Federal Communications Commission DA 07-602 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Ramar Communications II, Ltd. Licensee of Station KTEL-TV Carlsbad, New Mexico ) ) ) ) ) Facility I.D. No. 83707 NAL/Acct. No. 0741420013 FRN: 0004249850 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: February 8, 2007 Released: February 9, 2007 By the Chief, 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, Media Bureau pursuant to authority delegated under Section 0.283 of the Rules,2 we find that Ramar Communications II, Ltd. (the “Licensee”), licensee of Station KTEL-TV, Carlsbad, New Mexico (the “Station”), apparently violated Section 73.3526(e)(11)(iii) of the Rules, by failing to place in the station’s public inspection file all required Children’s Television Programming Reports and by failing to publicize the existence and location of its Children’s Television Programming Reports.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 seven thousand dollars ($7,000). II. BACKGROUND 2. Under the Commission’s rules implementing the Children’s Television Act of 1990 (CTA),4 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).5 The Commission’s rules require commercial licensees to provide information to the public about the shows they air to fulfill their obligation. Subsection 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 (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. As set forth in Subsection 73.3526(e)(11)(iii), licensees are also required to file the reports with the Commission and to publicize the existence and location of the reports. Where lapses occur in maintaining the public file, neither the negligent acts nor omissions of station employees or agents, nor the subsequent remedial 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)(iii). 4 Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. Sections 303a, 303b and 394. 5 47 C.F.R. § 73.671. Federal Communications Commission DA 07-602 2 actions undertaken by the licensee, excuse or nullify the licensee’s rule violation.6 3. On June 1, 2006, the Licensee filed its license renewal application for Station KTEL-TV (the “Application”) (File No. BRCT-20060601ABR). 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, it indicated that it discovered that the Station’s Children’s Television Programming Reports for the second through the fourth quarters of 2001, and the first quarter of 2002, were missing from the public inspection file. The Licensee stated that upon discovering that these documents were missing, it placed copies in the public file. 4. In addition, in response to Section IV, Question 10 of the Application, the Licensee stated that it had 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, it reported that it publicized the existence and location of the Station’s Children’s Television Programming Reports from the beginning of the license term until November 2002. The Licensee indicated that by November 2002, the Station had installed a new traffic system and the announcements regarding the existence and location of the Children’s Television Programming Reports were inadvertently not programmed into the new system. The Licensee stated that upon discovery of this omission in December 2005, it implemented procedures to ensure future compliance. III. DISCUSSION 5. The Licensee’s failure to place in its Station KTEL-TV public inspection file the required Children’s Television Programming Reports, and its failure to publicize the existence and location of the Station’s Children’s Television Programming Reports, constitutes a willful and repeated violation of Section 73.3526(e)(11)(iii). 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 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 6. The Commission’s Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules 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). 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). Federal Communications Commission DA 07-602 3 establish a base forfeiture amount of $10,000 for violation of Section 73.3526.12 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 7. In this case, the Licensee reported that the Station’s Children’s Television Programming Reports for the second through the fourth quarters of 2001, and the first quarter of 2002, were missing from the public inspection file. Further, the Licensee acknowledged that it failed to publicize the existence and location of the Station’s Children’s Television Programming Reports from November 2002 until December 2005. Accordingly, we find that the Licensee is apparently liable for a forfeiture in the amount of $7,000 for its failure to place all required Children’s Television Programming Reports in the public inspection file and its failure to publicize the existence and location of the Station’s Children’s Television Programming Reports in apparent willful and repeated violation of Section 73.3526(e)(11)(iii). IV. ORDERING CLAUSES 8. 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 Ramar Communications II, Ltd. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand dollars ($7,000) for its apparent willful and repeated violations of Section 73.3526(e)(11)(iii) of the Commission’s Rules. 9. 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, Ramar Communications II, Ltd. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 10. 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 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 911-6106. 11. 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. 12. 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. 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 07-602 4 13. 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 14. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Ramar Communications II, Ltd., 9800 University Avenue, Lubbock, Texas 79423, and to its counsel, Dennis P. Corbett, Esq., Leventhal Senter & Lerman PLLC, 2000 K Street, N.W., Suite 600, Washington, D.C. 20006. FEDERAL COMMUNICATIONS COMMISSION Monica Desai Chief, Media Bureau 14 See 47 C.F.R. § 1.1914.