Federal Communications Commission	DA 21-617


Before the
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554

In the Matter of

Tutt Media Group, Inc.

Licensee of Stations WTMH-LD, Kinston, NC; WTMQ-LD, Jacksonville, NC; WTMV-LD, Ogden, NC
)
)
)
)
)
)
)


Facility ID Nos.:  184344; 184346; 184347
NAL/Acct. No.:  202141420007
FRN:  0021749619 
LMS File No.:  0000127355

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:  May 27, 2021	Released:  May 27, 2021

By the Chief, Video Division, Media Bureau:

I. INTRODUCTION
1. The Media Bureau (Bureau) has before it the application (Application) File No. 0000127355.  WTMH-LD, WTMQ-LD, and WTMV-LD are each low power television stations.  In this case, the Licensee filed for the joint renewal of the licenses of all three Stations in a single renewal application.
 of Tutt Media Group, Inc. (Licensee), for renewal of its licenses for WTMH-LD, Kinston, NC, WTMQ-LD, Jacksonville, NC, and WTMV-LD, Ogden, NC (Stations).  In this Notice of Apparent Liability for Forfeiture (NAL), we find the Licensee apparently willfully violated section 73.3539(a) of the Commission’s rules (Rules)  47 CFR § 73.3539(a).
 by failing to timely file a license renewal application for the Stations.  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 four thousand five hundred dollars ($4,500).
II. BACKGROUND
2. Section 73.3539(a) of the Rules requires that applications for renewal of license for broadcast stations must be filed “not later than the first day of the fourth full calendar month prior to the expiration date of the license sought to be renewed.” Id.
  The application for renewal of the Stations’ licenses should have been filed by August 3, 2020, the first day of the fourth full calendar month prior to the Stations’ license expiration date of December 1, 2020. See 47 CFR §§ 73.1020, 73.3539(a); See Media Bureau Announces Procedures For 2020-2023 Television License Renewal Cycle, Public Notice, 35 FCC Rcd 3656 (2020).  Because the filing deadline for the renewal application would have otherwise fallen on a Saturday (August 1, 2020), the filing deadline was extended until the next business day, August 3, 2020.  See 47 CFR 73.3539(a).
  However, the Licensee did not file the Application until November 25, 2020.  In the Application, the Licensee indicates that the failure to timely file was in part due to “recent financial issues” and “inexperience” regarding Commission rules and requirements.
III. DISCUSSION
3. Proposed Forfeiture.  We find that the Licensee is apparently liable for a forfeiture in the amount of $4,500.  In this case, the Licensee failed to file the Application on or before August 3, 2020, as required by section 73.3539(a) of the Rules.  The Application was not received until November 25, 2020, almost four months late.  
4. Pursuant to section 503(b)(1)(B) of the Communications Act of 1934, as amended (Act), a person who is found 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. See 47 U.S.C. § 503(b)(1)(B); see also 47 CFR § 1.80(a)(2).
  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. 47 U.S.C. § 312(f)(1).
  The legislative history to section 312(f)(1) of the Act clarifies that this definition of willful applies to both section 312 and 503(b) of the Act, See H.R. Rep. No. 97-765, at 51 (1982) (Conf. Rep.).
 and the Commission has so interpreted the term in the section 503(b) context. See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (1991) (Southern California), recon. denied, 7 FCC Rcd 3454 (1992).
  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.” 47 U.S.C. § 312(f)(2).

5. The Commission’s Forfeiture Policy Statement and section 1.80(b)(10) of the Rules establish a base forfeiture amount of $3,000 for failure to file a required form or information. See Forfeiture Policy Statement and Amendment of Section 1.80 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 CFR § 1.80(b), paragraph (b)(10), Table 1. 
  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.” 47 U.S.C. § 503(b)(2)(E).  See also Forfeiture Policy Statement, 12 FCC Rcd at 17100-01; 47 CFR § 1.80(b)(10); 47 CFR § 1.80(b), paragraph (b)(10), Table 3.

