Federal Communications Commission DA 13-1163 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: Elliott B. Block Licensee of Station WOTH-CA Cincinnati, Ohio ) ) ) ) ) Facility I.D. No. 19431 NAL/Acct. 201341420012 FRN: 0003754710 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: May 20, 2013 Released: May 21, 2013 By the Chief, Video Division, Media Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”)1 we find that Elliott B. Block (the “Licensee”), licensee of Class A television station WOTH-CA, Cincinnati, Ohio (the “Station”), apparently willfully and/or repeatedly violated the Commission’s Rules by: failing to file with the Commission, and place in its public inspection files, the Station’s Children’s Television Programming Reports, in violation of Section 73.3526(e)(11)(iii).2 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 Dollars ($13,000). II. BACKGROUND 2. Section 73.3526 of the Rules requires each commercial broadcast licensee to maintain a public inspection file containing specific types of information related to station operations.3 As set forth in subsection 73.3526(e)(11)(iii), each 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 made during that quarter to serve the educational and informational needs of children. That subsection also requires licensees to file the reports with the Commission and to publicize the existence and location of the reports. 3. On March 31, 2011, the staff issued a letter to the Licensee (“Letter”), stating that Commission records indicated that it failed to make the required Form 398 electronic filings for the Station for the second, third, and fourth quarters in 2010. The Letter required the Licensee to provide information, supported by the declaration of a person with personal knowledge,4 identifying the quarters for which a Children’s Television Programming Report was prepared and placed in the Stations’ public inspection files and the location of the files. The Letter further required that this information be filed within 30 days, and stated that failure to provide the requested information would result in the institution 1 This NAL is 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”). See 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. The Chief, Video Division, Media Bureau, has delegated authority to issue the NAL under Section 0.283 of the Rules. See 47 C.F.R. § 0.283. 2 47 C.F.R. § 73.3526(e)(11)(iii). 3 47 C.F.R. § 73.3526. 4 47 C.F.R. § 1.16. Federal Communications Commission DA 13-1163 2 of a forfeiture proceeding and/or loss of Class A television status. 4. Further investigation revealed that the Station filed its Children’s Television Programming Reports for all four quarters of 2006 on February 27, 2007; for the first quarter of 2007 on June 8, 2007; for the second through fourth quarters of 2007 and the first quarter of 2008 on April 11, 2008; for the second through fourth quarters of 2008 on May 1, 2009; for the first and second quarters of 2009 on May 1, 2009; for the third and fourth quarters of 2009 and all four quarters of 2010 on April 7, 2011; for all four quarters of 2011 on February 29, 2012, for the first quarter of 2012 on May 2, 2012; for the second and third quarters of 2012 on October 23, 2012; and for the fourth quarter of 2012 on February 4, 2013. Thus, all of the reports since 2006 have been electronically filed with the Commission in an untimely manner.5 5. The Station later confirmed in a March 26, 2013 letter to the Commission that the Reports were prepared and placed in the public file at the same time that they were electronically filed with the Commission. Therefore, the reports were also prepared and placed in the public file in an untimely manner. III. DISCUSSION 6. The Licensee’s failure to prepare, place in its public inspection file, and electronically file with the Commission in a timely manner its Children’s Television Programming Reports for 27 quarters constitutes an apparent willful and/or repeated violation of Section 73.3526(e)(11)(iii). 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 and/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.6 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.7 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,8 and the Commission has so interpreted the term in the Section 503(b) context.9 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.”10 8. The Commission’s Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules establish a base forfeiture amount of $3,000 for failure to file a required form and a base forfeiture amount of $10,000 for public file violations.11 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 5 The report for the first quarter of 2008 was only one day late, a deficiency we would likely excuse absent the long record of late filings. 6 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). 7 47 U.S.C. § 312(f)(1). 8 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982). 9 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). 10 47 U.S.C. § 312(f)(2). 11 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. Federal Communications Commission DA 13-1163 3 violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.”12 9. In this case, the Licensee has admitted that it failed to prepare, file with the Commission, and place in the public inspection file Children’s Television Programming Reports in a timely manner for 27 quarters, and we conclude that the Station is apparently liable for a $10,000 forfeiture for this public file violation and a $3,000 forfeiture for its failure to file the required forms. Based on the record before us, we therefore conclude that a total forfeiture in the amount of $13,000 for the Station is appropriate for the Licensee’s apparent willful and/or repeated violations of Section 73.3526(e)(11)(iii).13 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 Elliott B. Block is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of Thirteen Thousand Dollars ($13,000) for its apparent willful and/or repeated violations of Section 73.3526 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, Elliott B. Block SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 12. In the event that WOTH-CA wishes revert to low power television status, you need only notify us of this election and request a change in status for the station.14 Should the station elect to revert to low power status, the Licensee would no longer be apparently liable for the forfeiture amount described herein. 13. 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. Nos. and FRN Nos. 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 numbers in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type code). Licensee will also send electronic notification on the date said payment is made to Peter.Saharko@fcc.gov. 14. 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. Nos. referenced above. 15. The Commission will not consider reducing or canceling a forfeiture in response to a claim of 12 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) and note to paragraph (b)(4), Section II. 13 The Licensee also failed to place the required certification of the Station’s compliance with the requirements of 47 C.F.R. § 73.6001 in its public file in a timely manner. We will exercise our discretion pursuant to Section 503(b) of the Act and admonish the Licensee for its apparent violation of Section 73.3526(c)(17) of the Commission’s Rules. 14 See 47 C.F.R. § 73.6001(d). Federal Communications Commission DA 13-1163 4 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. 16. 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 17. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Elliott B. Block, 7737 Reinhold Drive, Cincinnati, Ohio, 45327-2805. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau 15 See 47 C.F.R. § 1.1914.