*Pages 1--4 from Microsoft Word - 53955.doc* Federal Communications Commission Washington, D. C. 20554 December 23, 2005 DA 05- 3283 Released: December 23, 2005 CERTIFIED MAIL – RETURN RECEIPT REQUESTED Televicentro of Puerto Rico, LLC WAPA- TV c/ o LIN Television Corporation 4 Richmond Square Providence, RI 02906 Re: Televicentro of Puerto Rico, LLC WAPA- TV, San Juan, PR Facility ID No. 52073 File No. BRCT- 20041001AVO NAL/ Acct. No. 0641420023 FRN: 0004343323 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of four thousand dollars ($ 4,000) 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 television broadcast licensee to publicize the existence and location of the Children’s Television Programming Reports. Under the Commission’s rules implementing the Children’s Television Act of 1990 (CTA), 1 each television broadcast station licensee has an obligation, during its license term, to air programming that serves the educational and informational needs of children through both the licensee’s overall programming and programming “specifically designed” to educate and inform children (core programming). 2 The Commission’s rules require commercial licensees to provide information to the public about the shows they air to fulfill their obligation. Section 73.3526( e)( 11)( iii) of the Rules requires each commercial television broadcast station to prepare and place in its public inspection file a Children’s Television Programming Report for each calendar quarter reflecting, inter alia, the efforts it has made during the quarter to serve the educational needs of children. As set forth in Section 73.3526( e)( 11)( iii), licensees are also 1 Pub. L. No. 101- 437, 104 Stat. 996- 1000, codified at 47 U. S. C. Sections 303a, 303b and 394. 2 47 C. F. R. § 73.671. 1 2 required to file the reports with the Commission and to publicize for the public the existence and location of the reports. Section 73.3526( e)( 5) of the Rules also requires each licensee of a commercial broadcast station to place in the public inspection file for its station, a copy of the most recent, complete ownership report (FCC Form 323) filed with the Commission. On October 1, 2004, you filed a license renewal application (FCC Form 303- S) for station WAPA- TV, San Juan, Puerto Rico (File No. BRCT- 20041001AVO). In response to Section IV, Question 10 of that application, you certified that, station WAPA- TV failed to publicize the existence and location of the station’s Children’s Television Programming Reports, as set forth in Section 73.3526( e)( 11)( iii) of the Rules. In Exhibit 24 to station WAPA- TV’s renewal application, you indicated that the licensee discovered that the station did not publicize the existence and location of its Children’s Television Programming Reports following the acquisition of the station in September 1999. 3 Moreover, you claim that the licensee took corrective measures in September 2004. In addition, in Exhibit 17 to station WAPA- TV’s renewal application, you indicated that its most recent Biennial Ownership Reports, filed with the Commission in October 2003 were not placed in the station’s public file in a timely manner. You also indicated that copies of these reports have been placed in station WAPA- TV’s public file. WAPA- TV’s failure to publicize the existence and location of the station’s Children’s Television Programming Reports after Televicentro acquired the license for the station constitutes a willful and repeated violation of Section 73.3526( e)( 11)( iii). While the licensee may have belatedly implemented policies and procedures to prevent subsequent violations, that does not relieve it of liability for the violations which have occurred. International Broadcasting Corp., 19 FCC 2d 793 (1969). Section 503( b) of 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. 4 In determining the appropriate forfeiture amount, we must consider the factors enumerated in Section 503( b)( 2)( D) of the Act, including 3 On September 10, 1999, the Commission granted an application to assign the license for station WAPA- TV from Pegasus Broadcasting of San Juan, LLC to Televicentro (BALCT- 19990830IA). That assignment transaction was consummated on October 19, 1999. 4 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). 2 3 “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.” 5 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 Rules set a base forfeiture amount of $10,000 for public file violations. As explained above, the licensee has failed to comply with Section 73.3526( e)( 11)( iii) of the Rules. We note also that this violation apparently continued for approximately five years of the license term. Based on the record before us, we believe that a $4,000 forfeiture is appropriate for the licensee’s apparent violation of Section 73.3526( e)( 11)( iii). With respect to the Biennial Ownership Reports that you indicate were not placed in the public file in at the appropriate time, we remind you to place these forms in the public file in a timely manner. In evaluating an application for license renewal, the Commission’s decision is governed by Section 309( k) of the Act. 6 Section 309( k) provides that if, upon consideration of the application and pleadings, we find that (1) the station has served the public interest, convenience, and necessity; (2) there have been no serious violations of the Communications Act or the Commission’s Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant the renewal application. 7 If, however, the licensee fails to meet that standard, the Commission may deny the application – after notice and opportunity for a hearing under Section 309( e) of the Act – or grant the application “on terms and conditions that are appropriate, including a renewal for a term less than the maximum otherwise permitted.” 8 On balance, we find that WAPA- TV’s violation of Section 73.3526 does not constitute a “serious violation” of the Commission’s rules warranting designation for evidentiary hearing. Moreover, we find no evidence of violations that, when considered together, evidence a pattern of abuse. Further, we find that station WAPA- TV served the public interest, convenience, and necessity during the subject license term. We will therefore grant the license renewal application below. Accordingly, IT IS ORDERED that, pursuant to Section 503( b) of the Act, and Sections 0.283 and 1.80 of the Rules, Televicentro of Puerto Rico, LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of four thousand dollars ($ 4,000) for willful and repeated violations of Section 73.3526( e)( 11)( iii) of the Rules. 5 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). 6 47 U. S. C. § 309( k). 7 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). 8 47 U. S. C. §§ 309( k)( 2), 309( k)( 3). 3 4 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, Televicentro of Puerto Rico, LLC 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 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. 9 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 Televicentro of Puerto Rico, LLC at the address listed above, and to Margaret L. Tobey, Esquire, Morrison & Foerster LLP, 2000 Pennsylvania Avenue, N. W., Suite 5500, Washington, D. C. 20006. Finally, IT IS ORDERED that, the application (File No. BRCT- 20041001AVO) of Televicentro of Puerto Rico, LLC for renewal of license for station WAPA- TV, San Juan, Puerto Rico, IS GRANTED. Sincerely, Donna C. Gregg Chief, Media Bureau 9 See 47 C. F. R. § 1.1914. 4