Federal Communications Commission DA 22-907 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) Hispanic Target Media Inc. ) FRN: 0025751587 ) For Renewal of License for ) Facility ID No. 189480 Station KPQS(FM) ) File No. 152973 Waterford, California ) MEMORANDUM OPINION AND ORDER Adopted: August 31, 2022 Released: August 31, 2022 By the Chief, Audio Division, Media Bureau: I. INTRODUCTION 1. We have before us the above-captioned application (Application) for the license renewal of station KPQS(FM), Waterford, California (Station or KPQS), filed by Hispanic Target Media Inc. (HTM or Licensee) on July 15, 2021. We also have before us an informal objection (Informal Objection) to the Application filed by Grace Orthodox Presbyterian Church of Modesto, California (Grace) on January 18, 2022.1 For the reasons set forth below, we deny the Informal Objection, grant the Application, and adopt the attached Consent Decree. II. BACKGROUND 2. Operation. The Station’s most recent license term began in July 20152 and expired December 1, 2021.3 In the Informal Objection, Grace objects to grant of the Application on the basis that “for the past eighteen months [prior to January 2022],” KPQS has been “basically off the air.”4 Grace asserts that it has regularly checked the KPQS signal during this time, although not daily.5 Grace suggests that the Commission reassess HTM’s character qualifications in light of recent rule violations at other stations.6 On May 5, 2022, the American Tower Corporation (ATC) stated that it terminated HTM’s lease on the ATC Tower for non-payment in June 2021,7 although it later clarified that KPQS 1 Grace is the licensee of station KGCE-LP, Modesto, California. Grace sent a supplemental email to the Informal Objection on May 16, 2022, which Bureau staff uploaded to LMS on May 17, 2022 (Supplement). 2 See Application File No. BLH-20150623ABK (granted July 2, 2015). 3 The Application was timely filed on July 15, 2021. See Federal Communications Commission, WWW.FCC.GOV, Broadcast Radio License Renewal Dates by STATE, https://www.fcc.gov/media/television/broadcast-television- license-renewal-dates-by-state (last updated Feb. 2, 2021) (listing August 2, 2021, as the due date for California broadcast radio renewal applications). The Station’s authorization to broadcast continued in effect while the Application was pending. See 47 U.S.C. § 307(c)(3). 4 Informal Objection at 2. 5 Id. 6 Informal Objection at 2. 7 Email from Mike Kritzman, Vice President, Broadcast, American Tower Corporation, to Christine Goepp, Attorney Advisor, Audio Division, Media Bureau, Federal Communications Commission (May 5, 2022). Federal Communications Commission DA 22-907 continued broadcasting from the ATC Tower during the lease dispute.8 In the Supplement, Grace adds that “since we filed the [Informal Objection], KPQS has been more or less back on the air since February, 2022.”9 HTM did not file a response to the Informal Objection. 3. On May 11, 2022, the Audio Division, Media Bureau (Bureau) issued a letter of inquiry (LOI) to HTM to clarify the Station’s operation status and history during its most recent license term.10 Specifically, the Bureau directed HTM to provide a chronological description of the Station’s operational status for all periods of operation or silence from July 2, 2015, to the present, including corroborative evidence for any claimed periods of operation.11 4. On June 21, 2022, HTM submitted a response to the LOI (LOI Response). In the LOI Response, HTM certifies that the Station “has continuously been on the air since 2015 except for a brief period of time during January of 2022 when the station experienced transmission problems . . ..”12 HTM confirms ATC’s statement that the Station continued to broadcast throughout the tower lease payment dispute.13 In support of its certification that the Station has operated more or less continuously since 2015, HTM attaches photographs of the KPQS facility, power bill receipts, a copy of the lease agreement, and statements of employees.14 Grace did not respond to the LOI Response. 5. Issues and program lists. During review and processing of the Application, Bureau staff determined that HTM has failed to maintain issues and program lists in the KPQS online public inspection file during the relevant license term, as required by section 73.3526(e)(12) of the Commission’s rules (Rules).15 To resolve the matter of HTM’s apparent violation of the online public inspection file rule, the Bureau and HTM entered into the attached Consent Decree. III. DISCUSSION 6. For the reasons set forth below, we deny the Informal Objection and grant the Application. An informal objection to a license renewal application, like a petition to deny, must provide properly supported allegations of fact that, if true, would establish