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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-10-HU-0068
)
Vision Latina Broadcasting, Inc. NAL/Acct. No.: 201232540006
)
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
that Vision Latina Broadcasting, Inc. (Vision Latina Broadcasting),
licensee of Station KBPO, in Port Neches, Texas, apparently willfully
violated Section 73.3526 of the Commission's rules (Rules), by
failing to make available a complete public inspection file. We
conclude that Vision Latina Broadcasting is apparently liable for a
forfeiture in the amount of fifteen thousand dollars ($15,000).
II. BACKGROUND
2. On October 13, 2011 agents from the Enforcement Bureau's Houston
Office (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, Vision Latina Broadcasting stated "the "Issue
Programs Lists" folder was empty due an oversight by the licensee."
Vision Latina Broadcasting also stated that issues-programming
listings have since been placed in Station KBPO's public inspection
file.
III. DISCUSSION
3. 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. Failure to Make Available a Complete Public Inspection File
4. Section 73.3526 of the Rules states that "[e]very permittee or
licensee of an AM, FM, TV or a Class A station in the commercial
broadcast services shall maintain a public inspection file containing
the material" set forth in that section. Section 73.3526(e)(12) of
the Rules states that commercial AM and FM broadcast stations must
retain in the file "every three months a list of programs that have
provided the station's most significant treatment of community issues
during the preceding three month period. [ . . . ] The lists described
in this paragraph shall be retained in the public inspection file
until final action has been taken on the station's next license
renewal application." The public inspection file must be maintained
at the main studio of the station, and must be available for public
inspection at any time during regular business hours.
5. On October 13, 2011, an agent from the Houston Office inspected the
public inspection file for Station KBPO during regular business hours
and found the file did not contain any issues-programs listings. Based
on the evidence before us, we find that Vision Latina Broadcasting
apparently willfully violated Section 73.3526 of the Rules by failing
to make available a complete public inspection file.
B. Proposed Forfeiture Amount
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for violation of public
file rules is $10,000. 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. We find that Vision Latina Broadcasting's history of prior
offenses warrants an upward adjustment in forfeiture. On December 9,
2010, agents from the Houston Office inspected Station KBPO's public
inspection file and found it was missing, among other things, all
issues-programming lists. Because Vision Latina Broadcasting violated
the Commission's public inspection file rules twice within a year and
once after being informed of the violation, we find its actions
demonstrate a deliberate disregard for the Commission's rules and a
pattern of non-compliance, justifying an upward adjustment in the
amount of $5,000. 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 $15,000 for failing to make
available a complete public inspection file.
IV. ORDERING CLAUSES
7. 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 fifteen thousand dollars ($15,000) for
violation of Section 73.3526 of the Rules.
8. 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.
9. 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. shall also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
10. 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.
11. 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.
12. 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: 73.3526.
Letter from Gilardo Castro, President, Vision Latina Broadcasting, Inc.,
to Lee R. Browning, Resident Agent, Houston Office at 1 (Dec. 15, 2011)
(on file in EB-10-HU-0068) (LOI Response).
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., Application for Review of 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: 73.3526(a)(2).
47 C.F.R. S: 73.3526(e)(12).
47 C.F.R. S: 73.3526(b).
47 C.F.R. S: 73.3526(c).
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.
47 U.S.C. S: 503(b)(2)(E).
Pilot Travel Centers, L.L.C., Notice of Apparent Liability for Forfeiture,
19 FCC Rcd 23113, 23117, para.17 (2004) (upwardly adjusting a proposed
forfeiture to $125,000 from a base aggregate $91,000 amount, based on a
finding that the retailer continued to market unauthorized devices after
receiving 9 citations, which evinced "a pattern of intentional
non-compliance with and apparent disregard for" the Commission's equipment
rules"); SpectraSite Communications, Inc., Notice of Apparent Liability
for Forfeiture, 17 FCC Rcd 7884, 7888 paras. 16-18 (2002) (upwardly
adjusting a proposed aggregate forfeiture to $111,000 from a $37,000
aggregate base amount, based on findings that the antenna owner continued
to violate antenna marking, lighting and registrations requirements, after
being issued forfeiture for similar violations).
See Vision Latina Broadcasting, Inc., Forfeiture Order, 27 FCC Rcd 2978
(Enf. Bur. 2012). In a separate order released today, we also propose a
$25,000 forfeiture against Vision Latina for an apparent negligent
misrepresentation to the Bureau in connection with this earlier
proceeding. Vision Latina Broadcasting, Inc., Notice of Apparent Liability
for Forfeiture, EB-10-HU-0068, DA 12-931 (Enf. Bur. rel. June 14, 2012).
As explained therein, in response to the earlier Notice of Apparent
Liability for Forfeiture and Order, Vision Latina submitted a sworn
declaration that it had remedied its public file violations. A subsequent
inspection by FCC field agents, however, revealed that this statement was
mistaken. Given Vision Latina's continued compliance issues, we will not
order the station to submit another sworn statement about its compliance
with our public file rules, but instead will conduct a follow-up
inspection at an undisclosed time. Any additional violations may be
subject to more significant monetary penalties.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.3526.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 12-933
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Federal Communications Commission DA 12-933