Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | File No. EB-00-IH-0160       |
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| **EL MUNDO BROADCASTING          | ) | TH                           |
| CORPORATION**                    | * |                              |
|                                  | * | NAL/Acct. No. 200132080002   |
| Licensee of Stations             |   |                              |
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| WKAQ-AM, San Juan, Puerto Rico   | * |                              |
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| WUKQ-AM, Ponce, Puerto Rico      | * |                              |
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NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: October 23, 2000 Released: October 24, 2000**

By the Chief, Enforcement Bureau:

# Introduction

1.  In this Notice of Apparent Liability for Forfeiture, we find that El
    Mundo Broadcasting Corp. ("El Mundo") has apparently violated
    Section 73.1206 of the Commission's rules, 47 C.F.R. § 73.1206, by
    recording and broadcasting a telephone conversation without first
    informing the party to the conversation of its intention to do so.
    We conclude that El Mundo is apparently liable for a forfeiture in
    the amount of six thousand dollars (\$6,000).

# Background

2.  On June 19, 2000, the Commission received a complaint from Mr.
    Bernardo Vazquez-Santos. Mr. Vazquez-Santos alleged that, on May 8,
    2000, Mr. Luis Francisco Ojeda, an on-air personality for El Mundo's
    WKAQ-AM, called the Office of the Legal Counsel for the Governor of
    Puerto Rico, where Mr. Vazquez-Santos serves as Legal Counsel to the
    Governor. According to the transcript submitted with the
    complaint[^1], the following exchange took place:

    **Secretary**: Legal Counsel.

    **Luis Francisco Ojeda (LFO):** Yes, good afternoon, (sic) with
    attorney Bernardo Vazquez-Santos.

    **Secretary**: Who's calling him?

    **LFO**: From WKAQ, from the newsroom.

    **Secretary**: Don't go (hold on).

    **LFO**: Uh jum. (sic)

    **Mr. Bernardo Vazquez-Santos (BVS):** Hello.

    **LFO**: Attorney Vazquez-Santos?

    **BVS**: To serve you.

    **LFO**: Good afternoon. This is Ojeda from WKAQ.

    **BVS**: Ah, how are you?[^2]

    The transcript indicates that Mr. Ojeda then engaged Mr.
    Vazquez-Santos in a discussion about allegations that Mr.
    Vazquez-Santos had used a facsimile machine in the Office of Legal
    Counsel to send invitations to various government agency heads for a
    cocktail party fundraiser in honor of the wife of a Puerto Rican
    gubernatorial candidate. Mr. Vazquez-Santos also alleges that, on
    May 8, 2000, El Mundo broadcast portions of this conversation on two
    separate occasions on multiple broadcast stations.

3.  On July 18, 2000, the Investigations and Hearings Division,
    Enforcement Bureau, sent El Mundo a letter of inquiry regarding the
    complaint. In its August 3, 2000 response, El Mundo states that it
    broadcast a conversation with Mr. Vazquez-Santos on May 8, 2000 two
    separate times without informing him of its intention to record and
    broadcast the conversation.[^3] *See* Letter Dated August 3, 2000
    from Huberto E. Biaggi, Executive Vice President & General Manager,
    El Mundo Broadcasting Corporation (El Mundo Response), p. 1.

# 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 the
    conversation is being or likely will be broadcast. The Commission
    clearly intended this rule to protect the called party to the
    conversation[^4] and warned licensees that Section 73.1206 requires
    the licensee to inform the other party that the conversation will be
    recorded for broadcast purposes before a telephone conversation is
    recorded for later broadcast.[^5]

5.  El Mundo admits that, on May 8, 2000, it broadcast the conversation
    referenced in the complaint on four stations at 4:34 p.m. and 5:15
    p.m. El Mundo also admits that Mr. Ojeda did not inform Mr.
    Vazquez-Santos prior to the recording of the conversation that he
    intended to broadcast the conversation. However, El Mundo claims
    that, while Mr. Vazquez-Santos was not told that the conversation
    would be recorded or broadcast, he should have presumed that El
    Mundo would record and broadcast the conversation. According to El
    Mundo, Mr. Ojeda is a recognized on-air personality in Puerto Rico
    known for reporting on the activities of the Puerto Rican
    government. Because, according to El Mundo, Mr. Vazquez-Santos was
    "familiar with" Mr. Ojeda, El Mundo assumed Mr. Vazquez-Santos would
    know that the conversation would likely be recorded and broadcast.
    Despite its admission that it did not inform Mr. Vazquez-Santos of
    its intention to record and broadcast this conversation, El Mundo
    apparently argues that because Mr. Vazquez-Santos should have
    presumed his conversation with Mr. Ojeda was going to be recorded
    and broadcast, El Mundo did not violate Section 73.1206 of the
    Commission's rules.

6.  We reject El Mundo's argument. El Mundo concedes in its response
    that Section 73.1206 of the Commission's rules requires licensees to
    notify a party to a conversation of the licensee's intention to
    broadcast the conversation before it commences recording. However,
    it also asks the Commission to recognize an exception, absent in the
    Commission's rules, that a licensee may fail to inform a party to a
    conversation of the licensee's intention to record and broadcast the
    conversation where the on-air personality is well known and the
    other party is a government official.

