*Pages 1--4 from Microsoft Word - 55086.doc* Federal Communications Commission DA 06- 308 Before the Federal Communications Commission Washington, D. C. 20554 In the matter of Springfield Broadcasting Partners Licensee of WCCU( TV) Urbana, IL ) ) ) ) ) Facility ID No. 69544 NAL/ Acct. No. 0641420032 FRN: 0005017900 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 station in Urbana, Illinois. We find that Springfield Broadcasting Partners (Springfield Broadcasting), the licensee of station WCCU( TV) willfully and repeatedly violated Sections 73.3526( e)( 11)( i), 73.3526( e)( ii), and 73.3526( e)( 11)( iii) of the Commission’s Rules (Rules) by failing to place in the station’s public inspection file TV issues/ programs lists, records concerning compliance with the children’s programming commercial limits, and Children’s Television Programming Reports. 1 For the reasons set forth below, we find Springfield Broadcasting apparently liable in the amount of four thousand dollars ($ 4,000) for its violations of Sections 73.3526( e)( 11)( i), 73.3526( e)( 11)( ii), and 73.3526( e)( 11)( iii) 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 1 47 C. F. R. §§ 73. 3526( e)( 11)( i), 73. 3526( e)( 11)( ii), and 73. 3526( e)( 11)( iii). 1 Federal Communications Commission DA 06- 308 2 public inspection file containing specific types of information related to station operations. 2 As set forth in Section 73.3526( e)( 11)( iii) of the Rules, each commercial television broadcast station is required to prepare and place in its public inspection file a Children’s Television Programming Report (FCC Form 398) for each calendar quarter reflecting, inter alia, the efforts it has made during the quarter to serve the educational needs of children. Section 73.3526( e)( 11)( iii) of the Rules also requires commercial television stations to file the reports with the Commission and to publicize the existence and location of the reports. In addition, pursuant to 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. Further, Section 73.3526( e)( 11)( i) provides that a TV issues/ programs list is to be placed in a commercial TV broadcast station’s public inspection file each calendar quarter. Section 73.3526 also requires licensees to place records concerning compliance with the children’s programming commercial limits, Children’s Television Programming Reports, and TV issues/ programs lists for each quarter in the station’s 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 July 28, 2005, the licensee filed a license renewal application (FCC Form 303- S) for station WCCU( TV) (File No. BRCT- 20050728ALU). In response to Section IV, Question 3 of that application, the licensee certified that, during the previous license term, station WCCU( 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 it in its recent review of the public file, it discovered that some of these documents had been inadvertently removed and were missing from the public file. Specifically, it states that the station’s records concerning compliance with the children’s programming commercial limits for the first quarter of 2003 and the fourth quarter of 2004, the Children’s Television Programming Reports for the fourth quarter of 1997 and the second quarter of 2004, and the TV issues/ programs list for the fourth quarter of 1998 were missing from the public file. The licensee claims that upon discovering that these records were missing, it located the missing documents and placed copies in 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. 5. Moreover, in response to Section IV, Question 5 of the renewal application, the licensee certifies that, during the previous license term, station WCCU( TV) failed to comply with the limitations on commercial matter in children’s programming specified in Section 73.670 of the Rules. In Exhibit 19 of that application, the licensee states that station WCCU( TV) exceeded the children’s television commercial limits by 30 seconds on November 24, 1999. The licensee attributes the overage to human error in airing a commercial make- good during a 2 See 47 C. F. R. § 73. 3526. 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). 2 Federal Communications Commission DA 06- 308 3 children’s program, and maintains that station WCCU( TV) took corrective actions to prevent further overages. III. DISCUSSION 6. Station WCCU( TV) ’s failure to retain in its public inspection file the required documentation constitutes a willful and repeated violation of Sections 73.3526( e)( 11)( i)-( iii). 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 justice may require.” 5 7. 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, required documents for five quarters were missing from the public inspection file. Considering the record as a whole, we believe that a $4,000 forfeiture is appropriate for the violations in this case. 7 IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that, pursuant to Section 503( b) of the Act, and Sections 0.283 and 1.80 of the Rules, Springfield Broadcasting Partners is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of four thousand dollars ($ 4,000) for willful and repeated violations of Section 73.3526( e)( 11)( i)-( iii) of the Rules. 9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission’s 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). 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 It appears from the information before us that the overage in question was an isolated and inadvertent violation of Section 73. 670 of the Rules and, as such, does not warrant further Commission action. 3 Federal Communications Commission DA 06- 308 4 Rules, within thirty days of the release date of this Notice of Apparent Liability, Springfield 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. 8 10. Finally, 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 Springfield Broadcasting Partners, c/ o Brooks, Pierce, McLendon, Humphrey & Leonard LLP, P. O. Box 1800, Raleigh, North Carolina 27602, and to its counsel, Coe W. Ramsey, Esquire, Brooks, Pierce, McLendon, Humphrey & Leonard LLP, P. O. Box 1800, Raleigh, North Carolina 27602. FEDERAL COMMUNICATIONS COMMISSION Donna C. Gregg Chief, Media Bureau 8 See 47 C. F. R. § 1.1914. 4