**Before the**

**Federal Communications Commission**

**Washington, DC 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. EB-03-IH-0037       |
|                                  | *) |                              |
| **UNIVISION RADIO LICENSE**      | ** | NAL Account No. 200532080008 |
|                                  |    |                              |
| **CORPORATION**                  | *  | FRN No. 0004946141           |
|                                  | *) |                              |
| Licensee of Stations             | ** | Facility ID No. 19532        |
|                                  |    |                              |
| KVVF(FM), Santa Clara,           | *  | Facility ID No. 31716        |
| California[^1]                   | *) |                              |
|                                  | ** | Facility ID No. 59422        |
| KZOL(FM), North Fork, California |    |                              |
|                                  | *  | Facility ID No. 29021        |
| KHOT-FM, Paradise Valley,        | *) |                              |
| Arizona                          | ** | Facility ID No. 65310        |
|                                  |    |                              |
| KHOV-FM, Wickenburg, Arizona     | *  | NAL Account No. 20053208000  |
|                                  | *) |                              |
| KLNT(FM), Houston, Texas         | ** | FRN No. 0004945911           |
|                                  |    |                              |
| **TICHENOR LICENSE CORPORATION** | *  | Facility ID No. 6662         |
|                                  | *) |                              |
| Licensee of Stations             | ** | Facility ID No. 67071        |
|                                  |    |                              |
| KGBT-FM, McAllen, Texas          | *  |                              |
|                                  | *) |                              |
| KROM(FM), San Antonio, Texas     | ** |                              |
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+----------------------------------+----+------------------------------+

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: January 11, 2005 Released: January 12, 2005**

By the Commission:

# INTRODUCTION

1\. In this *Notice of Apparent Liability for Forfeiture*, issued
pursuant to section 503(b) of the Communications Act of 1934, as amended
(the "Act"), and section 1.80 of the Commission's rules,[^2] we find
that Univision Radio License Corporation ("Univision Radio License) and
Tichenor License Corporation ("Tichenor License"), licensees of the
above-captioned stations, apparently violated section 73.1206 of the
Commission's rules, 47 C.F.R. § 73.1206, by broadcasting a telephone
conversation without first informing the party to the conversation of
its intention to do so.[^3] Based on our review of the facts and
circumstances, we find Univision Radio License and Tichenor License
apparently liable for an aggregate monetary forfeiture in the amount of
\$28,000.00.

# II. background {#ii.-background .unnumbered}

2.  The complainant alleges that on October 18, 2002, several stations
    broadcast a telephone conversation between Raul Brindis, host of the
    "Raul Brindis and Pepito Show," and the complainant, without
    notifying the complainant of their intention to do so.[^4] The
    telephone conversation was apparently an on-air joke performed on
    the complainant. The complainant worked as an Account Executive at
    Hispanic Broadcasting Corporation ("HBC"), the parent corporation of
    the above-captioned licensees at the time of the incident. According
    to a transcript attached to the complaint, in an attempt to play a
    joke, Mr. Brindis called the complainant's cell phone and pretended
    to be another man who had met the complainant at a local club. After
    flirtatious conversation, Mr. Brindis revealed the joke to the
    complainant on the air.

3.  The Enforcement Bureau issued letters of inquiry ("LOI") along with
    a recording of the broadcast supplied by the complainant.[^5]
    Counsel for Univision Communications, Inc. ("Univision"), the new
    ultimate corporate parent of the licensees, filed a consolidated
    response, acknowledging that the licensees of the above-captioned
    stations aired the conversation at issue.[^6] Univision argues,
    however, that the complainant was an employee of HBC and, therefore,
    the licensees were under no obligation to notify him that the
    conversation would be broadcast. [^7] Univision further contends
    that it should not be held responsible for the acts of the licensees
    since it was not the ultimate parent at the time of the
    broadcast.[^8] Finally, Univision states that the incident was a
    single, isolated event; that such programming does not meet its
    programming standards; and that, as a result of this incident, it
    has put into place a compliance plan at its licensee
    subsidiaries.[^9]

**III. DISCUSSION**

4.  Section 73.1206 of the Commission's rules provides that, before
    recording a telephone conversation for broadcast, or broadcasting
    such a conversation simultaneously with its occurrence, a licensee
    shall inform any party to the call of its intention to broadcast the
    conversation, except where such party is aware, or may be presumed
    to be aware from the circumstances of the conversation, that it is
    being or likely will be broadcast. Univision admits that the
    above-captioned stations broadcast the telephone conversation
    between Raul Brindis and the complainant on October 18, 2002, and
    that it did not inform the complainant of its intent to do so until
    broadcasting had already begun.

