Federal Communications Commission DA 13-1642 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Korean American TV Broadcasting Corporation Licensee of Station WKTB-CD Norcross, Georgia ) ) ) ) ) Facility I.D. No. 35418 NAL/Acct. 201341420036 FRN: 0003759560 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: July 25, 2013 Released: July 26, 2013 By the Chief, Video Division, Media Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”)1 we find that Korean American TV Broadcasting Corporation (the “Licensee”), licensee of Class A television station WKTB-CD, Norcross, Georgia (the “Station”), apparently willfully and/or repeatedly violated the Commission’s Rules by: (1) failing to prepare and place in its public inspection file the Station’s quarterly TV issues/programs lists, in violation of Section 73.3526(e)(11)(i)2 and (2) failing to file timely with the Commission the Station’s Children’s Television Programming Reports, in violation of Section 73.3526(e)(11)(iii)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 Twenty Thousand Dollars ($20,000). 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.4 As set forth in subsection 73.3526(e)(11)(i), each commercial television licensee must prepare and place in its public inspection file a TV issues/programs list which details programs that have provided the station’s most significant treatment of community issues during the preceding three month period. 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 November 30, 2012, the Licensee filed its license renewal application (FCC Form 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)(i). 3 47 C.F.R. § 73.3526(e)(11)(iii). 4 47 C.F.R. § 73.3526. Federal Communications Commission DA 13-1642 2 303-S) for Station WKTB-CD (the “Application”).5 A review of Commission records reveals that the Licensee did not file issues/programs lists for the Station for 15 quarters and that the Licensee failed to file Children’s Television Programming Reports for the Station in a timely manner for 20 quarters. III. DISCUSSION 4. The Licensee’s failure to place in its public inspection file the Station’s quarterly TV issues/programs lists for 15 quarters constitutes an apparent willful and/or repeated violation of Section 73.3526(e)(11)(i). Moreover, the Licensee’s failure to file with the Commission in a timely manner its Children’s Television Programming Reports for 20 quarters constitutes an apparent willful and/or repeated violation of Section 73.3526(e)(11)(iii).6 5. This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision, any person 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.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 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.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 has not filed the quarterly issues/programs lists for the Station 5 File No. BRDTA-20121130BGN. 6 The Licensee consummated a transfer of control in 2010 which resulted in a transfer of the stock of the corporation from James C. Sim to Brenda S. Sim and in turn to their two daughters, Susan Sim and Coline K. Sim. File No. BTCTTA-20090519ACY. This transfer of control does not eliminate liability for the violations that occurred prior to the transfer because the licensee remains the same and therefore liability, as a legal matter, remains with the licensee. Mapleton Licensee of San Luis Obispo, Forfeiture Order, 27 FCC Rcd. 4099, 4101 n.19 (EB 2012); Hensley Broadcasting, Inc., Forfeiture Order, 24 FCC Rcd 1115, 116 n.9 (EB 2009). 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., 6 FCC Rcd at 4388. 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) and note to paragraph (b)(4), Section II. Federal Communications Commission DA 13-1642 3 for 15 quarters, and we conclude that the Station is apparently liable for a $10,000 forfeiture for this public file violation. The Licensee further failed to file its Children’s Television Programming Reports in a timely manner for 20 quarters, and we therefore conclude that the Station is apparently liable for a $10,000 forfeiture for this apparent violation. Based on the record before us, we therefore conclude that a total forfeiture in the amount of $20,000 for the Station is appropriate for the Licensee’s apparent willful and/or repeated violations of Sections 73.3526(e)(11)(i) and (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 Korean American TV Broadcasting Corporation is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of Twenty Thousand Dollars ($20,000) for its apparent willful and/or repeated violations of Section 73.3526 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, Korean American TV Broadcasting Corporation SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 10. In the event that the Licensee wishes to revert WKTB-CD low power television status, the Licensee need only notify us of this election and request a change in status for the station.14 Should the Licensee elect to revert WKTB-CD to low power status, the Licensee would no longer be apparently liable for the forfeiture amount described herein. 11. 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. 12. 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. 13. 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. 14. 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 14 See 47 C.F.R. § 73.6001(d). Federal Communications Commission DA 13-1642 4 1-A625, Washington, D.C. 20554.15 15. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Korean American TV Broadcasting Corporation, 4675 River Green Parkway, Duluth, Georgia, 30096, and to its counsel, Peter Tannenwald, Fletcher, Heald & Hildreth, P.L.C., 1300 N. 17th Street, Arlington, Virginia, 22209-3801. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau 15 See 47 C.F.R. § 1.1914.