a substantial and material question of fact that grant of the application would be prima facie inconsistent with section 309(k) of the Act.16 If, upon consideration of a station’s license renewal application and related pleadings, we find that: (1) the station has served the public interest, convenience, and necessity; (2) there have been no serious violations of the Communications Act of 1934, as amended,17 or the Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant the renewal application.18 If, however, the licensee fails to meet that standard, the Commission may deny the 8 Email from Mike Kritzman, Vice President, Broadcast, American Tower Corporation, to Christine Goepp, Attorney Advisor, Audio Division, Media Bureau, Federal Communications Commission (May 11, 2022) (including photos of the KPQS facility). 9 Supplement at 1. 10 Letter to Hispanic Target Media Inc. from Albert Shuldiner, Chief, Audio Division (May 11, 2022). 11 LOI at 2. 12 LOI Response at 2, Declaration of Francisco San Millan (Millan Declaration) (also stating that KPQS has operated at all times from its licensed site and at its licensed power of 6 kW). 13 LOI Response at 3, Millan Declaration. 14 Id. 15 See 47 CFR § 73.3526(e)(12). 16 See 47 U.S.C § 309(d)-(e); WWOR-TV, Inc., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 n.10 (1990); Area Christian Television, Inc., Memorandum Opinion and Order, 60 R.R.2d 862, 864, para. 6 (1986). 17 See 47 U.S.C. § 151 et seq. 18 47 U.S.C. § 309(k)(1). 2 Federal Communications Commission DA 22-907 application—after notice and opportunity for a hearing under section 309(e) of the Act—or grant the application “on terms and conditions that are appropriate, including a renewal for a term less than the maximum otherwise permitted.”19 7. Application. Grace has not met its burden of demonstrating that grant of the Application would be prima facie inconsistent with section 309(k) of the Act. First, Grace fails to adequately substantiate the disputed claim that the Station was silent for 18 months. Grace merely states that it was unable to pick up the KQRS signal at an undisclosed location in Modesto, using an unidentified receiver, despite attempts to do so “perhaps every week.”20 Grace provides no further documentation or evidence that the Station was silent for a prolonged or continuous period of time. Grace does not attempt to refute HTM’s certification in the LOI Response that KQRS has continuously been on the air since 2015 except for one brief period of silence. Therefore, we rely on HTM’s certification to conclude that the Station has served the public interest, convenience, and necessity with respect to the amount of time it has been on air. We reject Grace’s suggestion that we take into account violations at other stations because doing so would contravene the plain terms of section 309(k), which requires that renewal findings must be made “with respect to that station” only.21 8. However, we find that, as stipulated in the Consent Decree, HTM failed to comply with the online public inspection file requirements set out in section 73.3526 of the Rules (Section 73.3526)22 because it failed to place issues and program lists in its online public inspection file.23 Therefore, pursuant to section 309(k)(2) of the Act, we grant the Application subject to the terms of the attached Consent Decree, in which HTM commits to implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations (Compliance Plan). The Compliance Plan will afford the Commission an opportunity to review the Station’s public service performance, as well as compliance with the Act and the Rules, and to take whatever corrective actions, if any, that may be warranted at that time. 9. Consent Decree. We adopt the attached Consent Decree negotiated and entered into by the Bureau and Licensee. We find, and HTM stipulates, that it failed to timely file the requisite issues and programs lists during the Station’s license term and thus did not comply with its public file obligations under Section 73.3526. By the terms of the Consent Decree, HTM agrees, among other things, to implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations. It further commits to submit, within one year after entering into the Consent Decree, a compliance report to the Audio Division. After reviewing the terms of the Consent Decree, we find that the public interest will be served by its approval and by terminating all pending proceedings relating to the Bureau’s investigation into this matter. 10. Based on the record before us, we conclude that nothing in that record creates a substantial and material question of fact as to whether HTM possesses the basic qualifications to be a Commission licensee. IV. CONCLUSION/ACTION 11. ACCORDINGLY, IT IS ORDERED that the informal objection filed by Grace Orthodox Presbyterian Church of Modesto, California, on January 18, 2022, IS DENIED. 