Before the

[Federal Communications Commission]{.smallcaps}

# Washington, D.C. 20554

In the Matter of ) )

**CONCILIO MISION CRISTIANA** ) File No. EB-01-IH-0304

**FUENTE DE AGUA VIVA, INC.** ) NAL/Acct. No. 200232080017

**Licensee of Station WQHA(TV)** ) FRN 0005-4120-02

**Aquada, Puerto Rico** ) Facility ID# 3255

###### [NOTICE OF APPARENT LIABILITY FOR FORFEITURE]{.underline}

# Adopted: July 1, 2002 Released: July 3, 2002 

By the Chief, Enforcement Bureau:

# I. INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture, we find that
Concilio Mision Cristiana Fuente de Agua Viva, Inc. ("Concilio Mision")
has apparently violated Section 73.1207(b)[^1] of the Commission's
rules, which prohibits a broadcast station from rebroadcasting the
program or any part thereof of another broadcast station, without
obtaining the express, written authority of the originating station.
Based upon our investigation of the facts and circumstances surrounding
this matter, we find that Concilio Mision is apparently liable for a
forfeiture in the amount of one thousand dollars (\$1,000.00).

######## II. BACKGROUND

########  

2\. Station WQHA(TV), Aguada, Puerto Rico, which broadcasts
Spanish-language Christian programming, is licensed to Concilio Mision.
Among its locally originated programming, the station broadcasts a
television program called "El Tribunal Cristiano." WSKN(AM), San Juan,
Puerto Rico, which broadcasts the radio program "Saliendo del Closet,"
is licensed to Madifide, Inc.

3\. On April 9, 2001, the Commission received a complaint from the
producer of "Saliendo del Closet" that Concilio Mision rebroadcast a
portion of "Saliendo del Closet," which was broadcast originally on
WSKN(AM) on November 1, 2000. In a May 11, 2001 letter of inquiry
directed to Concilio Mision, the Bureau inquired whether WQHA(TV)
rebroadcast any portion of the programming of WSKN(AM).[^2] The Bureau
directed that, if applicable, Concilio Mision furnish the Bureau with a
copy of the written consent to rebroadcast the WSKN(AM) programming.

4\. In its response to the letter of inquiry, Concilio Mision admits
that a portion of the "Saliendo del Closet" radio program was aired on
the "El Tribunal Cristiano" television program on two separate
occasions, November 2 and November 6, 2000; however, Concilio Mision
claims it received oral authorization from WSKN(AM).[^3] Concilio Mision
claims that the producer of "El Tribunal Cristiano" contacted an "acting
station officer" for WSKN(AM) by telephone on November 1, 2000, and
requested a recording of the "Saliendo del Closet" program for
rebroadcast on "El Tribunal Cristiano."[^4] Concilio Mision further
claims that the acting station officer for WSKN(AM) orally informed the
producer of "El Tribunal Cristiano" that WSKN(AM) did not make or
distribute such recordings, but the producer of "El Tribunal Cristiano"
could make an off-the-air copy for use on WQHA(TV)'s program.[^5] The
alleged acting station officer for WSKN(AM) denies that he granted the
producer of "El Tribunal Cristiano" oral authorization to rebroadcast a
portion of the "Saliendo del Closet" radio program; denies that he is an
officer of WSKN(AM); denies that he had the authority to grant
permission to rebroadcast a portion of "Saliendo del Closet;" and denies
that a conversation with the "El Tribunal Cristiano" producer occurred
on November 1, 2000.[^6]

5\. Concilio Mision states that it has taken corrective action to
prevent this problem from recurring. Concilio Mision has instituted new
procedures, which now require written authorization from the originating
station before WQHA(TV) rebroadcasts programming initiated on another
broadcast station. The written authorization must come from a management
level employee of the originating station and be acknowledged by the
signature of a management level employee at WQHA(TV).[^7]

III. **DISCUSSION**

6\. Section 73.1207(b) of the rules states as follows:

> No broadcast station may retransmit the program, or any part thereof,
> of another U.S. broadcast station without the express authority of the
> originating station. A copy of the written consent of the licensee
> originating the program must be kept by the licensee of the station
> retransmitting such program and made available to the FCC upon
> request.

*See also* Section 325(a) of the Communications Act of 1934, as amended
("Act").[^8]

7\. Concilio Mision admits it rebroadcast a portion of the "Saliendo del
Closet" radio program on two separate occasions, but claims it was
granted oral consent by WSKN(AM).[^9] Section 73.1207(b) requires that
"written consent" be provided to the Commission upon request. Thus,
consent must be written and oral consent is insufficient.[^10] In its
May 11, 2001 letter of inquiry, the Bureau directed Concilio Mision to
provide a copy of any written consent, but Concilio Mision failed to
provide it. Thus, Concilio Mision apparently violated Section 73.1207(b)
of the Rules.