5.  We find unpersuasive Univision's argument that the complainant's
    position as an Account Executive at HBC relieved the stations of
    their responsibility to inform the complainant of their intent to
    broadcast the conversation. Univision argues that "\[u\]nder section
    73.1206 of the Commission's rules, prior consent to broadcast a
    conversation is presumed where 'the party to the call is associated
    with the station (such as an employee or part-time
    reporter)....'"[^10] Thus, under Univision's reasoning, by agreeing
    to work at HBC the complainant - as well as each and every employee
    at the company from the CEO to the cleaning crew -- implicitly
    consented to having conversations aired without prior notice. We do
    not think the presumption language in section 73.1206 is that broad.
    The language of the rule focuses on persons "associated with the
    station (such as employees or part-time reporters)"[^11], not on all
    employees of the licensee and its affiliates and the parent company.
    Moreover, in adopting the presumption, the Commission focused on
    "conversations between employees at the station and station
    reporters."[^12] Thus, contrary to Univision's suggestion, the
    Commission did not intend to apply the presumption against required
    prior notice to every employee of a broadcast licensee or its
    affiliates, but only to those who participate in "open mike" shows,
    phone in news stories, or perform similar duties.[^13] The
    Commission referred to these scenarios as situations in which "the
    parties do not presume the conversation to be private and 'consent
    by implication' to the broadcast then or later."[^14] We further
    conclude that the complainant could not reasonably have been aware
    that this telephone conversation would be broadcast. The show's host
    lied about his identity, called the complainant's private cell
    phone, and discussed topics of a highly personal nature that one
    would not expect to be broadcast. Therefore, we believe that it is
    clear that the presumption in section 73.1206 was not intended to
    apply in this circumstance.

6.  We reject Univision's argument that an intervening transfer of
    control precludes a finding of apparent liability.[^15] As the
    Commission has stated previously "\[t\]he transfer of control of
    stock of the licensee corporation subsequent to violations does not
    excuse the licensee for the violation."[^16] Moreover, as the
    Commission has noted when presented with similar issues in the past,
    section 503(b) of the Act authorizes the Commission to impose
    forfeitures upon any person who willfully violates the Act or our
    rules.[^17] That section also requires us to take into account, with
    respect to the violator, its degree of culpability, history of prior
    offenses, ability to pay, and such other matters as justice may
    require. 47 U.S.C. §503(b)(2)(D). Based on the facts before us, it
    appears that the licensee may have willfully violated section
    73.1206 and that forfeiture is warranted. The fact that the
    ownership of the licensee's parent company changed hands does not
    affect the licensee's liability. Finally, although Univision's
    compliance plan is a helpful first step in preventing any future
    violations of section 73.1206, it does not absolve the licensees' of
    their liability for the violations here.[^18]

7.  Having determined that Univision Radio License and Tichenor License
    apparently willfully and/or repeatedly violated section 73.1206 of
    the Commission's rules, we turn to an analysis of whether, and to
    what extent, we should propose sanctions in this instance. The
    Commission's forfeiture guidelines establish a base forfeiture
    amount of \$4,000.00 for the unauthorized broadcast of a telephone
    conversation,[^19] and provide that base forfeitures may be adjusted
    based upon consideration of the factors enumerated in section
    503(b)(2)(D) of the Act,[^20] and section 1.80(a)(4) of the
    Commission's rules,[^21] which include "the nature, circumstances,
    extent, and gravity of the violation . . . and the degree of
    culpability, any history of prior offenses, ability to pay, and such
    other matters as justice may require."[^22] Based upon the facts and
    circumstances presented here, including the fact that the single
    violation of section 73.1206 was aired simultaneously at seven
    stations, we find the base forfeiture amount of \$4000.00 per
    station for a collective forfeiture amount of \$28,000.00 to be
    appropriate.

# ORDERING CLAUSES

8\. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 503(b) of the
Communications Act of 1934, as amended, Univision Radio License
Corporation and Tichenor License Corporation, are hereby NOTIFIED of
their APPARENT LIABILITY FOR A FORFEITURE of \$28,000.00, or \$4,000.00
per station for apparently willfully violating section 73.1206 of the
Commission's rules on October 18, 2002 at the above captioned seven FM
broadcast stations.

9\. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the rules,
Univision Radio License Corporation and Tichenor License Corporation
SHALL PAY the full amount of the proposed forfeiture within thirty (30)
days of the release of this Notice, or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.

10\. Payment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission.  The payment must include the NAL/Acct. No. and FRN No.
referenced above.  Payment by  check or money order may be mailed to
Forfeiture Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.  Payment by
overnight mail may be sent to Bank One/LB 73482, 525 West Monroe, 8th
Floor Mailroom, Chicago, IL 60661.   Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and account
number 1165259.