19 47 U.S.C. §§ 309(k)(2), (3). 20 Informal Objection at 2 21 See 47 U.S.C. § 309(k)(1). 22 47 CFR § 73.3526 (setting out the required contents of a broadcast station’s online public file). 23 See 47 CFR § 73.3526(e)(12). 3 Federal Communications Commission DA 22-907 12. IT IS FURTHER ORDERED pursuant to sections 4(i), 4(j) and 503(b) of the Communications Act of 1934, as amended,24 and by the authority delegated by sections 0.61 and 0.283 of the Commission’s rules,25 the Consent Decree attached hereto IS ADOPTED without change, addition or modification. 13. IT IS FURTHER ORDERED that the investigation by the Media Bureau of the matters noted above IS TERMINATED. 14. IT IS FURTHER ORDERED that the license renewal application (Application File No. 152973) for station KPQS(FM), Waterford, California, filed by Hispanic Target Media Inc. on July 15, 2021, IS GRANTED pursuant to section 309(k)(2) of the Communications Act of 1934, as amended, subject to the terms of the attached Consent Decree.26 15. IT IS FURTHER ORDERED that copies of this Order shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Hispanic Target Media Inc., Attn: Francisco San Millan, 2433 E. Palo Verde Street, Yuma, AZ 85364, and to its counsel, Dan J. Alpert, Esq., 2120 N 21st Road, Arlington, VA 22201. FEDERAL COMMUNICATIONS COMMISSION Albert Shuldiner Chief, Audio Division Media Bureau 24 47 U.S.C. §§ 154(i)6 154(j), and 503(b). 25 47 CFR §§ 0.61, 0.283. 26 47 U.S.C. § 309(k)(2). 4 Federal Communications Commission DA 22-907 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Online Public Inspection Files of ) ) Hispanic Target Media Inc. ) FRN: 0011335098 ) Licensee of Station KPQS(FM) ) Facility ID No. 189480 Waterford, California ) File No. 152973 CONSENT DECREE 1. The Media Bureau of the Federal Communications Commission and Hispanic Target Media Inc. (hereafter “Licensee,” as defined below), by their authorized representatives, hereby enter into this Consent Decree for the purpose of terminating the Media Bureau’s investigation into the Licensee’s compliance with section 73.3526 of the Commission’s rules (Section 73.3526),1 relating to the maintenance of online public inspection files. To resolve this matter, the Licensee agrees to implement a comprehensive Compliance Plan to ensure its future compliance with section 73.3526. V. DEFINITIONS 2. For the purposes of this Consent Decree, the following definitions shall apply: (a) “Act” means the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq. (b) “Adopting Order” means an order of the Bureau adopting the terms of this Consent Decree without change, addition, deletion, or modification. (c) “Bureau” means the Media Bureau of the Commission. (d) “Commission” means the Federal Communications Commission and all of its bureaus and offices. (e) “Covered Employees” means all employees and agents of the Licensee that are responsible for performing, supervising, overseeing, or managing activities related to the maintenance of online public inspection files in accordance with Section 73.3526. (f) “Effective Date” means the date by which both the Bureau and the Licensee have signed the Consent Decree and the Consent Decree will have been adopted by Commission order. (g) “Investigation” means the Bureau’s decision to hold and not process the Licensee’s license renewal application identified in Appendix A due to the noncompliance with its public file obligations. (h) “Licensee” means Hispanic Target Media Inc. and its affiliates, subsidiaries, predecessors-in-interest, and successors-in-interest. (i) “Online Public Inspection File Rule” means 47 CFR § 73.3526. (j) “Parties” means the Licensee and the Bureau, each of which is a “Party.” (k) “Rules” means the Commission’s regulations found in Title 47 of the Code of Federal Regulations. 1 47 CFR § 73.3526. Federal Communications Commission DA 22-907 VI. BACKGROUND 3. Section 73.3526 requires radio station licensees to maintain an online public inspection file and to upload certain documents to the Commission’s public inspection file database throughout the year. It is crucial that stations maintain online public inspection files that are complete and up to date because the information in them directly affects, among other things, the public’s ability to be informed about a station’s compliance with its obligations. 4. The Licensee owns and operates one or more radio stations licensed by the Commission. The Licensee recently filed an application for renewal of radio station licenses. Upon review of these renewal application(s), Bureau staff determined that the Licensee did not comply with the Online Public Inspection File Rule with respect to the application(s) identified in Appendix A. Specifically, Licensee did not maintain online issues/program lists as required by section 73.3526(e)(12) of the Rules.2 Based on the Licensee’s violation of the Online Public Inspection File Rule, the Bureau commenced the Investigation and suspended processing Licensee’s license renewal application. 