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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-HU-0068
In the Matter of
) NAL/Acct. No.:
Vision Latina Broadcasting, Inc. 201232540005
)
Licensee of Station KBPO FRN: 0010019115
)
Port Neches, Texas Facility ID No.: 68762
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 14, 2012 Released: June 14, 2012
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
Vision Latina Broadcasting, Inc. (Vision Latina Broadcasting),
licensee of Station KBPO, Port Neches, Texas, apparently liable for a
forfeiture in the amount of twenty five thousand dollars ($25,000) for
willful violation of Section 1.17(a)(2) of the Commission's rules
(Rules). The noted violation involves Vision Latina Broadcasting's
provision of incorrect factual information of a material nature to the
Commission regarding Station KBPO's public inspection file without a
reasonable basis for believing that the information was correct and
accurate.
II. BACKGROUND
2. On December 9, 2010, during regular business hours, an agent from the
Enforcement Bureau's Houston Office (Houston Office) inspected Station
KBPO's public inspection file and found it did not contain a current
copy of the station authorization, service contour map, the most
recent ownership report, Public and Broadcasting manual, or any
issues-programs lists. The Enforcement Bureau issued a Notice of
Apparent Liability for Forfeiture and Order to Vision Latina
Broadcasting for its violations, among other things, of the
Commission's public inspection file rules. The 1st NAL also directed
Vision Latina Broadcasting to "submit a statement signed under penalty
of perjury by an officer or director of the licensee that ... Station
KBPO's public inspection file is complete." On August 25, 2011, Vision
Latina submitted a certification that "[i]n coordination with [an
independent consultant], all missing materials cited in the NAL have
been placed in the Station's Public Inspection File, and the
undersigned confirms that it is complete as of the date of this
response."
3. On October 13, 2011 agents from the Houston Office inspected the
public inspection file for Station KBPO located at its main studio.
The file made available by Station staff did not contain any
issues-programs listings. None of the Station employees present were
aware of Station KBPO having ever maintained any issues-programs
listings for the Station. In response to a Letter of Inquiry regarding
the October 13, 2011 inspection, Vision Latina Broadcasting stated
"the `Issue Programs Lists' folder was empty due to an oversight by
the licensee." Vision Latina Broadcasting stated that it believed the
public inspection file contained daily logs of the programming aired
by a party to a Time Brokerage Agreement. Moreover, "despite hiring an
outside consultant to review the public file, and receive [sic]
indications from the consultant that the public file was complete,
Vision was not aware that the logs it believed to be sufficient were
missing from the public file." Vision Latina Broadcasting attached to
its response newly created issues-programs listings for 2010 and 2011
and stated they have been placed in Station KBPO's public inspection
file.
III. DISCUSSION
4. Section 503(b) of the Communications Act of 1934, as amended (Act),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
A. Vision Latina Broadcasting Apparently Provided Incorrect Material
Factual Information to the Commission
5. Section 1.17 of the Rules states that no person may provide, in any
written statement of fact, "material factual information that is
incorrect or omit material information that is necessary to prevent
any material factual statement that is made from being incorrect or
misleading without a reasonable basis for believing that any such
material factual statement is correct and not misleading." Any holder
of any Commission authorization is subject to the Rule. In expanding
the scope of Section 1.17 of the Rules in 2003 to include written
statements that are made without a reasonable basis for believing the
statement is correct and not misleading, the Commission explained that
this requirement was intended to more clearly articulate the
obligations of persons dealing with the Commission, ensure that they
exercise due diligence in preparing written submissions, and enhance
the effectiveness of the Commission's enforcement efforts. Thus, even
in the absence of an intent to deceive, a false statement provided
without a reasonable basis for believing that the statement is correct
and not misleading constitutes an actionable violation of Section 1.17
of the Rules.
6. As the Commission has stated, parties must "use due diligence in
providing information that is correct and not misleading to the
Commission, including taking appropriate affirmative steps to
determine the truthfulness of what is being submitted. A failure to
exercise such reasonable diligence would mean that the party did not
have a reasonable basis for believing in the truthfulness of the
information." In Vision Latina Broadcasting's certification dated
August 25, 2011, it stated that "all missing materials cited in the
NAL have been placed in the Station's Public Inspection File, and the
undersigned confirms that it is complete as of the date of this
response." As noted above, however, Vision Latina Broadcasting admits
that, between August 25, 2011 and December 15, 2011, its public
inspection file contained only daily programming logs, rather than the
required issues-programs listings, and that on October 13, 2011, the
station's public inspection file was missing even the daily logs.