11\. The response, if any, must be mailed to William H. Davenport,
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C330,
Washington, D.C. 20554 and MUST INCLUDE the NAL/Acct. No. referenced
above.

12\. 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 submitted.

13\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.[^23]

14\. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail - Return Receipt Requested to
Lawrence N. Cohn, Esq., 1920 N Street, N.W. Washington, DC 20036-1622,
and R. Michael Lieberman, Esq., 1398 Post Street, San Francisco, CA.
94109.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

[^1]: On September 13, 2004 the Commission granted Univision Radio
    License Corporation's request to change the call sign of Station
    KEMR(FM) to KVVF(FM).

[^2]: 47 U.S.C. § 503; 47 C.F.R. § 1.80.

[^3]: 47 C.F.R. § 73.1206.

[^4]: *See* Letter from R. Michael Lieberman, Esq., to the
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, dated January 30, 2003.

[^5]: *See* Letter from Maureen F. Del Duca, Chief, Investigations and
    Hearings Division, Enforcement Bureau, Federal Communications
    Commission to HBC Media, Inc., dated November 25, 2003.

[^6]: *See* Letter from Lawrence N. Cohn, Esq., to Maureen F. Del Duca,
    Chief, Investigations and Hearing Division, Enforcement Bureau,
    Federal Communications Commission, dated January 14, 2004 ("LOI
    Response").

[^7]: LOI Response at 6.

[^8]: *Id.* at 2.

[^9]: *Id.* at 3.

[^10]: LOI Response at 6.

[^11]: 47 C.F.R. § 73.1206.

[^12]: *Amendment to Part 73 of the Commission's Rules and Regulations
    with Respect to the Broadcast of Telephone Conversation*, Report and
    Order, 23 FCC 2d 1 (1970).

[^13]: *Id.*at ¶¶ 4, 5.

[^14]: *Id.*at ¶ 4.

[^15]: In letters dated March 8, 2004, HBC License Corporation and HBC
    Houston License Corporation notified the Commission of a name
    change. Pursuant to an amendment to the Articles of Incorporation,
    HBC License Corporation and HBC Houston License Corporation changed
    their legal names to Univision Radio License Corporation. We have
    listed in the caption the official name of the licensee of the five
    stations, but our analysis is otherwise unaffected.

[^16]: *EZ Sacramento, Inc.,* Forfeiture Order, 14 FCC Rcd 13539, 13540
    (Mass Media Bur. 1999), *recon. denied* 15 FCC Rcd 18 257 (Enf. Bur.
    2000), *app. for rev. denied*, 16 FCC Rcd 4958 (2001) (quoting
    *Winslow Communications, Inc.,* 45 FCC 2d 662, 663 (1974)).

[^17]: *EZ Sacramento,* 16 FCC Rcd at 4959. *See also* 47 U.S.C.
    503(b)(1).

[^18]: *See, e.g.,* *AT&T Wireless Services, Inc*., Forfeiture Order, 17
    FCC Rcd 21866, 21870-71 ¶ 26 (2002) (finding that remedial action to
    correct the section 17.50 violation are not a mitigating factor and
    noting that all licensees and Commission regulates are expected to
    promptly take corrective action when violations are brought to their
    attention); *Coleman Enterprises, Inc.,* Forfeiture Order, 15 FCC
    Rcd 24385, 24388 ¶ 8 (2000), *recon. denied*, 16 FCC Rcd 10016
    (2001) (finding that a compliance plan is not a basis to mitigate
    the amount of the forfeiture for numerous slamming violations where
    the NAL had required that the licensee submit a compliance plan
    because of the extent of its misrepresentations to customers);
    *Cumulus Licensing Corp*., Notice of Apparent Liability, 19 FCC Rcd
    2753, 2755-56, ¶ 6 (Enf. Bur. 2004) (finding that subsequent
    reminders to on-air staff of their obligations under section 73.1206
    did not alter fact that a violation had occurred or justify
    mitigation and imposing base forfeiture for a single violation of
    that rule).

[^19]: 47 C.F.R. §1.80(b)(4). *See* *also Commission's Forfeiture Policy
    Statement and Amendment of section 1.80 of the Rules to Incorporate
    the Forfeiture Guidelines,* Memorandum Opinion and Order, 12 FCC Rcd
    17087, 17113 (1997), *recon. denied,* 15 FCC Rcd 303 (1999)
    ("*Forfeiture Policy Statement*").

[^20]: 47 U.S.C. §503(b)(2)(D).

[^21]: 47 C.F.R. §1.80(a)(4).

[^22]: 47 C.F.R. §1.80(b)(4) note. *See also Forfeiture Policy
    Statement,* 12 FCC Rcd at 17100-01.

[^23]: 47 C.F.R. § 1.1914.