Federal Communications Commission DA 07-2308 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Nexstar Broadcasting, Inc. Licensee of Station KSFX-TV Springfield, Missouri ) ) ) ) ) Facility I.D. No. 3659 NAL/Acct. No. 0741420042 FRN: 0009961889 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: June 4, 2007 Released: June 11, 2007 By the Chief, Video Division, Media Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”) issued pursuant to Section 503(b) of the Communications Act of 1934, as amended (the “Act”), and Section 1.80 of the Commission’s Rules (the “Rules”),1 by the Chief, Video Division, Media Bureau pursuant to authority delegated under Section 0.283 of the Rules,2 we find that Nexstar Broadcasting, Inc. (the “Licensee”), licensee of Station KSFX-TV, Springfield, Missouri (the “Station”), apparently willfully and repeatedly violated Sections 73.3526(e)(11)(i) and (ii), and 73.670 of the Rules, by failing to place in the Station’s public inspection file all required TV issues/programs lists and records concerning compliance with the children’s programming commercial limits, and apparently violated Section 73.670 by failing to comply with the limits on commercial matter in children’s programming.3 Based upon our review of the facts and circumstances before us, we conclude that the Licensee is apparently liable for a monetary forfeiture in the amount of four thousand dollars ($4,000) for its violations of Sections 73.3526(e)(11)(i) and (ii) and 73.670. 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. §§ 303a, 303b and 394, Congress directed the Commission to adopt rules, inter alia, limiting the number of minutes of commercial matter that television stations may air during children’s programming, and to consider in its review of television license renewal applications the extent to which the licensee has complied with such commercial limits. Pursuant to this statutory mandate, 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. The Commission also stated that a program associated with a product, in which commercials for that product are aired, would cause the entire program to be counted as commercial time 1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. 2 See 47 C.F.R. § 0.283. 3 See 47 C.F.R. §§ 73.3526(e)(11)(i), 73.3526(e)(11)(ii), and 73.670. Federal Communications Commission DA 07-2308 2 (a “program-length commercial”).4 3. Section 73.3526 of the Rules requires a commercial broadcast licensee to maintain a public inspection file containing specific types of information related to station operations.5 Pursuant to subsection 73.3526(e)(11)(ii), 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 its compliance with the children’s television commercial limits imposed by Section 73.670 of the Rules. Additionally, subsection 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. These subsections of Section 73.3526 require licensees to place such records concerning commercial limits 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 or omissions of station employees or agents, nor the subsequent remedial actions undertaken by the licensee, excuse or nullify the licensee’s rule violation.6 4. On October 3, 2005, the Licensee filed its license renewal application (FCC Form 303-S) for Station KSFX-TV (the “Application”) (File No. BRCT-20051003ABD). In response to Section IV, Question 3 of the Application, the Licensee stated that, during the previous license term, it had failed to timely place in its public inspection file all of the documentation required by Section 73.3526 of the Rules. In Exhibit 17, the Licensee indicated that during its review of the public inspection file in preparation for the filing of the Application, it discovered that TV issues/programs lists for 1998 and documents evidencing compliance with the commercial limits in children’s programming for the first and second quarters of 1998 were missing. 5. Further, in response to Section IV, Question 5, the Licensee stated that, during the previous license term, it failed to comply with the limitations on commercial matter in children’s programming specified in Section 73.670 of the Commission’s Rules. In Exhibit 19, the Licensee indicated that the Station exceeded the children’s television commercial limits on five occasions between August 8, 1998, and September 26, 1998. Of those five overages, two were 15-seconds in duration and three were 30-seconds in duration. The Licensee attributed the 15-second overages to human error and the 30-second overages to commercial make goods. The Licensee described the procedures it implemented to prevent future violations. III. DISCUSSION 6. The Licensee’s failure to place in its Station KSFX-TV public inspection file all required TV issues/programs lists and records concerning compliance with the children’s programming commercial limits constitutes apparent willful and repeated violations of Sections 73.3526(e)(11)(i) and 73.3526(e)(11)(ii). Moreover, the Licensee’s failure to comply with the limits on commercial matter in children’s programming constitutes an apparent willful and repeated violation of Section 73.670. 7. This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision, any person who is determined by the Commission to have willfully or repeatedly failed to comply with any provision of the Act or any rule, regulation, or order issued by the Commission shall be liable to the 4 Children’s Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). 5 See 47 C.F.R. § 73.3526. 6 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). Federal Communications Commission DA 07-2308 3 United States for a forfeiture penalty.7 Section 312(f)(1) of the Act defines willful as “the conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law.8 The legislative history to Section 312(f)(1) of the Act clarifies that this definition of willful applies to both Sections 312 and 503(b) of the Act,9 and the Commission has so interpreted the term in the Section 503(b) context.10 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.”11 8. The Commission’s Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules establish a base forfeiture amount of $10,000 for violation of Section 73.3526 and a base forfeiture amount of $8,000 for violation of Section 73.670.12 In determining the appropriate forfeiture amount, we may adjust the base amount upward or downward by considering 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.”13 9. In this case, the Licensee reported that TV issues/programs lists for 1998 and documents evidencing compliance with the commercial limits in children’s programming for the first and second quarters of 1998 were missing from the public inspection file. Considering the record as a whole, we believe that a $4,000 proposed forfeiture is appropriate for the apparent willful and repeated violations of Sections 73.3526(e)(11)(i) and (ii), and 73.670. IV. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Section 1.80 of the Commission’s Rules, that Nexstar Broadcasting, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of four thousand dollars ($4,000) for its apparent willful and repeated violations of Sections 73.3526(e)(11)(i), (e)(11)(ii), and 73.670 of the Commission’s Rules. 11. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s Rules, that, within thirty (30) days of the release date of this NAL, Nexstar Broadcasting, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 12. Payment of the proposed 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, Pennsylvania 15251-8340. Payment by 7 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). 8 47 U.S.C. § 312(f)(1). 9 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982). 10 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). 11 47 U.S.C. § 312(f)(2). 12 See Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087, 17113-15 (1997) (“Forfeiture Policy Statement”), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section I. 13 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100-01; 47 C.F.R. § 1.80(b)(4); 47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section II. Federal Communications Commission DA 07-2308 4 overnight mail may be sent to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, Pennsylvania 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911-6229. 13. The response, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554, ATTN: Barbara A. Kreisman, Chief, Video Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above. 14. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the respondent submits: (1) federal tax returns for the most recent three- year period; (2) financial statements prepared according to generally accepted accounting practices (“GAAP”); or (3) some other reliable and objective documentation that accurately reflects the respondent’s current financial status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation submitted. 15. Requests for full payment of the forfeiture proposed in this NAL under the installment plan should be sent to: Associate Managing Director- Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554.14 16. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Nexstar Broadcasting, Inc., 909 Lake Carolyn Parkway, Suite 1450, Irving, Texas 75039, and to its counsel, Elizabeth Hammond, Esquire, Drinker Biddle & Reath LLP, 1500 K Street, N.W., Suite 1100, Washington, D.C. 20005-1209. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau 14 See 47 C.F.R. § 1.1914.