5. The radio industry is recovering from a recent dramatic reduction in sponsorship revenues which, in turn, placed the industry, including the Licensee, under significant, ongoing financial stress. The Bureau believes that the exceptional circumstances brought about by the industry’s economic situation present a unique situation which, on balance, warrant resolution of the Bureau’s investigation under the terms and conditions described below. VII. TERMS OF AGREEMENT 6. Adopting Order. The provisions of this Consent Decree shall be adopted by the Bureau in a concurrent Adopting Order. 7. Jurisdiction. The Licensee agrees that the Bureau has jurisdiction over it and the matters contained in this Consent Decree and has the authority to enter into and adopt this Consent Decree. 8. Effective Date. The Parties agree that this Consent Decree shall become effective on the Effective Date. As of the Effective Date, the Parties agree that this Consent Decree shall have the same force and effect as any other order of the Commission. 9. Termination of Investigation. In express reliance on the covenants and representations in this Consent Decree and to avoid further expenditure of public resources, the Bureau agrees to terminate the Investigation and to process the Licensee’s pending radio license renewal application identified in Appendix A in the ordinary course. In consideration for such, the Licensee agrees to the terms, conditions, and procedures contained herein. 10. The Bureau agrees that, in the absence of new material evidence, the Bureau will not use the facts developed in this Investigation through the Effective Date, or the existence of this Consent Decree, to institute, on its own motion or in response to any petition to deny or other third-party objection, any new proceeding, formal or informal, or take any action on its own motion against the Licensee concerning the matters that were the subject of the Investigation. However, given the possibility of a future character qualifications assessment for HTM suggested in a 2021 Bureau decision, the Bureau reserves the right to consider this violation as an additional fact in any such future assessment.3 11. Admission of Liability. The Licensee admits for the purpose of this Consent Decree that it failed to timely place records in its online public inspection file, in repeated violation of Section 73.3526. 2 See 47 CFR § 73.3526(e)(12). 3 See 47 CFR § 1.93(b); Hispanic Target Media Inc., Letter Decision, File Nos. BPH-20180917AAI and BPH- 20180910AAD (Dec. 13, 2021). 2 Federal Communications Commission DA 22-907 12. History of Prior Offenses. Pursuant to section 503(b)(2)(E) of the Act, in exercising its forfeiture authority, the Commission may consider, among other things, “any history of prior offenses” by the licensee.4 The Licensee acknowledges that the Commission or its delegated authority may consider the Licensee’s admission of liability in this Consent Decree in proposing any future forfeiture against Licensee in the event the Licensee is determined to have apparently committed a violation of the Act, the Rules, or of any orders of the Commission after the Effective Date, whether related to the online public inspection file and record keeping or otherwise. 13. Compliance Officer. Within 30 calendar days after the Effective Date, the Licensee shall designate a senior manager or outside legal counsel to serve as a Compliance Officer and to discharge the duties set forth below. The Compliance Officer shall report directly to the Licensee’s Chief Executive Officer (or equivalent senior officer/owner) on a regular basis, and shall be responsible for developing, implementing, and administering the Compliance Plan and ensuring that the Licensee complies with the terms and conditions of the Compliance Plan and this Consent Decree. The Compliance Officer shall have specific knowledge of the Online Public Inspection File Rule prior to assuming his/her duties. The Bureau acknowledges that the Compliance Officer, Chief Executive Officer, and/or owner may be the same individual. 