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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Pacific Spanish Network, Inc., ) File No. EB-04-SE-020
Holder of Permit to Transmit or ) NAL/Acct No. 200432100012
Deliver Programming to Foreign ) FRN: 0006146484
Stations )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 28, 2004 Released: July 30,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Pacific Spanish Network, Inc.,
(``PSN'') apparently liable for a forfeiture in the amount
of twenty thousand dollars ($20,000) for providing program
material via the Internet to a Mexican AM broadcast station
in willful and repeated substantial violation of the terms
and conditions of its authorization granted pursuant to
Section 325(c) of the Communications Act of 1934, as amended
(the ``Act'').1
II. BACKGROUND
2. Under Section 325(c) of the Act, the
transmission or delivery of broadcast programming to foreign
broadcast stations, such as those located in Mexico, for the
purpose of being received in the domestic radio market
requires application to and authorization granted by the
Commission.2 On May 16, 2003, PSN filed with the Commission
three applications pursuant to Section 325(c). In its
applications, PSN sought authority to supply broadcast
programming from its Chula Vista, California studio via the
Internet to Station XEKTT, frequency 550 kHz ,Tecate, Baja
California, Mexico, to Station XESS, frequency 780 kHz,
Ensenda, Baja California, Mexico, and to Station XEDD,
frequency 920 kHz, Ensenda, Baja California, Mexico. On
July 16, 2003, the Commission's International Bureau granted
PSN's applications and issued it a Section 325(c) permit.3
The Section 325(c) permit authorized PSN to supply ``music,
talk and other entertainment and informational programming
in Spanish'' to Station XEKTT on frequency 550 kHz located
in Tecate, Mexico, to Station XESS on frequency 780 kHz
located in Ensenada, Mexico, and to Station XEDD4 on
frequency 920 MHz located in Ensenada, Mexico. The Section
325(c) permit expressly states that it is based on PSN's
``representation that the statements contained in the
application[s] are true and that the undertakings described
will be carried out in good faith,'' and that it is
conditioned upon the Mexican stations' ``operation in full
compliance with applicable treaties and related provisions
concerning electrical interference to U.S. Broadcast
stations.''5
3. In early December 2003, in response to
complaints alleging that Station XEKTT was causing
interference to the reception of licensed AM broadcast
stations in the U.S., an agent from the Enforcement Bureau's
San Diego Office visited PSN's studio in Chula Vista,
California. The FCC agent met with PSN's President, Jaime
Bonilla, and advised him that Station XEKTT was causing
interference to licensed U.S. broadcast stations.6 Mr.
Bonilla told the agent that Station XEKTT was operating on
frequency 560 kHz, not 550 kHz, and that PSN was providing
programming to Station XEKTT from its Chula Vista studio via
the Internet.7 Mr. Bonilla provided the agent copies of the
authorizations granted by the Mexican government for Station
XEKTT on frequency 550 kHz and frequency 560 kHz.8 These
authorizations indicated that on November 14, 2003, the
Mexican government authorized Station XEKTT to operate on
frequency 550 kHz with 20 kW daytime and 10 kW nighttime
power, and subsequently, on December 9, 2003, the Mexican
government authorized Station XEKTT to operate on frequency
560 kHz with 20 kW daytime and 10 kW nighttime power. Mr.
Bonilla also told the agent that PSN expected to initiate
similar service to Stations XESS and XESDD at some future
time.9
4. On January 16, 2004, the Commission received
a petition to rescind PSN's Section 325(c) permit.10 The
petition maintained, and provided supporting engineering and
technical documentation to demonstrate, that Station XEKTT
had been operating on frequency 560 kHz, and that such
operations had caused substantial harmful interference to
the reception of certain U.S. radio stations' signals.11
The petition further maintained that the International
Bureau had never been notified of and approved Station
XEKTT's operation on frequency 560 kHz in accordance with
the 1986 U.S.-Mexico treaty governing coordination of medium
frequency AM band stations.12 The International Bureau
confirmed that it had received a coordination notification
from the Mexican government regarding Station XEKTT's
operation on 1600 kHz with 250 W daytime and nighttime power
in accordance with the U.S.-Mexico treaty, but the
International Bureau had never approved that operation. The
International Bureau also confirmed that it had never been
notified of or approved Station XEKTT's operation on either
550 kHz or 560 kHz, as required by the U.S.-Mexico treaty.
