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Federal Communications Commission Before the Federal Federal Communications Commission Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Entravision Holdings, LLC ) File Nos.: EB-05-SD-299 ) EB-05-SD-300 Licensee of: ) EB-05-SD-301 KMXX (FM) ) Imperial, California ) NAL/Acct. No. 200632940005 Facility ID # 6665 ) FRN: 0001529627 ) KWST (AM) ) El Centro, California ) Facility ID # 33298 ) ) KSEH (FM) ) Brawley, California ) Facility ID # 6666 ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: March 27, 2006 By the District Director, San Diego Office, Western Region, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find that Entravision Holdings, LLC ("Entravision"), licensee of stations KMXX(FM), serving Imperial, California, KWST(AM), serving El Centro, California, and KSEH(FM), serving Brawley, California, apparently willfully and repeatedly violated Section 73.3526 of the Commission's Rules ("Rules")1 by failing to maintain a complete public inspection file for each station. We conclude, pursuant to Section 503(b) of the Communications Act of 1934, as amended ("Act"),2 that Entravision is apparently liable for a forfeiture in the amount twelve thousand dollars ($12,000). II. BACKGROUND 2. On November 29, 2005, an agent from the Enforcement Bureau’s San Diego Office conducted an examination of the public inspection files for broadcast stations KMXX(FM), KWST(AM) and KSEH(FM). The three radio stations are licensed to Entravision and the main studio for all three stations is located at 1803 N. Imperial Avenue, El Centro, California.3 The license term for each of the 1 47 C.F.R. § 73.3526. 2 47 U.S.C. § 503(b). 3 47 C.F.R. § 73.1125(a). Federal Communications Commission stations ended on December 1, 2005. The inspection revealed that the stations’ public inspection files did not contain all of the required quarterly radio issues/programs lists for the entire license term. 3. In the KMXX(FM) public inspection file, the agent observed that the quarterly radio issues/programs lists for all of 2000, the 3rd and 4th quarter of 2001, all of 2002 to 2004, and the 1st and 2nd quarters of 2005, were missing. In the KWST(AM) public inspection file, the agent observed that the quarterly radio issues/programs lists for the 2nd and 4th quarters of 2001, and the 1st and 2nd quarters for 2005, were missing. In the KSEH(FM) public inspection file, the agent observed that the quarterly radio issues/programs lists for the 3rd and 4th quarters of 2001, all of 2002 to 2004, and the 1st and 2nd quarters of 2005, were missing. The agent asked the Chief Engineer for the stations about the items missing from the public inspection files, and the Chief Engineer indicated that he did not know where the missing items were. 4. Entravision was required to file renewal applications for KMXX(FM), KWST(AM) and KSEH(FM) with the Commission no later than August 1, 2005, pursuant to Section 73.3539(a) of the Rules.4 A search of Commission’s records revealed Entravision filed timely renewal applications for each station.5 Each of the renewal applications were granted on November 29, 2005. The Public Notice announcing the renewal grants was issued on December 2, 2005.6 As no petitions for reconsideration were filed against the renewal grants, these grants became final actions on January 2, 2006.7 III. DISCUSSION 5. Section 503(b) of the 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. The term "willful" as used in Section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly.8 The term “repeated” means the commission or omission of such act more than once or for more than one day.9 6. Section 73.3526(a)(2) of the Rules requires that every licensee of an AM and FM station licensee shall maintain a public inspection file containing the material, relating to that station, described in paragraphs (e)(1) through (e)(10) and paragraphs (e)(12) through e(14) of this section as well as paragraph (e)(16) of this section.10 Further, as required by Section 73.3526(b), the public inspection file 4 47 C.F.R. § 73.3539(a). 5 See File No. BRH-20050801ATH (KMXX(FM)), filed August 1, 2005, File No. BR-20050801ATJ (KWST(AM)), filed August 1, 2005, and File No. BRH-20050801ATE (KSEH(FM)), filed August 1, 2005. 6 Public Notice: Broadcast Actions, Report No. 46123, released December 2, 2005 (“Public Notice”). 7 See 47 C.F.R. §§ 1.4(b)(4), 1.106(f). 8 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that "[t]he term 'willful', when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act…." See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 9 Section 312(f)(2) of the Act, 47 U.S.C. § 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.” 10 47 C.F.R. § 73.3526(a)(2). 2 Federal Communications Commission shall be maintained at the station’s main studio location.11 7. Section 73.3526(e)(12) of the Rules requires licensees to place in their public inspection file, for each calendar quarter, a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.12 This list is known as the radio issues/programs list and copies of the lists must be maintained in the file until final action has been taken on the station’s next renewal application. The public inspection files for KMXX(FM), KWST(AM) and KSEH(FM) contained no quarterly radio issues/program lists for multiple quarters during the relevant license term. Therefore, Entravision failed to comply with Section 73.3526(e)(12) of the Rules. 8. In the renewal applications filed during the relevant license period for KMXX(FM), KWST(AM) and KSEH(FM), in response to Section III, Question 3, Entravision certified that the public inspection files for all three stations had the proper documentation as required by 73.3526. However, as the San Diego agent’s examination revealed, Entravision did not have a complete public inspection file for each station at the time of the agent’s inspections. Entravision was aware of the requirement to have a complete public inspection file for KMXX(FM), KWST(AM) and KSEH(FM), given its response on the KMXX(FM), KWST(AM) and KSEH(FM) renewal applications. Therefore, Entravision’s violation is willful. The Chief Engineer indicated that he did not know the whereabouts of the material missing from the public inspection files, and no evidence could be found to indicate that any of the missing material was ever in place. Therefore, Entravision’s violation is repeated. Where lapses occur in maintaining the public inspection file, neither the negligent acts nor omissions of station employees or agents, nor the subsequent remedial actions undertaken by the licensee, excuse or nullify a licensee’s rule violation.13 9. Pursuant to The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the Forfeiture Guidelines (“Forfeiture Policy Statement”), and Section 1.80 of the Rules, the base forfeiture for public file violations is $10,000.14 In assessing the monetary forfeiture amount, we must also take into account the statutory factors set forth in Section 503(b)(2)(D) of the Act, which include the nature, circumstances, extent, and gravity of the violations, and with respect to the violator, the degree of culpability, and history of prior offenses, ability to pay, and other such matters as justice may require.15 Because the public inspection files for KMXX(FM), KWST(AM) and KSEH(FM) each contained a portion of the required items, a downward adjustment to $4,000 per station is warranted. Applying the Forfeiture Policy Statement, Section 1.80, and the statutory factors to the instant case, we conclude that Entravision is apparently liable for a $12,000 forfeiture. IV. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that, 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, Entravision Holdings, LLC, is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of twelve thousand dollars ($12,000) for violations of Section 73.3526 of the Rules.16 11 47 C.F.R. § 73.3526(b). 12 47 C.F.R. § 73.3526(e)(12). 13 See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999). 14 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80.
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