*Pages 1--4 from Microsoft Word - 7312.doc* Federal Communications Commission DA 01- 596 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 In the Matter of TELEMUNDO NETWORK GROUP, LLC Holder of Permit to Transmit or Deliver Programs to Foreign Stations ) ) ) ) ) ) Acct. No. 200132080022 File No. EB- 01- IH- 0034, GS NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: March 6, 2001 Released: March 7, 2001 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture, we find that Telemundo Network Group, LLC (“ Telemundo”) transmitted or delivered programming to a foreign station without a valid permit, in apparent willful and repeated violation of Section 325( c) of the Communications Act of 1934, as amended. 1 We conclude that Telemundo is apparently liable for a forfeiture in the amount of $7, 000. II. BACKGROUND 2. Telemundo operates Telemundo Network, which provides primarily Spanish- language programming for television stations. In 1992, the Commission staff, pursuant to Section 325( c) of the Act, granted Telemundo a permit to transmit or deliver programming to a number of television stations in Mexico, including Station XHAS( TV) in Tijuana. On July 1, 1993, the permit expired. Despite the lack of a valid authorization, Telemundo, for nearly two years, apparently continued to transmit or deliver programming to Station XHAS( TV). On June 30, 1995, Telemundo filed an application for a new Section 325( c) permit to transmit or deliver programming to Station XHAS( TV). In the application, Telemundo characterized it’s failure to timely seek an extension of the prior permit as “inadvertent” and an “isolated oversight.” 3. On September 1, 1995, the Commission staff granted Telemundo’s application for a new Section 325( c) permit. In its letter granting the new five- year authorization, the Commission staff stated: You are reminded, however[,] that Commission licensees are expected to comply fully with the requirements of [the] Communications Act and the Commission’s Rules. As such, it is 1 47 U. S. C. § 325( c). 1 Federal Communications Commission DA 01- 596 2 expected that Telemundo will in the future comply fully with Section 325( c) of the Communications Act . . . . 4. On September 1, 2000, Telemundo’s permit expired. Despite the lack of a valid authorization, Telemundo, for nearly three months, continued to transmit or deliver programming to Station XHAS( TV). On November 22, 2000, Telemundo filed an application for a new Section 325( c) permit to transmit or deliver programming to Station XHAS( TV), and, on December 7, 2000, it requested Special Temporary Authority (“ STA”) to do so. In the STA request, Telemundo again characterized its failure to timely seek an extension of the prior Section 325( c) permit as “inadvertent.” The Commission staff subsequently granted the STA request and the application on December 12, 2000, and January 12, 2001, respectively. III. DISCUSSION 5. Section 325( c) of the Act states: No person shall be permitted to locate, use, or maintain a radio broadcast studio or other place or apparatus from which or whereby sound waves are converted into electrical energy, or mechanical or physical reproduction of sound waves produced, and caused to be transmitted or delivered 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. 6. Based on the information before us, we find that Telemundo transmitted or delivered programming to a foreign station without a valid permit, in apparent willful and repeated violation of Section 325( c) of the Act. 2 After its prior Section 325( c) permit expired on September 1, 2000, Telemundo continued to transmit or deliver programming to Station XHAS( TV) in Tijuana, Mexico. Station XHAS operates with a maximum effective radiated power of 1,000 kilowatts, and its emissions are received consistently in areas of southern California. Thus, at all relevant times, Telemundo was subject to the requirements of Section 325( c) of the Act. Telemundo apparently violated Section 325( c) of the Act between September 2, 2000, the day after its prior permit expired, and December 12, 2000, when it received an STA. Telemundo’s apparent violation of Section 325( c) of the Act during this period is aggravated by its history of noncompliance with Section 325( c) between 1993 and 1995. 7. Under these circumstances, we conclude that a monetary forfeiture appears warranted. Section 503( b)( 2)( D) of the Act 3 and Section 1. 