7.  We decline to find that such an exception exists in the Commission's
    rules. In Section 73.1206, a licensee may fail to inform a party of
    the licensee's intention to broadcast a conversation only where the
    party is "aware or may be presumed to be aware from the
    circumstances of the conversation" that the conversation likely will
    be broadcast. The licensee may make such a presumption only when the
    party to the call is "associated with the station," such as an
    employee or part-time reporter, or when the party originates the
    call and it is obvious that the call is "in connection with a
    program in which the station customarily broadcasts telephone
    conversations." We find that neither of these exceptions is present
    in this case. First, the parties do not dispute that Mr.
    Vazquez-Santos is employed by the Governor of Puerto Rico and
    therefore not affiliated with or employed by the licensee.[^6]
    Additionally, the transcript indicates that Mr. Ojeda originated the
    phone call to the Office of Legal Counsel and asked to speak with
    Mr. Vazquez-Santos. El Mundo, in its response, does not dispute the
    transcript or this apparent fact.

8.  Since we find that the exception El Mundo seeks is not viable and
    neither of the other exceptions to Section 73.1206 applies, we
    cannot find that El Mundo was excused from informing Mr.
    Vazquez-Santos of its intention to record and broadcast the
    conversation. The record demonstrates that El Mundo never told Mr.
    Vazquez-Santos that it intended to record and broadcast the
    conversation on May 8, 2000 and that it recorded and broadcast this
    conversation over four stations and on two different occasions. We
    thus conclude that El Mundo apparently violated Section 73.1206 of
    the Commission's rules.

9.  Section 503(b) of the Communications Act, 47 U.S.C. § 503(b), and
    Section 1.80(a) of the Commission's rules, 47 C.F.R. § 1.80(a), each
    state that any person who willfully or repeatedly fails to comply
    with the provisions of the Communications Act or the Commission's
    rules shall be liable for a forfeiture penalty. For purposes of
    Section 503(b) of the Communications Act, the term "willful" means
    that the violator knew it was taking the action in question,
    irrespective of any intent to violate the Commission's rules. *See
    Southern California Broadcasting Co.*, 6 FCC Rcd 4387 (1991). In
    addition, a violation is "repeated" if it occurs more than once.
    *Id.* at 4388.

10. Based on the evidence before us, we find that El Mundo broadcast a
    recorded telephone conversation on two occasions over four stations
    on May 8, 2000, in apparent willful and repeated violation of
    Section 73.1206 of the Commission's rules. The Commission's
    Forfeiture Policy Statement sets a base forfeiture amount of \$4,000
    for the unauthorized broadcast of a telephone conversation. *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Commission's Rules*, 12 FCC Rcd 17087 (1997), *recon.
    denied* FCC 99-407 (released December 28, 1999). We have reviewed El
    Mundo's response to our letter of inquiry in which it admits that it
    recorded and later broadcast the conversation two times over
    multiple stations. Since the two different broadcasts originated
    from one recorded conversation, we decline to adjust the forfeiture
    amount based on the muliple broadcasts.[^7] However, since the
    conversation was broadcast over two separate stations for which El
    Mundo was the licensee, we apply an upward adjustment of \$2,000 to
    the base forfeirture amount. In total, based on all of the evidence
    before us, we find that El Mundo is apparently liable for a
    forfeiture in the amount of six thousand dollars (\$6,000).

# Ordering clauses

11. ACCORDINGLY, IT IS ORDERED pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 503(b), and
    Sections 0.111, 0.311 and 1.80 of the Commission's rules, 47 C.F.R.
    §§ 0.111, 0.311 and 1.80, that El Mundo Broadcasting Corp. is hereby
    NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
    six thousand dollars (\$6,000) for willfully violating Section
    73.1206 of the Commission's rules, 47 C.F.R. § 73.1206.

12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    rules, that within thirty days of the release of this Notice, El
    Mundo 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.

13. Payment of the forfeiture 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 should note the NAL/Acct. No. referenced
    above.

14. 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 DC 20554 and MUST INCLUDE the file number listed above.

15. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    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
    petitioner'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.

16. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief, Credit
    and Debt Management Center, 445 12th Street, S.W., Washington,
    D.C. 20554. *See* 47 C.F.R. § 1.1914.

17. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Huberto E. Biaggi,
    Executive Vice President and General Manager, El Mundo Broadcasting
    Corporation, P.O. Box 364668, San Juan, Puerto Rico, 00936-4668.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: Transcript of "Ojeda Sin Limite" Radio Broadcast" (Attached as
    Exhibit to Complaint). The transcript is a translation from Spanish
    to English done by Mr. Vazquez-Santos. In addition, Mr.
    Vazquez-Santos enclosed tape recordings in Spanish of the two
    separate broadcasts.

[^2]: *See* Transcript, p. 1.

[^3]: El Mundo broadcast the recorded conversation over the following
    stations: WKAQ-AM, San Juan, WKJB-AM, Mayaguez, WUKQ-AM, Ponce, and
    WABA, Aguadilla. El Mundo is the licensee for WKAQ-AM, San Juan and
    WUKQ-AM, Ponce.

[^4]: *See Amendment of Section 73.1206: Broadcast of Telephone
    Conversations (Report and Order)*, 3 FCC Rcd 5461, 5463 (1988).

[^5]: *Station-Initiated Telephone Calls Which Fail to Comply with
    Section 73.1206 of the Rules*, 24 RR 2d 1814 (1972).

[^6]: *See* Complaint ¶ 1 and El Mundo Response ¶ 3b.

[^7]: *See Noble Broadcast Licensees, Inc.*, Notice of Apparent
    Liability for Forfeiture, 15 FCC Rcd 8530 (EB 2000) and *Nassau
    Broadcasting Partners, Inc.*, Notice of Apparent Liability for
    Forfeiture, 15 FCC Rcd 1367 (EB 1999).