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Ernesto Bustos

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Released: April 18, 2013

Federal Communications Commission

DA 13-779

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of:
)
)

Ernesto Bustos
)
Facility I.D. No. 54983
Licensee of Station WTBL-CD,
)
NAL/Acct. No. 201341420009
Lenoir, North Carolina
)
FRN: 0021349188

NOTICE OF APPARENT

LIABILITY FOR FORFEITURE

Adopted: April 17, 2013

Released: April 18, 2013

By the Chief, Video Division, Media Bureau:

I. INTRODUCTION

1. In this Notice of Apparent Liability for Forfeiture (“NAL”)1 we find that Ernesto Bustos (the
“Licensee”), licensee of Class A television station WTBL-CD, Lenoir, North Carolina (the “Station”),
apparently willfully and/or repeatedly violated Section 73.3526(e)(11)(iii) of the Rules, by failing to
prepare, place in its public file, and file electronically with the Commission certain of the Station’s
Children’s Television Programming Reports (Form 398) in a timely manner.2 Based upon our review of
the facts and circumstances before us, we conclude that the Licensee is apparently liable for a monetary
forfeiture in the amount of Thirteen Thousand Dollars ($13,000).

II. BACKGROUND

2.
Section 73.3526 of the Rules requires each commercial broadcast licensee to maintain a
public inspection file containing specific types of information related to station operations.3 As set forth
in subsection 73.3526(e)(11)(iii), each commercial television licensee is required to prepare and place in
its public inspection file a Children’s Television Programming Report (FCC Form 398) for each calendar
quarter reflecting, inter alia, the efforts that it made during that quarter to serve the educational and
informational needs of children. That subsection also requires licensees to file the reports with the
Commission and to publicize for the public the existence and location of the reports.
3. On March 31, 2011, the Chief, Video Division, Media Bureau, issued a letter informing the
Licensee (“Letter”) that Commission records showed that the Licensee failed to make the required Form
398 electronic filings for the last two quarters in 2009 and all four quarters in 2010. The Letter required
the Licensee to provide information identifying the quarters in 2009 and 2010 for which a Children’s
Television Programming Report was prepared and placed in the Stations’ public inspection files, and the
location of the files. The Letter further required that this information be filed within 30 days and stated


1 This NAL is issued pursuant to Section 503(b) of the Communications Act of 1934, as amended (the “Act”), and
Section 1.80 of the Commission’s Rules (the “Rules”). See 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. The Chief, Video
Division, Media Bureau, has delegated authority to issue the NAL under Section 0.283 of the Rules. See 47 C.F.R. §
0.283.
2 47 C.F.R. § 73.3526(e)(11)(iii).
3 47 C.F.R. § 73.3526.

Federal Communications Commission

DA 13-779

that failure to provide the requested information would result in the institution of a forfeiture proceeding
and/or loss of Class A television status.
4. On April 6, 2012, the Licensee filed a Response, admitting that it had failed to prepare and
file the reports in a timely manner and stating that the reports for the third and fourth quarters of 2009 and
all four quarters of 2010 were prepared during the week of June 13-17, 2011, were electronically filed
with the Commission on June 17, 2011, and were placed in the public file on June 20, 2011.4
Commission records also show that the report for the first quarter of 2011 was electronically filed on June
17, 2011.

III. DISCUSSION

5. The Licensee’s failure to prepare, place in its public file, and file electronically with the
Commission in a timely manner the Children’s Television Programming Reports for the Station
constitutes an apparent willful and/or repeated violation of Section 73.3526(e)(11)(iii).
6. This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision, 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.5
7. The Commission’s Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules establish
a base forfeiture amount of $3,000 for failure to file a required form and a base forfeiture amount of
$10,000 for public file violations.6 In determining the appropriate forfeiture amount, we may adjust the
base amount upward or downward by considering the factors enumerated in Section 503(b)(2)(D) of the
Act, including “the nature, circumstances, extent and gravity of the violation, and, with respect to the
violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as
justice may require.”7
8. In this case, the Licensee failed to prepare, file with the Commission and place in the public
inspection file Children’s Television Programming Reports in a timely manner for 7 quarters. Based on
the record before us, we believe that a forfeiture in the amount of $13,000 for the Station is appropriate
for the Licensee’s apparent willful and/or repeated violations of Section 73.3526(e)(11)(i).

IV. ORDERING CLAUSES

9. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of


4 Licensee Response to Letter of Inquiry (Apr. 6, 2012) at 3.
5 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). 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. 47
U.S.C. § 312(f)(1). The legislative history to Section 312(f)(1) of the Act, see H.R. Rep. No. 97-765, 97th Cong. 2d
Sess. 51 (1982), 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. See Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). Section 312(f)(2) 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.” 47
U.S.C. § 312(f)(2).
6 See Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines
, Report and Order, 12 FCC Rcd 17087, 17113-15 (1997) (“Forfeiture Policy Statement”), recon. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section I.
7 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100-01; 47 C.F.R. § 1.80(b)(4)
and note to paragraph (b)(4), Section II.
2

Federal Communications Commission

DA 13-779

1934, as amended, and Section 1.80 of the Commission’s Rules, that Ernesto Bustos is hereby NOTIFIED
of its APPARENT LIABILITY FOR FORFEITURE in the amount of Thirteen Thousand Dollars
($13,000) for its apparent willful and repeated violations of Section 73.3526 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, Ernesto Bustos 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 proposed forfeiture must be made by check or similar instrument, payable to
the order of the Federal Communications Commission. The payment must include the NAL/Acct. Nos.
and FRN Nos. referenced in the caption above. Payment by check or money order may be mailed to
Federal Communications Commission, at 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, BNF: FCC/ACV--27000001 and account number as expressed
on the remittance instrument. If completing the FCC Form 159, enter the NAL/Account numbers in
block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type
code). Licensee will also send electronic notification on the date said payment is made to
Peter.Saharko@fcc.gov.
12. The response, if any, must be mailed to Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, ATTN: Barbara A. Kreisman, Chief,
Video Division, Media Bureau, and MUST INCLUDE the NAL/Acct. Nos. referenced above.
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. Requests for full payment of the forfeiture proposed in this NAL under the installment plan
should be sent to: Associate Managing Director- Financial Operations, 445 12th Street, S.W., Room 1-
A625, Washington, D.C. 20554.8
15. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and
Certified Mail, Return Receipt Requested, to Ernesto Bustos, 5110 SE Stark Street, Portland, Oregon,
97215, and Licensee’s counsel, Dennis J. Kelly, Esq., P.O. Box 41177, Washington, D.C., 20018.
FEDERAL COMMUNICATIONS COMMISSION
Barbara A. Kreisman
Chief, Video Division
Media Bureau


8 See 47 C.F.R. § 1.1914.
3

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