8\. In light of Concilio Mision's apparent failure to comply with
Section 73.1207(b) of the rules, we find that a proposed forfeiture is
warranted. Section 503(b) of the Act states that any person that
willfully or repeatedly[^11] fails to comply with any provision of the
Act or any rule, regulation, or order issued by the Commission, shall be
liable for a forfeiture penalty.[^12] In determining the appropriate
forfeiture amount, we consider 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."[^13] The Commission's
*Forfeiture Policy Statement*[^14] does not explicitly identify a base
forfeiture amount for violations of section 73.1207(b) of the rules.
However, considering all the facts and circumstances and Commission
precedent, we find that a forfeiture of \$1,000.00 is apparently
warranted.[^15]

**IV. ORDERING CLAUSES**

9\. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 503(b) of the
Act, [^16] and sections 0.111, 0.311 and 1.80 of the rules,[^17]
Concilio Mision Cristiana Fuente de Agua Viva, Inc. is HEREBY NOTIFIED
of its APPARENT LIABILITY FOR FORFEITURE in the amount of one thousand
dollars (\$1,000.00) for willfully and repeatedly violating section
73.1207(b), which prohibits a broadcast station from rebroadcasting the
program or any part thereof of another broadcast station, without
obtaining the express, written authority of the originating station.

10\. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty (30) days of the release date of this
NOTICE OF APPARENT LIABILITY, Concilio Mision Cristiana Fuente de Agua
Viva, Inc. SHALL PAY to the United States the full amount of the
proposed forfeiture OR SHALL FILE a written statement showing why the
proposed forfeiture should not be imposed or should be reduced.

11\. Payment of the forfeiture amount 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 above.

12\. The response, if any, must be mailed to Charles W. Kelley, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12^th^ Street S.W., Room 3-B443,
Washington, D.C., 20554, and must include the "NAL/Acct. No." 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 provided.

14\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Revenues
and Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.[^18]

15\. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
Liability shall be sent by Certified Mail/Return Receipt Requested to
John A. Borsari, Borsari & Associates, 2111 Wilson Blvd., Suite 700,
Arlington, VA 22210, counsel for Concilio Mision Cristiana Fuente de
Agua Viva, Inc.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

####### Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 73.1207(b).

[^2]: May 11, 2001, Letter of Inquiry from Charles Kelley, Chief,
    Investigations & Hearings Division, Enforcement Bureau, to Concilio
    Mision, Television Station WQHA(TV) ("LOI").

[^3]: *See* June 25, 2001, Response to LOI from Colette M. Capretz, Shaw
    Pittman, to Charles Kelley, Chief, Investigations & Hearings
    Division, Enforcement Bureau ("LOI Response").

[^4]: LOI Response at 2.

[^5]: *Id*.

[^6]: See Affidavit of Eusebio ("Machi") Medina Picon, Independent
    Producer of WSKN(AM) at 2.

[^7]: LOI Response at 3.

[^8]: 47 U.S.C. § 325(a).

[^9]: LOI Response at 2.

[^10]: Consent from the producer of "Saliendo del Closet," however, is
    immaterial. Section 73.1207(b) of the rules requires the consent of
    the originating licensee.

[^11]: A party "willfully" violates the Commission's rules when it knows
    it is taking the action in question, irrespective of any intent to
    violate the Commission's rules, and "repeatedly" means more than
    once. *See Southern California Broadcasting Co.,* 6 FCC Rcd 4387,
    4387-88 (1991).

[^12]: 47 U.S.C. § 503(b); *see also* 47 C.F.R. § 1.80(a).

[^13]: 47 U.S.C. § 503(b)(2)(D).

[^14]: ^?^ *The Commission's Forfeiture Policy Statement and Amendment
    of Section 1.80 of the Commission's Rules*, 12 FCC Rcd 17087, 17100
    (1997) ("*Forfeiture Policy Statement*"), *recon. denied*, 15 FCC
    Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4).

[^15]: *E.g.*, *Duchossois Communications Co. of Maryland, Inc.*, 11 FCC
    Rcd 5785 (1996) (\$1,000 NAL for violation of section 73.1207);
    *Matter of Liability of Eli and Harry Daniels, d.b.a., The Heart of
    the Black Hills Stations*, 29 FCC 2d 332 (\$1,000 forfeiture for
    violation of section 73.655, precursor to section 73.1207),
    *application for remission or mitigation denied,* 30 FCC 2d 781
    (1971).

[^16]: 47 U.S.C. § 503(b).

[^17]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.

[^18]: *See* 47 C.F.R. § 1.1914.