Federal Communications Commission DA 14-824 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of KCTZ Communications, Inc. Licensee of Station KBZK(TV), Bozeman, MT ) ) ) ) ) Facility I.D. No. 33756 NAL/Acct. No. 201441420019 FRN: 0001563956 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: June 17, 2014 Released: June 17, 2014 By the Chief, Video Division, Media Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”)1 we find that KCTZ Communications, Inc. (the “Licensee”), licensee of television station KBZK(TV), Bozeman, MT (the “Station”), apparently willfully and/or repeatedly violated Section 73.3526(e)(11)(iii) of the Rules, by failing to publicize the existence and location of the Station’s Children’s Television Programming Reports (Form 398).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 One Thousand Dollars ($1,000). 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 December 2, 2013, the Licensee filed its license renewal application (FCC Form 303-S) for the Station (the “Application”).4 In Exhibit 27 to the Application, the Licensee acknowledges that it failed to publicize adequately the existence and location of its Children’s Television Programming Reports on-air from November 2012 through November 2013.5 The Licensee states that in September 2012 the Station’s traffic operations were consolidated with those of a commonly owned station, and in 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 File No. BRCDT-20131202AHV. 5 File No. BRCDT-20131202AHV at Ex. 27. Federal Communications Commission DA 14-824 2 the transition process, the on-air publications of the existence and location of the Children’s Television Programming Reports was inadvertently dropped in November 2012.6 The Licensee maintains that at all times the Station's website continued to publicize the contact for programming.7 The Licensee also states that when the Station discovered the missing on-air publications of the existence and location of the Children’s Television Programming Report in November 2013, the Station promptly resumed on-air publications in addition to maintaining and upgrading the website links.8 III. DISCUSSION 5. The Licensee’s failure to publicize adequately the Station’s Children’s Television Programming Reports constitutes an apparent willful and/or repeated violation of Section 73.3526(e)(11)(iii). Although the Licensee essentially states that the violations resulted from human error, the Commission has repeatedly rejected human error and inadvertence as a basis for excusing a licensee’s rule violation.9 Furthermore, corrective actions may have been taken to prevent subsequent violations of the children’s television rules and policies, but that too, does not relieve the Licensee of liability for the violations which have occurred.10 6. 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.11 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.12 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,13 and the Commission has so interpreted the term in the Section 503(b) context.14 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.”15 7. The Commission’s Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules establish a base forfeiture amount of $10,000 for public file violations.16 In determining the appropriate 6 Id. 7 Id. 8 Id. 9 See, e.g., Hayco Broadcasting, Inc., Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 15039 (2012); WCVB Hearst Television, Inc. (WCVB(TV)), Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 6128 (2010); WSOC Television, Inc. (WSOC-TV), Notice of Apparent Liability for Forfeiture Letter, 25 FCC Rcd 6124 (2010); Media General Communications Holdings, LLC, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 6132 (2010). 10 See, e.g., WSOC Television, 25 FCC Rcd at 6125; WCVB Hearst Television, Inc., 25 FCC Rcd at 6129-30; WFTV, Inc. (WFTV(TV)), Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 6140 (2010). 11 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). 12 47 U.S.C. § 312(f)(1). 13 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982). 14 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). 15 47 U.S.C. § 312(f)(2). 16 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 14-824 3 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.”17 8. In this case, the Licensee failed to publicize the Station’s Children’s Television Programming Reports for approximately one year. Based on the record before us, we believe that a forfeiture in the amount of $1,000 for the Station is appropriate for the Licensee’s apparent willful and/or repeated violations of Section 73.3526(e)(11)(iii).18 IV. ORDERING CLAUSES 9. 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 KCTZ Communications, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of One Thousand Dollars ($1,000) for its apparent willful and repeated violations of Section 73.3526 of the Commission’s Rules. 10. 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, KCTZ 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. 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. 17 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. 18 See, e.g., Televicentro of Puerto Rico, LLC (WAPA-TV), 20 FCC Rcd 20292 (MB 2005) ($4,000 forfeiture for failure to publicize the existence and location of the reports for approximately five years); S&E Network, Inc. (WJWN-TV), 20 FCC Rcd 20277 (MB 2005) ($3,000 forfeiture proposed for failure to publicize the existence and location of the reports for approximately three years). Federal Communications Commission DA 14-824 4 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 1-A625, Washington, D.C. 20554.19 15. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to KCTZ Communications, Inc., 90 Television Way, Bozeman, MT 59718, and its representative, Christina H. Burrow, 1299 Pennsylvania Avenue NW, Washington, DC 20004. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau 19 See 47 C.F.R. § 1.1914.