Federal Communications Commission DA 08-838 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Media General Communications, Inc. Licensee of Station WTVQ-TV Lexington, Kentucky ) ) ) ) ) Facility I.D. No. 51597 NAL/Acct. No. 0841420037 FRN: 0002050185 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: April 11, 2008 Released: April 16, 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 Media General Communications, Inc. (the “Licensee”), licensee of Station WTVQ-TV, Lexington, Kentucky (the “Station”), apparently willfully and repeatedly violated Sections 73.3526(e)(5), (e)(11)(i) and 73.670 of the Rules, by failing to place in the Station’s public inspection file its most recent Biennial Ownership Report, and all required TV issues/programs lists, and 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 ten thousand dollars ($10,000). 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 (a “program-length commercial”).4 3. Section 73.3526 of the Rules requires a commercial broadcast licensee to maintain a 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)(5), 73.3526(e)(11)(i), and 73.670. 4 Children’s Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). Federal Communications Commission DA 08-838 2 public inspection file containing specific types of information related to station operations.5 As set forth in subsection 73.3526(e)(11)(i), a TV issues/programs list is to be placed in a commercial TV broadcast station’s public inspection file each calendar quarter by the tenth day of the succeeding calendar quarter. Further, subsection 73.3526(e)(5) requires each licensee of a commercial broadcast station to place in the public inspection file for its station, a copy of the most recent, complete Ownership Report filed with the Commission biennially. 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 4. On March 30, 2005, the Licensee filed its license renewal application (FCC Form 303-S) for Station WTVQ-TV, (the “Application”) (File No. BRCT-20050330AJU). 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 stated that throughout the license term, it prepared and placed in its public inspection file all of the required documents in a timely manner. The Licensee reported, however, that due to circumstances beyond its control, certain TV issues/programs lists were missing from the Station’s public inspection file. Specifically, the Licensee indicated that on February 15, 2003, a major ice storm occurred in the Lexington, Kentucky area causing damage to the Station’s main studio. According to the Licensee, the damage to the Station’s studio and subsequent relocations resulted in the loss of the Station’s TV issues/programs lists for the period from the first quarter of 2000 through the first quarter of 2004. The Licensee also stated that in preparing its Application, it discovered that the Station’s most recent ownership report was missing from the public inspection file. The Licensee asserted that when it discovered that these documents were missing during preparation of the Application, it recovered or recreated copies of all of the missing documents and placed them in the public inspection file in February and March 2005. 5. 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 February 27, 1999, and September 4, 1999. Of those five overages, one was 30-seconds in duration and four were 24- seconds in duration. The Licensee attributed the overages to inadvertence and described its new procedures designed to ensure future compliance. III. DISCUSSION 6. The Licensee’s failure to place in its Station WTVQ-TV public inspection file its most recent ownership report and all required TV issues/programs lists constitutes apparent willful and repeated violations of Sections 73.3526(e)(5) and 73.3526(e)(11)(i). 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 United States for a forfeiture penalty.7 Section 312(f)(1) of the Act defines willful as “the conscious and 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). 7 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). Federal Communications Commission DA 08-838 3 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. Based on the record before us, we believe that an adjusted $10,000 proposed forfeiture is appropriate for the apparent willful and repeated violations of Sections 73.3526(e)(5), (e)(11)(i) 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 Media General Communications, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of ten thousand dollars ($10,000) for its apparent willful and repeated violations of Sections 73.3526(e)(5), (e)(11)(i) 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, Media General Communications, 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 in the caption above. Payment by check or money order may be mailed to Federal Communications Commission, at P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank-Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank: TREAS NYC, BNF: FCC/ACV--27000001 and account number as expressed on the remittance instrument. If completing the FCC Form 159, enter the NAL/Account number in block number 23A (call sign/other ID), 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 08-838 4 and enter the letters “FORF” in block number 24A (payment type code). 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 Media General Communications, Inc., 333 East Franklin Street, Richmond, Virginia 23219, and to its counsel, Kevin P. Latek, Esquire, Dow, Lohnes & Albertson, PLLC, 1200 New Hampshire Avenue, N.W., Suite 800, Washington, D.C. 20036. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau 14 See 47 C.F.R. § 1.1914.