In addition, Enforcement Bureau staff subsequently confirmed
through monitoring of Station XEKTT that the Mexican station
was operating on 560 kHz at increased power levels from a
new transmitter site.
5. On January 28, 2004, the Commission received
a supplement to the petition to rescind.13 The supplement
maintained, and provided supporting engineering and
technical documentation to demonstrate, that Station XESS
would cause substantial harmful interference to the
reception of certain U.S. broadcast stations' signals when
it commenced operation on frequency 780 kHz from a new
transmitter site just south of the U.S.-Mexico border.14
The supplement further maintained that Station XESS's prior
operation on frequency 1450 kHz had been coordinated with
and approved by the International Bureau in compliance with
the U.S.-Mexico treaty, but that its current operation on
frequency 780 kHz from the new site had not been coordinated
or approved. In addition, the supplement maintained that a
new transmitter site for Station XESDD was under
construction and Station XESDD was expected to operate on
frequency 920 kHz. As with Stations XEKTT and XESS, the
petition maintained that Station XESDD's prior operation on
frequency 1560 kHz had been coordinated with and approved by
the International Bureau in compliance with the U.S.-Mexican
Agreement, but that its operation on frequency 920 kHz had
not been coordinated or approved. The International Bureau
confirmed that it had previously approved the operation of
Station XESS on frequency 1450 kHz with 1 kW daytime and
nighttime power. The International Bureau also confirmed
that it had been notified of and approved the operation of
Station XESDD on 920 kHz with 200 W nighttime power, but it
had not approved the proposed operation of Station XESDD
with 2.5 kW daytime power.
6. On February 11, 2004, the Commission received
a further supplement to the petition to rescind,15 claiming
that Station XESS had begun operating from its new site, and
as expected, was causing substantial harmful interference.16
7. The Enforcement Bureau's Spectrum Enforcement
Division (``Division'') sent PSN a letter of inquiry on
February 11, 2004 and a further letter of inquiry, on March
19, 2004.17 Pursuant to an extension of time, PSN filed
responses to the February 11 letter of inquiry on March 8,
2004, and responded to the March 19 further letter of
inquiry on March 29, 2004.18
8. In its responses, PSN stated that its May 16,
2003 Section 325(c) applications which identified and
described the Mexican stations' operations as subsequently
modified by the Mexican government in November and December
2003, were intended to be ``forward-looking.''19 In this
regard, PSN stated that it was aware at the time that it
filed its Section 325(c) applications that the Mexican
stations planned to modify and upgrade their facilities.20
PSN also stated that it did not verify, and did not know
that it was required to verify, that the Mexican stations'
operations had been coordinated and were in compliance with
the U.S.-Mexican Agreement, at the time it filed its Section
325(c) applications. PSN acknowledged that it provided
programming via the Internet from its Chula Vista,
California studio to Station XEKTT after that station began
operating on frequency 560 kHz in mid-November 2003.21 PSN
further acknowledged that it did not verify at that time
whether Station XEKTT's operation on frequency 560 kHz had
been coordinated with and approved by the Commission.22
Moreover, although PSN's Section 325(c) permit explicitly
stated that it authorized PSN to supply program material
from its Chula Vista, California studio via the Internet to
``stations identified and located as follows: ... XEKTT, 550
kHz, Tecate, Mexico,'' PSN claimed that ``its belief at the
time was that it could continue supplying programming to
XEKTT after it began operating on 560 kHz because it had a
Section 325(c) permit ... [and] it was not aware of any
requirement that it take further action at the FCC.''23
Additionally, PSN claimed that it did not know that Station
XEKTT was allegedly interfering with the U.S. broadcast
stations until the January 16, 2004 petition to rescind was
