Federal Communications Commission DA 13-1558 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of D.T.V. LLC Licensee of Station WPHA-CD Philadelphia, Pennsylvania ) ) ) ) ) Facility I.D. No. 72278 NAL/Acct. No.: 201341420031 FRN: 0013224662 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: July 10, 2013 Released: July 11, 2013 By the Deputy 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 we find that D.T.V. LLC, licensee of Station WPHA-CD (the “Station”), apparently willfully and/or repeatedly violated Section 73.3526(e)(11)(iii) of the Rules by failing to file timely with the Commission the Station’s Children’s Television Programming Reports.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 nine thousand dollars ($9,000). 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. A review of the Station’s online public file shows that the Licensee failed to file Children’s Television Programming reports in a timely manner for 15 quarters since the last license renewal. III. DISCUSSION 4. The Licensee’s failure to prepare, place in the public file, and file with the Commission in a timely manner its Children’s Television Programming Reports constitute apparent willful and/or repeated violations of Section 73.3526(e)(11)(iii). 1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. 2 See 47 C.F.R. § 73.3526(e)(11)(iii). 3 47 C.F.R. § 73.3526. Federal Communications Commission DA 13-1558 2 5. 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.4 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.5 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,6 and the Commission has so interpreted the term in the Section 503(b) context.7 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.”8 6. 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 or information.9 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.”10 In this case, the Licensee repeatedly failed to file the reports with the Commission in a timely manner during the quarters identified in the Commission inquiry, and we therefore conclude that the Station is apparently liable for a 9,000 forfeiture for these apparent violations. IV. ORDERING CLAUSES 7. 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 D.T.V. LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of nine thousand dollars ($9,000) for its apparent willful and repeated violations of Section 73.3526(e)(11)(iii) of the Commission’s Rules. 8. 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, that D.T.V. LLC SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 9. In the event that the Licensee wishes to revert WPHA-CD to low power television status, the Licensee need only notify us of this election and request a change in status for the station.11 Should the Licensee elect to revert the station to low power status, the Licensee would no longer be apparently liable for the forfeiture amount described herein. 4 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). 5 47 U.S.C. § 312(f)(1). 6 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982). 7 See Southern California Broadcasting Co., 6 FCC Rcd at 4388. 8 47 U.S.C. § 312(f)(2). 9 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. 10 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. 11 See 47 C.F.R. § 73.6001(d). Federal Communications Commission DA 13-1558 3 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 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), and enter the letters “FORF” in block number 24A (payment type code). 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. 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. 20554.12 14. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to D.T.V. LLC, 1903 South Greeley Highway #127, Cheyenne, Wyoming, 82007-3447, and to its counsel, Peter Tannenwald, 1300 North 17th Street, 11th Floor, Arlington, Virginia, 22209-3801. FEDERAL COMMUNICATIONS COMMISSION Hossein Hashemzadeh Deputy Chief, Video Division Media Bureau 12 See 47 C.F.R. § 1.1914.