (forfeiture paid); WCMQ Licensing,
   Inc., Notice of Apparent Liability for Forfeiture, 15 FCC Rcd 8111, 8113
   P: 6 (Enf. Bur. 2000) (proposing $4,000 forfeiture against the Licensee
   for violating telephone broadcast rule) (forfeiture paid).

   See LOI Response at 4.

   Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 P: 24. Spanish
   Broadcasting System Holding Company, Inc.'s parent company, Spanish
   Broadcasting System, Inc., earns substantial income, reporting
   $139,389,000 in net revenue for 2009. See Spanish Broadcasting System,
   Inc., 2009 Annual Report on Form 10-K, Securities and Exchange Commission,
   at 61.

   See WSKQ Licensing, Inc., 25 FCC Rcd at 1292 P: 10.

   See 47 U.S.C. S: 503(b).

   See 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1206.

   See 47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
   73.1206.

   For purposes of this forfeiture proceeding initiated by this NAL, Spanish
   Broadcasting System Holding Company, Inc. shall be the only party to this
   proceeding.

   (Continued from previous page)

   (Footnote Continued...)

   Federal Communications Commission DA 11-292

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   Federal Communications Commission DA 11-292