served, and that thereafter, it continued to supply
broadcast programming to Station XEKTT because ``it was
unaware of any FCC requirement that it discontinue service
to that station.''24 Finally, PSN stated that it
discontinued transmission of programming to Station XEKTT on
February 17 2004, and would neither resume cross-border
program transmissions to that station nor initiate such
transmissions to Stations XESS and XESDD, ``until
interference and other issues identified in the FCC's
February 11, 2004 investigatory letter have been
resolved.''25
9. On April 7, 2004, PSN tendered its Section
325(c) permit for cancellation.26 PSN explained its tender
by stating that ``it is evident that the proposals to
upgrade the Mexican stations were not coordinated with the
United States Government before or after PSN applied for its
permit ... and must undergo that procedure.''27 PSN stated
that it ``reserves the right'' to reapply for a Section
325(c) authorization upon completion of the coordination
proceedings and resolution of the interference issues .28
10. On April 8, 2004, the Joint Petitioners
submitted a reply to PSN's April 7, 2004 letter.29 The
Joint Petitioners assert that PSN's tendering of the Section
325(c) permit for cancellation in no way eliminates or
mitigates the fact that PSN knowingly operated in violation
of an express condition of its Section 325(c) permit.30
Accordingly, the Joint Petitioners urge the Enforcement
Bureau to issue a formal determination regarding such
violation and to impose appropriate sanctions upon PSN.31
Joint Petitioners also submit that the record in this
proceeding demonstrates that PSN is not qualified to hold a
permit to deliver programming to foreign broadcast stations
and assert that its Section 325(c) permit should be
cancelled with prejudice.32
III. DISCUSSION
11. Section 325(c) of the Act, as previously
noted, prohibits the transmission or delivery of programming
from a broadcast studio, place or other apparatus within the
United States to a radio station in a foreign country ``for
the purpose of being broadcast from any radio station there
having a power output of sufficient intensity and/or being
so located geographically that its emissions may be received
consistently in the United States, without first obtaining a
permit from the Commission upon proper application
therefor.'' Section 325(c) serves to prevent interference
to broadcast stations' signals, as well as the introduction
of broadcast material deemed inimical to the public
interest, within the United States.33
12. In the instant case, PSN admitted that it
provided programming from its Chula Vista, California studio
via the Internet to Station XEKTT after Station XEKTT began
operating on frequency 560 kHz in mid-November 2003,
notwithstanding the fact that the express terms of its
Section 325(c) permit only authorized it to provide
programming to Station XEKTT on frequency 550 kHz. We find
wholly unpersuasive PSN's claim that that it believed that
``it could continue supplying programming to XEKTT after it
began operating on 560 kHz because it had a Section 325(c)
permit.'' In this regard, PSN's Section 325(c) permit
explicitly states that ``[t]his permit shall not vest in the
permittee any right to operate beyond the term hereof nor in
any other manner than authorized herein.'' Moreover, while
PSN's Section 325(c) permit is explicitly ``conditioned upon
the Mexican stations operation in full compliance with
applicable treaties and related provisions concerning
harmful interference to U.S. Broadcast stations,'' PSN
admitted that it continued to supply programming to Station
XEKTT until February 17, 2004, at least a month after it
became aware that the Mexican station's modified operations
had not been coordinated with and approved by the
International Bureau in accordance with the U.S.-Mexico
treaty and that the Mexican station was causing harmful
interference to licensed U.S. broadcast stations.34
Accordingly, based upon the record before us, we find that
PSN supplied cross-border programming to Station XEKTT in
apparent willful35 and repeated36 violation of the express
terms and conditions of its Section 325(c) authorization.
