One month ago, RBR+TVBR shared the news that the FCC’s Administrative Law Judge ordered Antonio Cesar Guel, the former President of a Spanish-language broadcast television ministry, to pay hundreds of thousands of dollars in fines for all but ignoring his regulatory obligations while overseeing seven low-power TV stations across the U.S.
Attorney Dan J. Alpert is prepared to submit documentation that Guel is unable to pay. For acting Enforcement Bureau Brief Patrick Webre, the fine some may say is big is far smaller than what he believes should be handed out.
The matter involving Guel and LPTV licensee Jenifer Juarez dates to August 2023. At that time, then-FCC Media Bureau Chief Holly Saurer issued a Hearing Designation Order on the grounds that Guel and Hispanic Christian Community Network were one and the same. Furthermore, Guel was accused of abusing Commission processes, violating FCC rules and participating in a “sham” transaction.
Specifically, Saurer directed Administrative Law Judge Jane Hinckley Halprin to begin a proceeding in which the FCC determined HCCN, Guel and Juarez “lacked candor and/or intentionally misrepresented facts to the Commission,” while violating Commission rules. How so? Juarez is Guel’s niece. And, as Saurer saw it, Guel created “an illusory transaction” of the transfer of control of seven low-power television stations.
The key question regarding Juarez is whether or not she filed an application for the purpose of enabling HCCN or Guel to continue operating and controlling the stations despite non-compliance with the foreign ownership limitations. It turns out that a transfer of the stations to Juarez had been completed, on July 25, 2010. “That submission provided no explanation for the four-year delay in filing the Consummation Notice nor made any reference to the then-pending August assignment filings,” the Media Bureau noted. Then, on November 11, 2014, HCCN filed for bankruptcy protection.
Fast-forward to 2017, when the Bureau received an answer from Juarez about the delinquent consummation notice. In her reply, she explained that Guel financed her purchase of the stations. She also asserted in an affidavit that she controlled the stations since July 2010. However, the signed closing certificates she provided to demonstrate that the parties closed the transaction on July 25, 2020, are not dated.
Juarez further explained that Guel is her uncle and that they had “an understanding” that HCCN would hold the closing papers but not file the requisite consummation notice
until “payments were made for the stations,” but that Juarez would nevertheless operate the stations after the July 25, 2010 closing.
As of August 2023, neither Guel nor Juarez had provided details explaining exactly how Guel “financed” her purchase of the stations or provided any evidence of payments or terms of such financing.
With Guel determined to be the De Facto Licensee of the Juarez-licensed stations, Halprin suggested a $188,491 fine be assessed to Guel.
For Webre, that’s far smaller than what the financial penalty should be, as the Presiding Judge calculated the forfeiture amount as if there were a single violation of section 301 of the Commission’s rules. “Commission precedent indicates that the forfeiture amount should be calculated instead for each of the stations Mr. Guel operated without authorization,” Webre said, citing the 2023 Boundary County TV Translator District forfeiture order and a similar order issued in 2009 to Pikes Peak Community College. “Here, the Initial Decision concludes that Mr. Guel was the de facto licensee of each of the seven Juarez Stations … As such, there were seven stations over which Mr. Guel exercised unauthorized control and thus there were seven violations of section 301. The Bureau submits, therefore, that the proper forfeiture amount should be $1,319,437 — seven times the $188,491 maximum amount allowed for a non-broadcast licensee.”
Getting Guel to pay more than $1.3 million, let alone the $188,491 fine, could be very difficult. In an “exceptions” filing made by Alpert with the Commission, he noted that “no individual specific authority has been delegated to the Office of Administrative Law
Judges to issue initial Orders of Forfeiture in any amount … The matters in this case were designated for hearing by the Media Bureau which, as noted above, itself has a limited right to impose forfeitures of no more than $20,000 under the Commission’s Rules with referral to the full Commission.”
Alpert continues, “[W]hile in this case the Presiding Judge was clearly given the authority to determine whether the issuance of a forfeiture ‘should be issued,’ the Presiding Judge had no authority
delegated to her by either the Media Bureau of the Commission to then determine the amount of the ‘forfeiture.’ Stated otherwise, her determination of the forfeiture amount was beyond the matters or the authority granted in the HDO.”
With Nathan Simington no longer a Commissioner, whether the FCC considers Alpert’s argument and the use of SEC vs. Jarkesy as a means of neutering any delegated authority to issue a financial penalty on an agency rule violator is likely up to Olivia Trusty. FCC Chairman Brendan Carr has not expressed publicly any desire to follow Simington’s lead on the issue. Meanwhile, Webre has taken a decidedly different tune — wanting a stiffer penalty.
The matter now rests with Trusty, Carr and Democratic Commissioner Anna M. Gómez.