14. Compliance Plan. For purposes of settling the matters set forth herein, the Licensee agrees that it shall, within 30 calendar days after the Effective Date, develop and implement a Compliance Plan designed to ensure future compliance with the Online Public Inspection File Rule, and with the terms and conditions of this Consent Decree. The Compliance Plan shall contain, at a minimum, the following elements: a) Compliance Manual. The Compliance Plan shall include a Compliance Manual that is distributed to all Covered Employees. The Licensee may adopt a Compliance Manual that it has prepared internally or one that has been prepared by an outside source, such as a trade association (e.g., the National Association of Broadcasters), another licensee, or a law firm. The Compliance Manual shall: i. thoroughly explain the requirements embodied in the Online Public Inspection File Rule; ii. contain Operating Procedures that Covered Employees must follow to help ensure the Licensee’s compliance with the Online Public Inspection File Rule. The Operating Procedures shall include internal procedures and policies specifically designed to ensure that the Licensee’s stations upload all required information to their online public inspection files in a timely manner and otherwise maintain full, complete, and up to date information therein. The Operating Procedures shall also include a compliance checklist that describes the steps that a Covered Employee must follow to ensure compliance with the Online Public Inspection File Rule; and iii. be periodically reviewed and revised as necessary to ensure that the information set forth therein remains current, complete, accurate, and effective. b) Compliance Training Program. If the Licensee has Covered Employees, the Compliance Plan shall include a Compliance Training Program to provide periodic training to those Covered Employees on complying with the Online Public Inspection File Rule. As part of the compliance training program, Covered Employees shall be advised of the Licensee’s obligation to report any noncompliance with the Online Public Inspection File Rule and shall be instructed on how to disclose noncompliance to the Compliance Officer. All Covered Employees shall receive initial training under the compliance training program within 30 calendar days after the Effective Date, except that any person who becomes a Covered Employee at any time after such initial training is provided shall receive training under the 4 47 U.S.C. § 503(b)(2)(E). 3 Federal Communications Commission DA 22-907 compliance training program within 30 calendar days after the date he or she becomes a Covered Employee. The Licensee shall provide training under the compliance training plan on at least an annual basis and shall periodically review and revise the compliance training program as necessary to ensure that it remains current, complete, and effective. c) Compliance Report. One year after entering into this Consent Decree, the Licensee shall submit a compliance report to the Bureau for each station listed in Appendix A. The compliance report shall contain a certification of the Licensee’s compliance with the Online Public Inspection File Rule during the previous year. The compliance report shall be submitted to the Bureau no later than 30 days after the one-year anniversary of the Effective Date. The Bureau may, within its sole discretion, require the Licensee to submit more frequent or additional compliance reports in accordance with the terms of paragraph 15 below. i. The compliance report shall include a certification by the Compliance Officer stating that the Compliance Officer has personal knowledge that the Licensee: (i) has established and implemented the Compliance Plan; (ii) has utilized the operating procedures since the implementation of the Compliance Plan; and (iii) is not aware of any instances of noncompliance with the terms and conditions of this Consent Decree. ii. The Compliance Officer’s certification shall be accompanied by a statement explaining the basis for such certification and must comply with section 1.16 of the Rules,5 and be subscribed to as true under penalty of perjury in substantially the form set forth therein. iii. If the Compliance Officer is unable to provide the requisite certification, the Compliance Officer shall provide the Bureau with a report detailing the noncompliance, as described below. iv. The compliance report shall be submitted to the Audio Division staff: Alexander Sanjenis (alexander.sanjenis@fcc.gov). 15. Reporting Noncompliance. The Licensee shall, for each station it owns, report any instance of noncompliance with the Online Public Inspection File Rule, and any instance of noncompliance with any applicable terms and conditions of this Consent Decree within 10 calendar days after discovery of such noncompliance. Such reports shall include a detailed explanation of: (i) each such instance of noncompliance; (ii) the steps that the Licensee has taken or will take to remedy such noncompliance, including the schedule on which such actions will be taken; and (iii) the steps that the Licensee has taken or will take to prevent the recurrence of any such noncompliance, including the schedule on which such preventative action will be taken. All reports of noncompliance shall be submitted to the Audio Division staff: Alexander Sanjenis (alexander.sanjenis@fcc.gov). 