80( b)( 4) of the Commission’s rules 4 require us to take into account “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 2 The Commission has held that an act or omission is “willful” if it is a conscious and deliberate act or omission, whether or not there is any intent to violate the rule. Southern California Broadcasting Company, 6 FCC Rcd 4387 (1991)( definition of willfulness contained in 47 U. S. C. § 312( f) applies equally to 47 U. S. C. § 503). Furthermore, a continuing violation is “repeated” if it lasts more than one day. Id., 6 FCC Rcd at 4388. 3 47 U. S. C. § 503( b)( 2)( D). 4 47 C. F. R. § 1.80( b)( 4). 2 Federal Communications Commission DA 01- 596 3 require.” The Commission’s Forfeiture Policy Statement, 5 which provides further guidance in establishing appropriate forfeiture amounts, does not articulate a base forfeiture amount for violations of Section 325( c) of the Act. 6 We believe, however, that transmitting or delivering programming to a foreign station without a valid permit, in violation of Section 325( c) of the Act, is comparable to operating a radio facility without a license, in violation of Section 301 of the Act. 7 Both violations involve a failure to apply for and obtain mandatory instruments of authority. Furthermore, Section 325( d) of the Act 8 specifically states that an application for a Section 325( c) permit “shall be subject to the requirements of section 309 [of the Act] with respect to applications for station licenses or renewal or modification thereof . . . .” 8. Pursuant to the Forfeiture Policy Statement, the base forfeiture amount for operating a radio facility without an instrument of authorization is $10,000. We believe this is an appropriate base forfeiture amount for a violation of Section 325( c) of the Act. In the instant case, the base forfeiture amount initially should be adjusted downward to $5,000 to reflect that Telemundo’s apparent violation of Section 325( c) of the Act resulted from a failure to timely renew a previous authorization. Because Telemundo previously was authorized to transmit or deliver programming to Station XHAS( TV), we do not consider Telemundo akin to a “pirate” operator for whom a $10,000 forfeiture ordinarily would be appropriate. On the other hand, Telemundo’s history of noncompliance with Section 325( c) of the Act is an aggravating factor that requires an upward adjustment. On balance, and taking into consideration the factors expressed in Sections 503( b)( 2)( D) and 1.80( b)( 4), we conclude that a forfeiture in the amount of $7,000 appears appropriate. IV. ORDERING CLAUSES 9. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503( b) of the Communications Act of 1934, as amended, that Telemundo Network Group, LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of $7,000 for apparently willfully and repeatedly violating Section 325( c) of the Communications Act of 1934, as amended. 10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s rules, that within thirty days of the release of this Notice, Telemundo Network Group, LLC SHALL PAY to the United States the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 9 5 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17,087 (1997), recon. denied, 15 FCC Rcd 303 (1999)(“ Forfeiture Policy Statement”). 6 The fact that the guidelines in the Forfeiture Policy Statement do not specify a base forfeiture amount does not mean that a forfeiture may not 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 17,099, para. 22. The Commission retains the discretion, moreover, to depart from the forfeiture guidelines and issue forfeitures on a case- by- case basis, under the general forfeiture authority contained in Section 503 of the Act. Id. 7 47 U. S. C. § 301. 8 47 U. S. C. § 325( d). 9 Payment 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 3 Federal Communications Commission DA 01- 596 4 11. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by Certified Mail -- Return Receipt Requested, to counsel for Telemundo Network Group, LLC: M. Anne Swanson, Esq., Dow, Lohnes & Albertson, PLLC, 1200 New Hampshire Avenue, N. W.; Suite 800, Washington, D. C. 20036- 6802. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau Commission, P. O. Box 73482, Chicago, Illinois 60673- 7482. The payment must reference the Acct. No. identified above. The response, if any, must reference the File No. identified above and be directed to Charles W. Kelley, Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, 445 12th Street, S. W., Room 3- B443, Washington DC 20554. 4