7. Had Vision Latina Broadcasting exercised even minimal diligence prior
to the submission of its certification, it would not have submitted
incorrect and misleading material factual information in its
certification. Although there is insufficient information to conclude
that Vision Latina Broadcasting's provision of incorrect material
factual information was intentional in violation of Section 1.17(a)(1)
of the Rules, we find that Vision Latina Broadcasting apparently
willfully violated Section 1.17(a)(2) of the Rules by providing
material factual information that was incorrect without a reasonable
basis for believing that the information was correct and not
misleading.
A. Proposed Forfeiture
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for misrepresentation or
lack of candor is the statutory maximum. Therefore, for broadcasters
such as Vision Latina, the base forfeiture is $37,500 for each
violation or each day of a continuing violation. In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(E) of the Act, which
include the nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and other
such matters as justice may require. Given the totality of the
circumstances, we find a significant forfeiture appropriate. The
Commission has stated that "[we rely] heavily on the truthfulness and
accuracy of the information provided to us. If information submitted
to us is incorrect, we cannot properly carry out our statutory
responsibilities." Applying the Forfeiture Policy Statement, Section
1.80 of the Rules, and the statutory factors to the instant case, we
conclude that Vision Latina Broadcasting is apparently liable for a
total forfeiture in the amount of $25,000 for providing incorrect
factual information to the Commission.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Vision Latina
Broadcasting, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty five thousand dollars ($25,000)
for violation of Section 1.17(a)(2) of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Vision
Latina Broadcasting, 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. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the Account Number and FRN
referenced above. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must also be submitted. An FCC Form 159
may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. When
completing the FCC Form 159, enter the Account Number in block number
23A (call sign/other ID) and enter the letters "FORF" in block number
24A (payment type code). Payment by check or money order must be made
payable to the order of the Federal Communications Commission. Such
payments 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. 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. If you have
questions regarding payment procedures, please contact the Financial
Operations Group Help Desk at 1-877-480-3201 or E-mail:
ARINQUIRIES@fcc.gov. Vision Latina Broadcasting, Inc. will also send
electronic notification on the date said payment is made to
SCR-Response@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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Houston Office, 9597 Jones Road #362, Houston, Texas
77065, and include the NAL/Acct. No. referenced in the caption. Vision
Latina Broadcasting, Inc. also shall e-mail the written response to
SCR-Response@fcc.gov.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner 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 petitioner'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. Vision Latina Broadcasting, Inc. recently
submitted its financial information in response to another Notice of
Apparent Liability for Forfeiture. If Vision Latina Broadcasting, Inc.
seeks to request a reduction based on inability to pay, it should
submit updated financial information.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and first class mail to Vision Latina Broadcasting, Inc. at
419 Stadium Road, Port Arthur, Texas 77642.
FEDERAL COMMUNICATIONS COMMISSION
Lee R. Browning
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 1.17(a)(2).
See Vision Latina Broadcasting, Inc., Notice of Apparent Liability for
Forfeiture and Order, 26 FCC Rcd 9231 (Enf. Bur. 2011) (1st NAL).
See 47 C.F.R. S: 73.3526.
1st NAL at 9231.
Letter from Gilardo Castro, Vice President, Vision Latina Broadcasting,
Inc., to Lee. R. Browning, Resident Agent, Houston Office at 2 (Aug. 25,
2011) (LOI Response).
Letter from Gilardo Castro, President, Vision Latina Broadcasting, Inc.,
to Lee. R. Browning, Resident Agent, Houston Office at 1 (Dec. 15, 2011)
(2nd LOI Response).
Id.
Id.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S: 1.17(a)(2).
