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FCC Denies Petition for Reconsideration Filed by Licensee

By Media Law Prof Blog

The FCC has denied a petition for reconsideration filed by former licensee Paulino Bernal Evangelism, which broadcast as AM Radio KBRN in Boerne, Texas. The FCC had issued a Forfeiture Order on October 19, 2004 after “willful and repeated violation of Sections 73.1125, 11.35(a) and 73.3527(c)(10) of the Commission’s Rules….The noted rule violations involve Evangelism’s failure to maintain a main studio in its community of license, failure to install and maintain operational Emergency Alert System (“EAS”) equipment during the hours of station operation, and failure to make the station’s public inspection file available.”

In its memorandum opinion and order the FCC notes that in 2003 “an agent from the Commission’s Dallas…office inspected [the]station….The agent could find no local or toll free telephone number for station KBRN and was unable to locate its main studio. The agent did locate KBRN’s transmitter tower and the shed containing its transmitting equipment but found that they were situated on private property behind locked fences and were inaccessible….[T]he only person working for KBRN in Boerne was an unpaid volunteer who would make KBRN’s public inspection file available upon request. The agent contacted the unpaid volunteer and stated he wanted to inspect KBRN’s public inspection file. The volunteer provided access to KBRN’s transmitted shed, but when asked to provide the station’s public inspection file, produced transmitter information and technical manuals, and stated that no other documentation for station KBRN was available.

“On December 19, 2003, the Dallas Office issued a Notice of Apparent Liability for Forfeiture (“NAL”, to Evangelism proposing a monetary forfeiture of $25,000…. In its reponse…, Evangelism argued that it did not violated the public inspection file requirement and that the proposed forfeiture should be reduced or cancelled on the basis of its inability to pay and history of overall compliance. In the Bureau Forfeiture Order, we rejected these arguments and imposed a monetary forfeiture order of $25,000 for willful and repeated violation….In its petition for reconsideration, Evangelism argues that it did not violate the main studio and public inspection file requirements; that, if it violated the Rules, there is no evidence that the violations were repeated; that it has a history of overall compliance; that imposition of a forfeiture…would be “contrary to Commission policy” because donors would be the ultimate source of payment; and that payment of a forfeiture would limit its “ability to generate programming in the public interest.”

In its memorandum and order, the FCC reexamined the reasons for the Rules, noting the justification for the public file requirement (“important purpose of facilitating citizen monitoring of a station’s operations and public interest performance…”) and the main studio requirement (“[a]lthough management personnel need not be “chained to their desks” during normal business hours, they must “report at the main studio on a daily basis, spend a substantial amount of time there and …use the studio as a home base”). It rejected Evangelism’s argument that the “unpaid volunteer…had limited facility in speaking and understanding English, and was nervous and did not understand that the agent had requested the public file…and would have provided KBRN’s public file if the FCC agent remained at the…studio “for a more reasonable period of time” or explained his request…”in a more reasonable fashion.” It also rejected the argument that the unpaid volunteer represented a meaningful presence at the studio.

The FCC also considered the claim that Evangelism had an overall record of compliance, and that the forfeiture would be an undue burden on those who must pay it, and rejected both arguments. “First, the ownership report on file…indicates Paulino Bernal owned 100 percent of Evangelism. Second, although SM and Evangelism are legally distinct entities, we find that, having the same owner at the time of the violations, they were so closely related that it is appropriate to consider SM’s violation in determining whether Evangelism has a history of overall compliance. Third, offenses need not be “prior” to be considered in determining whether there is a history of overall compliance. Finally, we can consider violations occurring in cases where there has been no final determination….

“Evangelism asserts that its revenues consist of donations by listeners, who would be the ultimate source of any forfeiture payment, and that imposition of a forfeiture…would, therefore, be “contrary to Commission policy.” Evangelism provides nothing to support this claim and, in fact, that Commission has no such policy.”

Read the entire text of the Memorandum and Order here. The case is In the Matter of Paulino Bernal Evangelism, File No. EB-03-DL-229, adopted August 23, 2006.