16. Termination Date. The obligations to which the Licensee is subject pursuant to this Consent Decree shall terminate upon submission of the Compliance Report pursuant to Paragraph 14(c), provided the Bureau is satisfied that the Licensee has demonstrated substantial compliance with its obligations. If the Bureau is not satisfied that the Licensee has demonstrated substantial compliance with its obligations, the Bureau may, within its the sole discretion and authority, extend the termination date of this Consent Decree for up to an additional 24 months. 17. Further Violation(s). The Licensee acknowledges that the Bureau retains the discretion and authority to propose sanctions against the Licensee, including the issuance of notices of apparent liability for forfeitures, for any apparent willful and/or repeated violation by the Licensee of the Online Public Inspection File Rule that occurs during the term of this Consent Decree. 5 47 CFR § 1.16. 4 Federal Communications Commission DA 22-907 18. Waivers. As of the Effective Date, the Licensee waives any and all rights it may have to seek administrative or judicial reconsideration, review, appeal, or stay, or to otherwise challenge or contest the validity of this Consent Decree and the Adopting Order. The Licensee shall retain the right to challenge Commission interpretation of the Consent Decree or any terms contained herein. If either Party (or the United States on behalf of the Commission) brings a judicial action to enforce the terms of the Consent Decree or Adopting Order, neither the Licensee nor the Commission shall contest the validity of the Consent Decree or the Adopting Order, and the Licensee shall waive any statutory right to a trial de novo. The Licensee hereby agrees to waive any claims it may have under the Equal Access to Justice Act6 relating to the matters addressed in this Consent Decree. 19. Severability. The Parties agree that if any of the provisions of the Consent Decree shall be held unenforceable by any court of competent jurisdiction, such unenforceability shall not render unenforceable the entire Consent Decree, but rather the entire Consent Decree shall be construed as if not containing the particular unenforceable provision or provisions, and the rights and obligations of the Parties shall be construed and enforced accordingly. 20. Invalidity. In the event that this Consent Decree in its entirety is rendered invalid by any court of competent jurisdiction, it shall become null and void and may not be used in any manner in any legal proceeding. 21. Subsequent Rule or Order. The Parties agree that if any provision of this Consent Decree conflicts with any subsequent Rule or Order adopted by the Commission (except an order specifically intended to revise the terms of this Consent Decree to which the Licensee does not expressly consent) that provision will be superseded by such Rule or Order. 22. Successors and Assigns. The Licensee agrees that the provisions of this Consent Decree shall be binding on its successors, assigns, and transferees. 23. Final Settlement. The Parties agree and acknowledge that this Consent Decree shall constitute a final settlement between the Parties with respect to the Investigation. 24. Modifications. This Consent Decree cannot be modified without the advance written consent of both Parties. 25. Paragraph Headings. The headings of the paragraphs in this Consent Decree are inserted for convenience only and are not intended to affect the meaning or interpretation of this Consent Decree. 26. Authorized Representative. Each Party represents and warrants to the other that it has full power and authority to enter into this Consent Decree. Each person signing this Consent Decree on behalf of a Party hereby represents that he or she is fully authorized by the Party to execute this Consent Decree and to bind the Party to its terms and conditions. 6 See 5 U.S.C. § 504; 47 CFR §§ 1.1501-1.1530. 5 Federal Communications Commission DA 22-907 27. Counterparts. This Consent Decree may be signed in counterpart (including electronically or by facsimile). Each counterpart, when executed and delivered, shall be an original, and all of the counterparts together shall constitute one and the same fully executed instrument. ______________________________________ Albert Shuldiner Chief, Audio Division ________8/31/2022_____________________ Date _____________________________________ Francisco San Millan Hispanic Target Media Inc. ____________________________________ Date 6 8-29-2022 Federal Communications Commission DA 22-907 Appendix A Station Call Sign Community of License Application for License Renewal File No. KPQS(FM) Waterford, CA 152973 7