13. Section 503(b)(1)(A) of the Act,37 and
Section 1.80(a)(2) of the Rules,38 provide that any person
who willfully or repeatedly fails to substantially comply
with the terms and conditions of a Commission issued permit,
license or other authorization shall be liable for a
forfeiture penalty. The forfeiture amount for entities
other than broadcast licensees or permittees, cable
television operators and common carriers may not exceed
$11,000 for each violation or each day of a continuing
violation, up to a maximum of $87,500 for any single
continuing violation.39 In determining the appropriate
forfeiture amount, we must consider the factors enumerated
in Section 503(b)(2)(D) of the Act, such as ``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.''40
14. Neither the Forfeiture Policy Statement nor
the rules establish a base forfeiture amount for supplying
program material to a foreign broadcast station in violation
of the terms of an authorization granted pursuant to Section
325(c) of the Act.41 However, we think that a substantial
proposed forfeiture is warranted. Considering the facts of
this case, including the fact that PSN's violation continued
for at least a month after PSN became aware that the
operation of Station XEKTT was not in compliance with the
applicable treaty and was causing harmful interference to
licensed U.S. broadcast stations, we find that it is
appropriate to propose a $20,000 forfeiture. Further, while
PSN has tendered its Section 325(c) permit for
cancellation,42 we find that such a post-remedial measure
does not lessen, mitigate, or excuse its past violations of
the Act.43
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to
pursuant to Section 503(b) of the Act44 and Sections 0.111,
0.311 and 1.80 of the Rules,45 Pacific Spanish Network, Inc.
IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty thousand dollars
($20,000) for willfully and repeatedly violating the express
terms and conditions of its Section 325(c) permit.
16. IT IS FURTHER ORDERED THAT, pursuant to
Section 1.80 of the Rules, within thirty days of the release
date of this Notice of Apparent Liability for Forfeiture and
Order, Pacific Spanish Network, Inc., SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
17. Payment of the forfeiture may be made by
mailing a check or similar instrument, payable to the order
of the Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment must include the FCC Registration Number (FRN)
and the NAL/Acct. No. referenced in the caption.
18. The response, if any, must be mailed to the
Office of the Secretary, Federal Communications Commission,
445 12th Street, S.W., Washington, D.C. 20554, ATTN:
Enforcement Bureau - Spectrum Enforcement Division, and must
include the NAL/Acct. No. referenced in the caption.
19. 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; 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.
20. Requests for payment of the full amount of
this NAL under an installment plan should be sent to: Chief,
Revenue and Receivable Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.46
21. Under the Small Business Paperwork Relief Act
of 2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002),
the FCC is engaged in a two-year tracking process regarding
the size of entities involved in forfeitures. If you
qualify as a small entity and if you wish to be treated as a
small entity for tracking purposes, please so certify to us
within thirty (30) days of this NAL, either in your response
to the NAL or in a separate filing to be sent to the
Enforcement Bureau - Spectrum Enforcement Division. Your
certification should indicate whether you, including your
parent entity and its subsidiaries, meet one of the
definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (``OCBO'')
set forth in Attachment A of this NAL. This information
will be used for tracking purposes only. Your response or
failure to respond to this question will have no effect on
your rights and responsibilities pursuant to Section 503(b)
of the Act. If you have questions regarding any of the
information contained in Attachment A, please contact OCBO
at (202) 418-0990.
22. IT IS FURTHER ORDERED that a copy of this
Notice of Apparent Liability for Forfeiture and Order shall
be sent by first class mail and certified mail return
receipt requested to Jaime Bonilla Valdez, President,
Pacific Spanish Network, Inc., 296 H Street, Suite 300,
Chula Vista, California 91910, and to counsel, Henry A.
Solomon, Esq., Garvey Schubert & Barer, 1000 Potomac Street,
N.W., Fifth Floor, Washington, D.C. 20007-3501.
23. IT IS FURTHER ORDERED that a copy of this
Notice of Apparent Liability for Forfeiture shall be sent by
first class mail and certified mail return receipt requested
to counsel for KGO-AM Radio, Inc., Tom W. Davidson and
Natalie G. Roisman, Akin Gump Strauss Hauer & Feld LLP, 1333
New Hampshire Avenue, N.W., Washington, D.C. 20036, and to
counsel for Owens One Company, AMFM Radio Licenses, LLC and
Capstar TX Limited Partnership, Gregory L. Masters and
Marnie K. Sarver, Wiley Rein & Fielding LLP, 1776 K Street,
N.W., Washington, D.C. 20006.
