*Pages 1--4 from Microsoft Word - 53756.doc* Federal Communications Commission Washington, D. C. 20554 December 16, 2005 DA 05- 3202 Released: December 16, 2005 CERTIFIED MAIL – RETURN RECEIPT REQUESTED Atlantic Media Group, Inc. WWMB( TV) P. O. Box 736 Myrtle Beach, SC 29578 Re: Atlantic Media Group, Inc. WWMB( TV), Florence, SC Facility ID No. 3133 File No. BRCT- 20040730AJM NAL/ Acct. No. 0641420015 FRN: 0003765393 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of ten thousand dollars ($ 10,000) pursuant to Section 503( b) of the Communications Act of 1934, as amended (Act), 47 U. S. C. § 503( b), under authority delegated to the Chief of the Media Bureau by Section 0.283 of the Commission’s Rules (Rules), 47 C. F. R. § 0.283, for willful and repeated violations of the Commission’s rule requiring each commercial broadcast station to place in its public inspection file records concerning compliance with the children’s programming commercial limits. Section 73.3526 of the Commission’s Rules requires broadcast licensees to maintain a public inspection file containing specific types of information related to station operations. 1 As set forth in Section 73.3526( e)( 11)( ii) of the Commission’s Rules, each commercial television broadcast station is required to place in its public inspection file on a quarterly basis, records sufficient to allow substantiation of the station’s certification in its renewal application, of compliance with the children’s television commercial limits. Section 73.3526( e)( 11)( ii) of the Rules also requires licensees to file the records by the tenth day of the succeeding calendar quarter. Where lapses occur in maintaining the public file, neither the negligent acts nor omissions of station employees or agents, nor the subsequent remedial actions undertaken by the licensee, excuse or nullify a licensee’s rule violation. 2 1 See 47 C. F. R. § 73. 3526. 2 See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999) (citing Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970) and Eleven Ten Broadcasting Corp., 33 FCC 706 (1962)); Surrey Range Limited Partnership, 71 RR 2d 882 (FOB 1992). 1 2 On July 30, 2004, you filed a license renewal application (FCC Form 303- S) for station WWMB( TV), Florence, South Carolina (File No. BRCT- 20040730AJM). In response to Section IV, Question 3 of that application, you certify that, during the previous license term, station WWMB( TV) failed to place in its public inspection file at the appropriate times, the documentation required by Section 73.3526 of the Commission’s Rules. In Exhibit 17 of that application, you state that in completing the instant renewal application, the licensee discovered that station WWMB( TV) ’s public inspection file did not contain copies of quarterly certifications regarding compliance with the commercial limits on children’s programming, except for the certifications for 1999. You assert, however, that the licensee complied with the commercial limits throughout the license term. You state that subsequent to a review of its records, the licensee has reconstructed all of the required quarterly certifications and placed them in the station’s public inspection file. You contend that additional safeguards that are now in place will enable the licensee to comply with the Commission’s rule regarding records concerning children’s programming commercial limits during the next license term. Station WWMB( TV) ’s failure to place in its public inspection file the required documentation constitutes a willful and repeated violation of Section 73.3526( e)( 11)( ii). While corrective actions may have been taken to prevent future violations, this does not relieve you of the violations which have occurred. International Broadcasting Corp., 19 FCC 2d 793 (1969). Section 503( b) of the Act provides that any person who willfully or repeatedly fails to comply substantially with the terms and conditions of any license, or willfully fails to comply with any of the provisions of the Act or of any rule, regulation or order issued by the Commission thereunder, shall be liable for a forfeiture penalty. 3 In determining the appropriate forfeiture amount, we must 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.” 