Federal Communications Commission DA 08-148 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of NBC Telemundo License Co. Licensee of Station WNJU(TV) Linden, New Jersey ) ) ) ) ) Facility I.D. No. 73333 NAL/Acct. No. 0841420025 FRN: 0009825456 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: January 23, 2008 Released: January 24, 2008 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 NBC Telemundo License Co. (the “Licensee”), licensee of Station WNJU(TV), Linden, New Jersey (the “Station”), apparently willfully and repeatedly violated Sections 73.3526(e)(11)(i)-(iii) of the Rules, by failing to place in the Station’s public inspection file all required TV issues/programs lists, records concerning its compliance with the children’s programming commercial limits, and Children’s Television Programming Reports.3 Moreover, we find that the Licensee apparently willfully and repeatedly violated Section 73.3526(e)(11)(iii) of the Rules, by failing to publicize the existence and location of its Children’s Television Programming Reports. 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 thirteen thousand, five hundred dollars ($13,500). II. BACKGROUND 2. 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.4 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. In addition, 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.5 Moreover, as set forth in subsection 73.3526(e)(11)(iii), each 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)-(iii). 4 See 47 C.F.R. § 73.3526. 5 47 C.F.R. § 73.670. This rule limits the amount of commercial matter that a commercial television station may air during children’s programming to 10.5 minutes per hour on weekends and 12 minutes on weekdays. Federal Communications Commission DA 08-148 2 commercial television licensee 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 that it has made during the quarter to serve the educational and informational 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 actions undertaken by the licensee, excuse or nullify the licensee’s rule violation.6 3. On January 31, 2007, the Licensee filed its above-captioned license renewal application (FCC Form 303-S) for Station WNJU(TV) (the “Application”) (File No. BRCT-20070131AJD). 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 Commission’s Rules. In Exhibit 17, the Licensee reported that in reviewing its public file in preparation for the filing of the Application, it discovered that certain required items were missing. Specifically, the Licensee stated that its Children’s Television Programming Reports and TV issues/programs lists for the second through the fourth quarters of 2002 were missing from the public file. In addition, the Licensee indicated that records concerning its compliance with the children’s programming commercial limits for the second through the fourth quarters of 2002, all four quarters of 2003, and the first quarter of 2004 were missing from 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, the Licensee reported that it discovered that the existence and location of its Children’s Television Programming Reports had not been publicized following the acquisition of the Station in April 2002.7 The Licensee indicated that in January 2007, it began airing announcements informing the public of the existence and location of the Children’s Television Programming Reports and that it has implemented procedures to ensure future compliance. III. DISCUSSION 5. The Licensee’s failure to retain in its Station WNJU(TV) public inspection file all of the required documentation constitutes willful and repeated violations of Sections 73.3526(e)(11)(i), 73.3526(e)(11)(ii), and 73.3526(e)(11)(iii) of the Rules. Further, the Licensee’s 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.8 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.9 The legislative history to Section 312(f)(1) of the Act 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 On April 10, 2002, the Commission granted an application to transfer control of NBC Telemundo License Co., the licensee of Station WNJU(TV), from Telemundo Communications Group, Inc. to TN Acquisition Corp. (BTCCT- 20011101ACC). That transfer of control transaction was consummated on April 12, 2002. 8 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). 9 47 U.S.C. § 312(f)(1). Federal Communications Commission DA 08-148 3 clarifies that this definition of willful applies to both Sections 312 and 503(b) of the Act,10 and the Commission has so interpreted the term in the Section 503(b) context.11 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.”12 6. 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 73.3526.13 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.”14 7. In this case, the Licensee acknowledged that several required documents were missing from the public inspection file and that it failed to publicize the existence and location of the Station’s Children’s Television Programming Reports since acquisition of the Station in April 2002. Accordingly, we find that the Licensee is apparently liable for a forfeiture in the amount of $13,500. 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 NBC Telemundo License Co. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of thirteen thousand, five hundred dollars ($13,500) for its apparent willful and repeated violations of Sections 73.3526(e)(11)(i)-(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, NBC Telemundo License Co. 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 911-6229. 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. 10 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982). 11 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). 12 47 U.S.C. § 312(f)(2). 13 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. 14 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 08-148 4 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. 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. 20554.15 14. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to NBC Telemundo License Co., 1299 Pennsylvania Avenue, N.W., 9th Floor, Washington, D.C. 20004, and to its counsel, F. William LeBeau, Esquire, NBC Telemundo License Co., 1299 Pennsylvania Avenue, N.W., 9th Floor, Washington, D.C. 20004. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau 15 See 47 C.F.R. § 1.1914.