24. IT IS FURTHER ORDERED that the Petition to
Rescind Authorization filed jointly on January 16, 2004, by
Owens One Company, Inc., AMFM Radio Licenses, LLC, Capstar
TX Limited Partnership and KGO-AM Radio, Inc. IS DISMISSED
as moot, and that proceeding IS HEREBY TERMINATED.47
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Attachment A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
147 U.S.C. § 325(c).
247 U.S.C. § 325(c).
3See File No. 325-NEW-20030529-00004 (July 16, 2003)
(``Section 325(c) permit'')
4According to PSN, the official call sign for XEDD is
XESDD. See Letter from Henry A. Solomon, Esq. to Kathy
Berthot, Deputy Chief, Spectrum Enforcement Division,
Enforcement Bureau, at note 1 (March 8, 2004) (``March 8
LOI Response''). Hereinafter, Station XEDD will be
referred to as Station XESDD.
5Id.
6In its March 29, 2004 response to a letter of inquiry
issued by the Enforcement Bureau, PSN stated that Mr.
Bonilla ``does not recall'' being advised by the FCC agent
that Station XEKTT was causing interference to U.S.
broadcast stations. PSN stated that the agent told Mr.
Bonilla that the Commission had been receiving complaints
that Station XEKTT was not properly authorized on frequency
560 kHz. PSN further stated that Mr. Bonilla ``does not
deny that the FCC agent may have meant to imply that XEKTT
was causing interference.'' Letter from Henry A. Solomon,
Esq. to Kathy Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, at 2 (March 29, 2004)
(``March 29 LOI Response'').
7March 29 LOI Response at 3.
8Id.
9Id.
10See Petition to Rescind Authorization (January 16, 2004)
(jointly filed by Owens One Company, Inc., licensee of
KUZZ(AM), 550 kHz, Bakersfield, California, AMFM Radio
Licenses, LLC, licensee of KLAC(AM), 570 kHz, Los Angeles,
California and KFYI(AM), 550 kHz, Phoenix, Arizona, Capstar
TX Limited Partnership, licensee of KBLU(AM), 560 kHz,
Yuma, Arizona and KGO-AM Radio, Inc., licensee of KSFO(AM),
560 kHz, San Francisco, California).
11See note 10, supra (identifying the stations licensed to
the Joint Petitioners and affected by Station XEKTT's
operations).
12See Agreement Between the Government of the United States
of America and the Government of the United Mexican States
Relating to the AM Broadcasting Service in the Medium
Frequency Band, 1986.
13See Supplement to and Motion for Expeditious Grant of
Petition to Rescind Authorization (filed by the Joint
Petitioners, January 28, 2004)
14The supplement to the petition anticipated that Station
XESS's operations would affect Station KABC(AM), 590 kHz,
Los Angeles, California, licensed to KABC-AM Radio, Inc.,
wholly owned by ABC Holding Company, Inc., which also
wholly owns KGO-AM Radio, Inc., the licensee of KSFO(AM).
15See Supplement to Motion for Expeditious Grant of
Petition to Rescind Authorization (filed by the Joint
Petitioners, February 11, 2004).
16See note 14 and accompanying text, supra.
17See Letters Joseph P. Casey, Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Henry A. Solomon, Esq.,
Jaime Bonilla Valdez, President, PSN, Gregory L. Masters,
Esq., Marnie K. Sarver, Esq., Tom W. Davidson, Esq. and
Natalie G. Roisman, Esq. (March 18, 2004) and (February 11,
2004).
18See March 8 LOI Response and March 29 LOI Response.
19See March 29 LOI Response at 1, 5, 6.
20See March 29 LOI Response at 1, 5, 6. We note that PSN's
president, Jaime Bonilla, apparently has attributable
and/or related interests in the three Mexican stations.
Specifically, PSN stated that Mr. Bonilla holds the title
of General Director (unsalaried) at Media Sports De Mexico,
S.A. de C.V. (``MSM''), which manages all three Mexican
stations, and his spouse owns the controlling interest (98
percent of the voting shares) of MSM. March 29 LOI
Response. at 7. PSN further stated that MSM is seeking
SCT authority to acquire the stations and currently ``holds
title to the [their] transmitting facilities that were
constructed pursuant to the upgrade authorizations,'' for
which PSN financed all construction costs. Id. Finally,
PSN stated that it has oral time brokerage agreements with
all three Mexican stations. Id. at 7.
