Federal Communications Commission DA 15-524 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Son Broadcasting, Inc. Licensee of Station KCHF Santa Fe, New Mexico ) ) ) ) ) Facility I.D. No. 60793 NAL/Acct. No.: 201541420005 FRN: 0005765680 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: May 4, 2015 Released: May 4, 2015 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 we find that Son Broadcasting, Inc. (the “Licensee”), licensee of Station KCHF, Santa Fe, New Mexico (“KCHF”), willfully and/or repeatedly violated Section 73.3526(e)(11)(iii) of the Rules 2 by failing to file with the Commission in a timely manner Children’s Television Programming Reports (FCC Form 398) for eight quarters and Section 73.3514(a) of the Rules 3 by failing to report those late filings in its renewal application. 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 Six Thousand Dollars ($6,000). II. BACKGROUND 3. 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. 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 for each calendar quarter reflecting, inter alia, the efforts that it made during that quarter to serve the educational and informational needs of children. Those reports must be prepared and placed in the public file by the 10th day after the close of the reporting quarter. That subsection also requires licensees to file the reports with the Commission and to publicize the existence and location of the reports. 4 A staff review of the Station’s electronic public file has revealed that the station failed to file eight Children’s Television Programming Reports in a 1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. 2 47 C.F.R. § 73.3526(e)(11)(iii). 3 47 C.F.R. § 73.3514(a). 4 47 C.F.R. § 73.3526(e)(11)(iii). Federal Communications Commission DA 15-524 2 timely manner. 5 4. Section 73.3514(a) of the Rules provides that “[e]ach application shall include all information called for by the particular form on which the application is required to be filed ....” 6 Section IV, Question 3 of the Form 303-S license renewal application requires licensees to certify “that the documentation, required by 47 C.F.R. Section 73.3526 ... has been placed in the station's public inspection file at the appropriate times.” In its renewal application filed on May 30, 2014, the Licensee failed to disclose that it filed its Children’s Television Programming Reports late. Although the Licensee finally disclosed these late filings in an amendment six months later on December 15, 2014, this late disclosure does not exonerate the Licensee from its violation of the certification and disclosure rule in the renewal application. At the time the Video Division completed its review of Licensee’s renewal application, the Licensee had not disclosed the eight late-filed children’s reports at issue. More importantly, by the time Licensee disclosed its late-filed reports, the deadline by which the public had the opportunity to file a petition to deny Licensee’s renewal application had long expired. 7 This delay deprived the public the opportunity to fully review the station’s TV issues/programs lists prior to the deadline for submitting a petition to deny. III. DISCUSSION 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 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.” 8 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. 9 Furthermore, the Commission has held that any inadvertent errors, oversights or failures to become familiar with Commission requirements are willful violations. 10 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, 11 and the Commission has so interpreted the term in the Section 503(b) context. 12 Section 312(f)(2) of the Act also 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 5 Licensee filed its Children’s Television Programming Reports late for the fourth quarter of 2006, the first quarter of 2007, the fourth quarter of 2007, the first quarter of 2008, the second quarter of 2009, the fourth quarter of 2011, and the third and fourth quarters of 2012. 6 47 C.F.R. § 73.3514(a). 7 See 47 C.F.R. § 73.3516(e) (stating that “a petition to deny an application for renewal of license of an existing broadcast station will be considered as timely filed if it is tendered for filing by the end of the first day of the last full calendar month of the expiring license term). Since Licensee’s license expired on October 1, 2014, the public would have had up until the end of the day on September 1, 2014 to file a petition to deny. 8 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). 9 47 U.S.C. § 312(f)(1); See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992) (“Southern California”) (stating that “Commission interpretations of “willful” do not require licensee intent to engage in a violation”). 10 See PJB Communications of Virginia, Inc., Memorandum Opinion and Order 7 FCC Rcd 2088 (1992) (asserting that "[t]he fact that a licensee's violation occurred through inadvertence does not prevent it from being willful. It is not necessary that the violation be intentional”); see also Southern California, 6 FCC Rcd at 4387 (finding that “inadvertence ... is at best, ignorance of the law, which the Commission does not consider a mitigating circumstance”); Standard Communications Corp., Memorandum Opinion and Order, 1 FCC Rcd 358 (1986) (stating that “employee acts or omissions, such as clerical errors in failing to file required forms, do not excuse violations”). 11 See H.R. Rep. No. 97-765, 97 th Cong. 2d Sess. 51 (1982). 12 See Southern California, 6 FCC Rcd at 4388. Federal Communications Commission DA 15-524 3 commission or omission is continuous, for more than one day.” 13 6. The Commission’s Forfeiture Policy Statement and Section 1.80(b) of the Rules establish a base forfeiture amount of $3,000 for failure to file a required form or information. 14 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)(E) 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.” 15 The Licensee willfully and/or repeatedly violated Section 73.3526(e)(11)(iii) of the Rules by failing to file in a timely manner eight Children’s Television Programming Reports and Section73.3514(a) of the Rules 16 for failing to report those late filings in its renewal application. In this case we propose a total forfeiture in the amount of $6,000—$3,000 for the Licensee’s failure to file its Children’s Television Programming Reports in a timely manner and $3,000 for Licensee’s failure to report those late filings in its renewal application. 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 Son Broadcasting, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of Six Thousand Dollars ($6,000) for its apparent willful and/or repeated violation of Sections 73.3526(e)(11)(iii) and 73.3514(a) of the 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, Son Broadcasting, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 9. Payments of the proposed forfeiture must be made by check or similar instrument, wire transfer, or credit card, and must include the FRN referenced above. Electronic notification of payments should also be sent to Alison Nemeth at Alison.Nemeth@fcc.gov on the date payments are made. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted. 17 When completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters “FORF” in block number 24A (payment type code). 18 ? Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with the completed Form 159) must be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. 13 47 U.S.C. § 312(f)(2); see also Callais Cablevision, Inc., Notice of Apparent Liability for Forfeiture, 16 FCC Rcd 1359, 1362 (2001). 14 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), note to paragraph (b)(8), Section I. 15 47 U.S.C. § 503(b)(2)(E); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100-01; 47 C.F.R. § 1.80(b)(8) and note to paragraph (b)(8), Section II. 16 47 C.F.R. § 73.3514(a). 17 An FCC Form 159 and detailed instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. 18 Questions regarding payment procedures, it should contact the Financial Operations Group Help Desk by phone at 1-877-480-3201, or by e mail at ARINQUIRIES@fcc.gov. Federal Communications Commission DA 15-524 4 ? Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated. ? Payment by credit card must be made by providing the required credit card information on FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment. The completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. 10. Any request for full payment over time under an installment plan should be sent to: Chief, Financial Officer—Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554. 19 If there are questions regarding payment procedures, the respective Company should contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov. 11. The response, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12 th Street, S.W., Washington, D.C. 20554, ATTN: Alison L. Nemeth, Attorney- Advisor, Video Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above. In addition, to the extent practicable, a copy of the response, if any, should be sent via e-mail to Alison.Nemeth@fcc.gov. 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. 20 13. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Son Broadcasting, Inc., P.O. Box 4338, Albuquerque, New Mexico 87196, and to its counsel, A. Wray Fitch III, Esq., Gammon & Grange, P.C., 8280 Greensboro Drive, 7 th Floor, McLean, Virginia 22102-3807. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau 19 See 47 C.F.R. § 1.1914. 20 See San Jose State Univ., 26 F.C.C. Rcd. 5908 (2011) (noting that “[t]ypically, the Commission uses gross revenue as the primary measuring stick by which it evaluates a licensee's ability to pay. Other financial indicators may be considered….”).