*Pages 1--4 from Microsoft Word - 55089.doc* Federal Communications Commission DA 06- 307 Before the Federal Communications Commission Washington, D. C. 20554 In the matter of Tennessee Broadcasting Partners Licensee of WBBJ- TV Jackson, TN ) ) ) ) ) Facility ID No. 65204 NAL/ Acct. No. 0641420031 FRN: 0003828696 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: February 15, 2006 Released: February 17, 2006 By the Chief, Media Bureau: I. INTRODUCTION 1. The Commission, by the Chief, Media Bureau, pursuant to delegated authority, has before it for consideration a license renewal application for the captioned television station in Jackson, Tennessee. We find that Tennessee Broadcasting Partners (Tennessee Broadcasting), the licensee of station WBBJ- TV, willfully and repeatedly violated Section 73.3526( e)( 11)( ii) of the Commission’s Rules (Rules) by failing to place in the station’s public inspection file records concerning compliance with the children’s programming commercial limits. 1 For the reasons set forth below, we find Tennessee Broadcasting apparently liable in the amount of four thousand dollars ($ 4,000) for its violation of Section 73.3526( e)( 11)( ii) of the Rules. II. BACKGROUND 2. In the Children’s Television Act of 1990, Pub. L. No. 101- 437, 104 Stat. 996- 1000, codified at 47 U. S. C. Sections 303a, 303b and 394, Congress directed the Commission to adopt rules, inter alia, limiting the amount of commercial matter that television stations may air during children’s programming, and to consider in its review of television license renewals the extent to which the licensee has complied with such commercial limits. Accordingly, the Commission adopted Section 73.670 of the Rules, which limits the amount of commercial matter which may be aired during children’s programming to 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays. Children’s Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). The commercial limitations became effective on January 1, 1992. Children’s Television Programming, 6 FCC Rcd 5529, 5530 (1991). 3. Moreover, Section 73.3526 of the Rules requires broadcast licensees to maintain a public inspection file containing specific types of information related to station operations. 2 As 1 47 C. F. R. § 73.3526( e)( 11)( ii). 2 See 47 C. F. R. § 73. 3526. 1 Federal Communications Commission DA 06- 307 2 set forth in Section 73.3526( e)( 11)( ii) of the 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 licensee’s certification in its renewal application, of compliance with the children’s television commercial limits. Section 73.3526 also requires licensees to place records concerning commercial limits in the public inspection file 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. 3 4. On March 30, 2005, the licensee filed a license renewal application (FCC Form 303- S) for station WBBJ- TV (File No. BRCT- 20050330ACQ). In response to Section IV, Question 3 of that application, the licensee certified that, during the previous license term, station WBBJ- TV placed in its public inspection file at the appropriate times, the documentation required by Section 73.3526 of the Commission’s Rules. In Exhibit 17, the licensee indicates that all required documents were placed in the public inspection file at the appropriate times, but that in its recent review of the station’s public inspection file, it discovered that the station’s commercial limits certifications for 1998 had been inadvertently removed from the public file. Upon discovering this omission, the licensee asserts, it reviewed its commercial limits records for 1998 and placed the appropriate documentation into the station’s public file. The licensee argues that it has a history of overall compliance and that the reported omissions were not willful. Finally, the licensee requests that the Commission take no action with respect to the missing records. III. DISCUSSION 5. Station WBBJ- TV’s failure to retain in its public inspection file records concerning compliance with the children’s programming commercial limits constitutes a willful and repeated violation of Section 73.3526( e)( 11)( ii). Section 503( b) of the Communications Act of 1934, as amended (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 “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 3 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). 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 Federal Communications Commission DA 06- 307 3 justice may require.” 5 6. 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 establish a base forfeiture amount of $10,000 for public file violations. 6 In this case, the licensee has corrected the violation. On the other hand, records concerning commercial limits for one year were missing from the station’s public inspection file. Considering the record as a whole, we believe that a $4,000 forfeiture is appropriate for the violation in this case. IV. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED that, pursuant to Section 503( b) of the Communications Act of 1934, as amended, and Sections 0.283 and 1.80 of the Commission’s Rules, 7 Tennessee Broadcasting Partners is hereby NOTIFIED of this APPARENT LIABILITY FOR FORFEITURE of four thousand dollars ($ 4,000) for willful and repeated violations of Section 73.3526( e)( 11)( ii) of the Commission’s Rules. 8 8. 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, Tennessee Broadcasting Partners 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 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 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. 7 47 C. F. R. §§ 0.283 and 1.80. 8 47 C. F. R. § 73.3526( e)( 11)( ii). 9 See 47 C. F. R. § 1.1914. 3 Federal Communications Commission DA 06- 307 4 9. Finally, IT IS FURTHER ORDERED that, a copy of this Notice shall be sent by First Class and Certified Mail, Return Receipt Requested to the licensee at Tennessee Broadcasting Partners, c/ o Brooks, Pierce, McLendon, Humphrey & Leonard LLP, P. O. Box 1800, Raleigh, NC 27602, and to its counsel, Coe W. Ramsey, Esquire, Brooks, Pierce, McLendon, Humphrey & Leonard LLP, P. O. Box 1800, Raleigh, NC 27602. FEDERAL COMMUNICATIONS COMMISSION Donna C. Gregg Chief, Media Bureau 4