4 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80( b) of the Rules to Incorporate the Forfeiture Guidelines (Forfeiture Policy Statement) and Section 1.80 of the 3 47 U. S. C. § 503( b). Section 312( f)( 1) of the Act, 47 U. S. C. § 312( f)( 1), which applies to violations for which forfeitures are assessed under Section 503( b) of the Act, provides that “[ t] he term “willful”, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by the Act . . . .” See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). Section 312( f)( 2) of the Act provides that “[ t] he term “repeated,” when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day.” 47 U. S. C. § 312( f)( 2). 4 47 U. S. C. § 503( b)( 2)( D); see also Forfeiture Policy Statement, 12 FCC Rcd 17087, 17100 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C. F. R. § 1.80( b)( 4). 2 3 Rules establish a base forfeiture amount of $10,000 for public file violations. 5 In this case, the licensee concedes that, with the exception of 1999, the required documentation was missing from the public inspection file throughout the license term. As a result, the public file was not complete for a substantial period of time. Considering the record as a whole, we believe that a $10,000 forfeiture is appropriate for the violation in this case. In evaluating an application for license renewal, the Commission’s decision is governed by Section 309( k) of the Communications Act of 1934, as amended (Act), 47 U. S. C. § 309( k). Section 309( k) provides that if, upon consideration of the application and pleadings, we find that (1) the station has served the public interest, convenience, and necessity; (2) there have been no serious violations of the Communications Act or the Commission’s Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant the renewal application. 6 If, however, the licensee fails to meet that standard, the Commission may deny the application – after notice and opportunity for a hearing under Section 309( e) of the Act – or grant the application “on terms and conditions that are appropriate, including a renewal for a term less than the maximum otherwise permitted.” 7 The public inspection file rule serves the critical function of making available to the public important information related to station operations. On balance, however, we find that WWMB( TV) ’s violation of Section 73.3526 does not constitute a “serious violation” of the Commission’s rules warranting designation for evidentiary hearing. Moreover, we find no evidence of violations that, when considered together, evidence a pattern of abuse. Further, we find that station WWMB( TV) served the public interest, convenience, and necessity during the subject license term. We will therefore grant the license renewal application below. Accordingly, IT IS ORDERED that, pursuant to Section 503( b) of Act, and Sections 0.283 and 1.80 of the Rules, Atlantic Media Group, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($ 10,000) for willful and repeated violations of Section 73.3526( e)( 11)( ii) of the Rules. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission’s Rules, within thirty days of the release date of this Notice of Apparent Liability, Atlantic Media Group, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 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 Federal Communications Commission, at 5 47 C. F. R. § 1. 80( b)( 4), Note to paragraph (b)( 4): Section I. Base Amounts for Section 503 Forfeitures; Forfeiture Policy Statement, 12 FCC Rcd at 17113, Appendix A, Section I. 6 47 U. S. C. § 309( k)( 1). The renewal standard was amended to read as described by Section 204( a) of the Telecommunications Act of 1996, Pub. L. No. 104- 104, 110 Stat. 56 (1996). See Order, Implementation of Sections 204( a) and 204( c) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures), 11 FCC Rcd 6363 (1996). 7 47 U. S. C. §§ 309( k)( 2), 309( k)( 3). 3 4 P. O. Box 358340, Pittsburgh, PA 15251- 8340. Payment by overnight mail may be sent to Mellon Bank/ LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911- 6106. Requests for full payment under the installment plan should be sent to: Chief, Revenue and Receivables Operations Group, 445 12th Street, S. W., Washington, D. C. 20554. 8 IT IS FURTHER ORDERED that, a copy of this Notice of Apparent Liability shall be sent by First Class and Certified Mail, Return Receipt Requested to Albert D. Ervin, President, Atlantic Media Group, Inc. at the address listed above, and to Henry A. Solomon, Esquire, Garvey Schubert Barer, 1000 Potomac Street, N. W., 5 th Floor, Washington, D. C. 20007. Finally, IT IS ORDERED that, the application (File No. BRCT- 20040730AJM) of Atlantic Media Group, Inc. for renewal of license for station WWMB( TV), Florence, South Carolina, IS GRANTED. Sincerely, Donna C. Gregg Chief, Media Bureau 8 See 47 C. F. R. § 1.1914. 4