21March 8 LOI Response at 2. PSN indicates in its March 8
LOI Response that it first became aware that Station XEKTT
was operating on frequency 560 kHz in mid-November 2003.
Id. However, we note that the Mexican government
apparently did not authorize Station XEKTT to operate on
frequency 560 kHz until December 9, 2003. See paragraph 6,
supra.
22March 8 LOI Response at 2.
23March 29 LOI Response at 2.
24March 8 LOI Response at 3.
25See Letter from Henry A. Solomon, Esq. to Kathy Berthot,
Deputy Chief, Spectrum Enforcement Division, Enforcement
Bureau (February 25, 2004).
26See Letter from Henry A. Solomon, Esq. to Kathy Berthot,
Deputy Chief, Spectrum Enforcement Division, Enforcement
Bureau (April 7, 2004).
27Id. at 1.
28Id. at 2.
29Letter from Tom W. Davidson and Natalie G. Roisman,
counsel for KGO-AM Radio, Inc., and Gregory L. Masters and
Marnie K. Sarver, counsel for Owens One Company, AMFM Radio
Licenses, LLC and Capstar TX Limited Partnership, to Joseph
P. Casey, Chief, Spectrum Enforcement Division, Enforcement
Bureau (April 8, 2004).
30Id. at 1.
31Id.
32Id.
33See American Broadcasting Cos., Inc., 35 FCC 2d 1, 5-6 ¶
9 (1972); see also Fox Television Stations, Inc., 77 RR 2d
132,133, 137-38 ¶¶ 5, 30, 33-35 (1994), vacated and
remanded on other grounds, Channel 51 of San Diego v. FCC,
79 F.3d 1187, 1188-89 (D.C. Cir. 1996), rev'd on remand,
Fox Television Stations, Inc., 11 FCC Rcd 14870, 14875-78
¶¶ 17-25 (1996); aff'd sub nom, Radio Television S.A. DE
C.V. et al. v. FCC, 130 F.3d 1078 (D.C. Cir. 1997).
34As previously noted, PSN states that Mr. Bonilla ``does
not recall'' being advised of the interference from Station
XEKTT to licensed U.S. broadcast stations when the FCC
agent visited PSN's Chula Vista studio in early December
2003. See note 6, supra. However, PSN was clearly on
notice of the interference and the fact that Station
XEKTT's upgraded facilities had not been coordinated with
and approved by the International Bureau when the petition
to rescind was filed on January 16, 2004, more than a month
before PSN ceased supplying programming to Station XEKTT.
35Section 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', ... 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).
36Section 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).
3747 U.S.C. § 503(b)(1)(A).
3847 C.F.R. § 1.80(a)(2).
39See 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(b)(3).
4047 U.S.C. § 503(b)(2)(D); The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules
to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17110 (1997), recon. denied 15 FCC Rcd 303 (1999)
(``Forfeiture Policy Statement'').
41The fact that there is no established base forfeiture
amount for this violation does not indicate that no
forfeiture should be imposed. The Forfeiture Policy
Statement states that ``... any omission of a specific rule
violation from the ... [forfeiture guidelines] ... should
not signal that the Commission considers any unlisted
violation as nonexistent or unimportant.'' Forfeiture
Policy Statement, 12 FCC Rcd at 17099. The Commission
retains the discretion, moreover, to depart from the
Forfeiture Policy Statement and issue forfeitures on a
case?by?case basis, under its general forfeiture authority
contained in Section 503 of the Act. Id.
42Given that PSN has tendered its Section 325(c) permit for
cancellation, we find that the Joint Petitioners' petition
to rescind PSN's Section 325(c) permit is moot and we
accordingly dismiss it. To the extent that the Joint
Petitioners request that PSN's permit be cancelled with
prejudice, we refer that matter to the International Bureau
for consideration.
43See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871
¶ 14 (2002); KGVL, Inc., 42 FCC 2d 258, 259 (1973).
4447 U.S.C. § 503(b).
4547 C.F.R. § 0.111, 0.311 and 1.80.
46See 47 C.F.R. § 1.1914.
47For purposes of the forfeiture proceeding initiated by
this NAL, Pacific Spanish Network, Inc. shall be the only
party to the proceeding.