47 C.F.R. S: 1.17(b)(2).
See Amendment of Section 1.17 of the Commission's Rules Concerning
Truthful Statements to the Commission, Report and Order, 18 FCC Rcd 4016,
4021 (2003) (Amendment of Section 1.17 R&O), recon. denied, Memorandum
Opinion and Order, 19 FCC Rcd 5790, further recon. denied, Memorandum
Opinion and Order, 20 FCC Rcd 1250 (2004) (Amendment of Section 1.17
MO&O).
See Amendment of Section 1.17 MO&O, 20 FCC Rcd at 4017 (stating that the
revision to Section 1.17 of the Rules is intended to "prohibit incorrect
statements of omissions that are the results of negligence, as well as an
intent to deceive").
Amendment of Section 1.17 R&O, 18 FCC Rcd at 4021.
LOI Response at 2.
2nd LOI Response at 1.
See Invision Industries, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 13095, 13103-04 (2008) (finding that a television
importer's failure to exercise due diligence to ensure that the
information provided in its LOI Response was correct and not misleading
constituted a violation of Section 1.17(a)(2) of the Rules) (Invision);
Syntax-Brillian Corporation, Forfeiture Order and Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 6323, 6342 (2008) (finding that a
television manufacturer apparently provided incorrect material information
concerning its importation and interstate shipment of non-DTV-compliant
televisions without a reasonable basis for believing that the information
was correct and not misleading, in violation of Section 1.17(a)(2) of the
Rules) (Syntax-Brillian Further NAL); Citicasters License, L.P., et al.,
Memorandum Opinion and Order and Notice of Apparent Liability, 22 FCC Rcd
19324, 19338 (2007) (forfeiture paid) (finding that a licensee's false
certification that it had not violated the Act or any Commission Rules
during the preceding license term had no reasonable basis and was not made
with the intent to deceive the Commission but nonetheless, violated
Section 1.17(a)(2) of the Rules). See also Cardinal Broadband LLC, aka
Sovereign Telecommunications, Notice of Apparent Liability for Forfeiture,
23 FCC Rcd 12233, 12237 (Enf. Bur. 2008) (Cardinal Broadband LLC),
response pending (finding that an interconnected VoIP provider provided
without a reasonable basis for believing that the information was correct
and accurate incorrect material factual information in violation of
Section 1.17(a)(2) of the Rules).
47 C.F.R. 1.17(a)(1).
See, e.g., Cardinal Broadband LLC, 23 FCC Rcd at 12237.
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 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80. See, e.g., SBC Communications,
Inc., Notice of Apparent Liability, 16 FCC Rcd 19091, 19120 (2001)
(statutory maximum forfeiture amount proposed for intentional violation of
Section 1.17 of the Rules) (subsequent history omitted).
See Amendment of Section 1.80(b) of the Commission's Rules, Adjustment of
Forfeiture Maxima to Reflect Inflation, Order, 23 FCC Rcd 9845 (2008).
47 U.S.C. S: 503(b)(2)(E).
See, e.g., Access.1 New York License Company, LLC, Notice of Apparent
Liability, 22 FCC Rcd 15205, 15209 para. 11 (Media Bur. 2007) (forfeiture
amount proposed for provision of incorrect material factual information
adjusted downward from statutory maximum amount of $32,500 to $10,000 on
basis that violation was unintentional). Compare Syntax-Brillian Further
NAL, 23 FCC Rcd at 6343 para. 46 (proposing statutory maximum forfeiture
($11,000) for apparent negligent misrepresentation based on totality of
the circumstances; company corrected the erroneous information only after
the Commission had relied on it in an earlier enforcement action);
Intelsat North America, Notice of Apparent Liability, 21 FCC Rcd 9246,
9250 para. 12 (Enf. Bur., Inv. & Hearings Div. 2006) (proposing statutory
maximum forfeiture ($11,000) for apparent negligent misrepresentation
based on the totality of the circumstances, including ability to pay and
the Commission's reliance on the incorrect information). We note that in
the Syntax-Brillian and Intelsat cases, our statutory maximum forfeiture
was significantly less than that applicable to broadcast licensees and
common carriers.
Amendment of Section 1.17 of the Commission's Rules Concerning Truthful
Statements to the Commission, Notice of Proposed Rulemaking, 17 FCC Rcd
3296, 3297, para. 3 (2002).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.17(a)(2), 1.80.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 12-931
6
Federal Communications Commission DA 12-931