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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 In Reply Refer To: 1800C1-KS 98100073 June 22, 1999 Released: June 23, 1999 CERTIFIED MAIL -- RETURN RECEIPT REQUESTED Pacific Spanish Network, Inc. Licensee, Station KTTA(FM), Esparto, CA 296 H Street Third Floor Chula Vista, CA 91910 In re: Station KTTA(FM), Esparto, CA Dear Licensee: The Chief, Mass Media Bureau, pursuant authority delegated under Section 0.283 of the Commission's Rules, has before him for consideration information suggesting that you have violated the Commission's public inspection file rule. The information further suggests that, due to the serious and repeated nature of this rule violation, your pending license renewal application should not be granted, but should instead be designated for evidentiary hearing. Your pleadings responsive to those allegations are also before the Chief, Mass Media Bureau. For the reasons discussed below, we have determined that forfeiture rather than designation for hearing, appears appropriate. Consequently, this letter constitutes a NOTICE OF APPARENT LIABILITY FOR A FORFEITURE, pursuant to Section 503(b) of the Communications Act of 1934, as amended (the "Act"). Background Matters. COBE Laboratories, Inc. ("COBE"), a business creditor of your principal Jaime Bonilla Valdez ("Bonilla"), filed an "Objection to Renewal Applications and Petitions for Rescission of Operating Authorizations" on December 31, 1997, opposing, inter alia, the license renewal application of Station KTTA(FM), Esparto, California. COBE later withdrew that objection pursuant to a "comprehensive settlement" of its legal disputes with Bonilla. By letter under separate cover, we found that it satisfied the requirements of 47 C.F.R. 73.3588, which governs the withdrawal and dismissal of petitions to deny and informal objections. We remain obligated, however, under Booth American Company, 58 FCC 2d 553, 554 (1976), to consider the merits of COBE's charges, notwithstanding the private settlement of that dispute. See Stockholders of CBS, Inc., 11 FCC Rcd 3733, 3741 (1995) (subsequent history omitted). We find that the matters complained of by COBE, considered in conjunction with your response, indicate that you apparently violated the pertinent Commission rules by failing to properly maintain the station's public inspection file, for the reasons set forth below. KTTA(FM) public inspection file. COBE alleges that you violated the Commission's public inspection file rule, Section 73.3526 of the Commission's Rules. In this case, the licensee's corporate management informed COBE's investigator that the station's file was not kept at its main studio, but was located at the public library in Esparto. Thereafter, the investigator visited on December 3, 1997, and discovered that the library was open to the public only 21.5 hours per week, which COBE alleges is inconsistent with the requirements of Section 73.3526(d) of the Commission's Rules. That rule specifically provides that the file shall be kept at a location that affords public access "at any time during regular business hours." The investigator further claims that the public file was deficient because a number of required documents were missing. You acknowledge that the school's library kept irregular hours, but contend that this did not pose a problem regarding public access to the file. You claim that the school's supervising office kept regular business hours, and made the station's file available during that time to those seeking access to it when the library itself was closed. Nevertheless, you relocated the station's file on January 23, 1998 from the library to the Esparto Water District Office. With regard to the station file's contents, you concede that the following required information was missing on December 3, 1997, but was later included: copies of the 1997 license renewal application; the annual ownership reports and annual EEO reports for the entire license term; quarterly issues/programs lists; and written certifications of its required public notice announcements of the filing of its license renewal application. As a result of the station's review of this matter, you admit that aspects of the public inspection file were deficient for several years, due in part to the departure, "in late 1994," of Mateo Camarillo, the former corporate officer who monitored this task, and also because the station's subsequent managers were unaware of the necessity to include and update other information required to be contained in the file. You claim that, to correct this problem, regular filing procedures were instituted at the station in January 1998, and the public file was reconstructed in February 1998. Section 73.3526(a) of the Commission's Rules requires broadcast licensees to maintain a public file containing specific types of information related to station operations. The purpose of this requirement is to provide the public with timely information at regular intervals throughout the license period, so that concerned individuals or groups may participate effectively in Commission procedures concerning a broadcast licensee, including the evaluation of its performance. See, e.g., Liability of KLDT-TV 55, Inc., 8 FCC Rcd 6316 (1993), forfeiture reduced, 10 FCC Rcd 3198 (1995). The public file generally must be maintained within the station's community of license even if the station's main studio is located outside of that community. See 47 C.F.R. Section 73.3526(d). The file must be available to the public at any time during regular business hours. Id.; Public Notice, "Availability of Locally Maintained Records for Inspection by Members of the Public," DA 98-1895 (September 28, 1998), citing WBRN, Inc., 32 FCC 2d 729 (1971); Morton L. Berfield, Esq., 71 RR 2d 142 (FOB 1992) (the file must be immediately available for inspection by members of the public, not through appointments or at times most convenient to the licensee). In this case, it appears that the station's file has, in fact, been kept at permissible locations that provided sufficient public access during regular business hours. However, the evidence available indicates that you failed to keep the station's public inspection file complete and current as required by the rules. Where lapses occur, neither the negligent acts or omissions of station employees or agents, nor the subsequent remedial actions undertaken by the licensee, excuse or nullify a licensee's rule violation. See Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970), citing Eleven Ten Broadcasting Corp., 33 FCC 706 (1962); Morton L. Berfield, Esq., supra; Surrey Front Range Limited Partnership, 71 RR 2d 882 (FOB 1992). It appears, therefore, that you violated Section 73.3526 of the Commission's Rules from late 1994 until February 1998. Sanction. For the reasons set forth above, we find that a forfeiture is warranted for the apparent violation of Section 73.3526 of the Commission's Rules. From the information supplied, it appears that the public inspection file rule violation at Station KTTA(FM) first occurred in late 1994, and continued until February 1998. Accordingly, pursuant to Section 503(b) of the Act, you, Pacific Spanish Network, Inc., licensee of the above-captioned radio station, are hereby advised of your apparent liability for a forfeiture of Ten Thousand Dollars ($10,000.00) for your apparent willful, repeated violation of Section 73.3526 of the Commission's Rules. In assessing this monetary forfeiture, we have taken into account the nature, circumstances, extent and gravity of the violation, as well as the degree of culpability and the station's prior enforcement history. Section 503(b)(2)(D) of the Act, 47 U.S.C. Sec. 503(b)(2)(D). We further note that the Report and Order "In the Matter of the Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines," 12 FCC Rcd 17087 (July 28, 1997) ("Forfeiture Policy Statement"), provides for a forfeiture of $10,000 as the base amount for a violation of the public inspection file rule. In the instant case, you violated the rule by failing to include required material within the public file for a substantial period of time, more than one year. Although our records indicate that the station has maintained an unblemished past enforcement record, we believe that these factors nevertheless warrant a monetary forfeiture. See, e.g., Liability of KLDT-TV 55, Inc., supra, 10 FCC Rcd at 3200 (1995), citing Southern Arkansas Radio Co., 6 FCC Rcd 5130 (MMB 1991) (monetary forfeiture appropriate where, as here, serious public file omissions occur). Therefore, we believe that imposition of the base forfeiture amount is warranted for this violation. In regard to this forfeiture proceeding, you are afforded a period of thirty (30) days from the date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced should include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R. Section 1.80(f)(3). Other relevant provisions of Section 1.80 are summarized in the attachment to this letter. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau cc: H. Russell, III G. LaVerne Brooks Howard A. Topel, Esq. Theodore D. Kramer, Esq.