6. In this case, the Licensee failed to timely file a license renewal application for three stations, as required by section 73.3539(a) of the Rules.  The Licensee indicates that the failure to timely file the Application was in part due to “recent financial issues” and “inexperience” regarding Commission rules and requirements.  However, the Commission has repeatedly held that violations resulting from inadvertent error or failure to become familiar with Commission requirements are willful violations. Southern California, 6 FCC Rcd at 4387, para. 3 (stating that “inadvertence… is at best, ignorance of the law, which the Commission does not consider a mitigating circumstance”); Standard Comm’cns Corp., Memorandum Opinion and Order, 1 FCC Rcd 358, 358, para. 4 (1986) (stating that “employee acts or omissions, such as clerical errors in failing to file required forms, do not excuse violations”).  To the extent the Licensee argues that its financial issues merit a downward adjustment or cancellation of this proposed forfeiture then it may follow the procedure described in paragraph 12 of this NAL.
  Taking into consideration all of the factors required by section 503(b)(2)(E) of the Act and the Forfeiture Policy Statement, we will reduce the forfeiture from the base amount to $1,500 per station for the failure to file a timely renewal application, because, as low power television stations, the Stations are providing a secondary service. See, e.g., FCR Broadcasting, Inc., Notice of Apparent Liability for Forfeiture, 36 FCC Rcd 1383 (MB 2021); Iglesia Sinai Pentecostes, Inc., Notice of Apparent Liability for Forfeiture, 36 FCC Rcd 1513 (MB 2021); Gerard Media LLC, Notice of Apparent Liability for Forfeiture, 36 FCC Rcd 1436 (MB 2021) (all reducing fine for a late renewal application to $1,500 because the stations “provid[e] a secondary service.”).  See also Digital Low Power Television, Television Translator, and Television Booster Stations and Digital Class A Television Stations, Report and Order, 19 FCC Rcd 19331, 19333, paras. 2-6 (2004) (“The low power television service consists of LPTV, TV translator, and television booster stations…  Stations in the low power television service are authorized with ‘secondary’ frequency use status.”).
  Because the Application included three stations the total proposed forfeiture amount is $4,500.
7. License Renewal Application.  In evaluating an application for license renewal, the Commission’s decision is governed by section 309(k) of the Act. 47 U.S.C. § 309(k).
  That section provides that if, upon consideration of the application and pleadings, we find that:  (1) the station has served the public interest, convenience, and necessity; (2) there have been no serious violations of the Act or the Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant the renewal application. 47 U.S.C. § 309(k)(1).  
  If, however, the licensee fails to meet that standard, the Commission may deny the application—after notice and opportunity for a hearing under section 309(e) of the Act—or grant the application “on terms and conditions as are appropriate, including renewal for a term less than the maximum otherwise permitted.” 47 U.S.C. §§ 309(k)(2), 309(k)(3).
 
8. We find that the Licensee’s apparent violation of section 73.3539(a) of the Rules does not constitute a “serious violation” warranting designation of the Application for evidentiary hearing.  Moreover, we find no evidence of violations that, when considered together, constitute a pattern of abuse. For example, we do not find here that the Licensee’s operation of the Stations “was conducted in an exceedingly careless, inept and negligent manner and that the licensee is either incapable of correcting or unwilling to correct the operating deficiencies.”  See Heart of the Black Hills Stations, Decision, 32 FCC 2d 196, 198, para. 6 (1971).  Nor do we find on the record here that “the number, nature and extent” of the violations indicate that “the licensee cannot be relied upon to operate [the station] in the future in accordance with the requirements of its licenses and the Commission’s Rules.”  Id. at 200, paras. 10-11.  See also Center for Study and Application of Black Econ. Dev., Hearing Designation Order, 6 FCC Rcd 4622 (1991); Calvary Educ. Broad. Network, Inc., Hearing Designation Order, 7 FCC Rcd 4037 (1992).
  Further, based on our review of the Application, we find that the Stations served the public interest, convenience, and necessity during the subject license term.  We will therefore grant the Application by separate action upon the conclusion of this forfeiture proceeding if there are no issues other than those set forth in this NAL that would preclude grant of the Application.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. § 503(b), and sections 1.80 and 0.283(d) of the Commission’s rules, 47 CFR §§ 1.80 and 0.283, that Tutt Media Group, Inc., is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of four thousand five hundred dollars ($4,500) for its apparent and/or willful violation of section 73.3539(a) of the Commission’s rules, 47 CFR § 73.3539(a).
10. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Commission’s rules, 47 CFR § 1.80, within thirty (30) days of the release date of this NAL, Tutt Media Group, 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 forfeiture must be made by credit card, ACH (Automated Clearing House) debit from a bank account using the Commission’s Fee Filer (the Commission’s online payment system), Payments made using the Commission’s Fee Filer system do not require the submission of an FCC Form 159.
 or by wire transfer.  The Commission no longer accepts forfeiture payments by check or money order.  Below are instructions that payors should follow based on the form of payment selected: For questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone at 1-877-480-3201 (option #6), or by e-mail at ARINQUIRIES@fcc.gov.  
 
· Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001.  A completed Form 159 must be faxed to the Federal Communications Commission at 202-418-2843 or e-mailed to RROGWireFaxes@fcc.gov on the same business day the wire transfer is initiated.  Failure to provide all required information in Form 159 may result in payment not being recognized as having been received.  When completing FCC Form 159, enter the Account Number in block number 23A (call sign/other ID), enter the letters “FORF” in block number 24A (payment type code), and enter in block number 11 the FRN(s) captioned above (Payor FRN). Instructions for completing the form may be obtained at https://www.fcc.gov/Forms/Form159/159.pdf. 
  For additional detail and wire transfer instructions, go to https://www.fcc.gov/licensing-databases/fees/wire-transfer.
· Payment by credit card must be made by using the Commission’s Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm.  To pay by credit card, log in using the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Pay bills” on the Fee Filer Menu, and select the bill number associated with the NAL Account – the bill number is the NAL Account number with the first two digits excluded – and then choose the “Pay by Credit Card” option.  Please note that there is a dollar limitation on credit card transactions, which cannot exceed $24,999.
· Payment by ACH must be made by using the Commission’s Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm.  To pay by ACH, log in using the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Pay bills” on the Fee Filer Menu and then select the bill number associated to the NAL Account–the bill number is the NAL Account number with the first two digits excluded–and choose the “Pay from Bank Account” option.  Please contact the appropriate financial institution to confirm the correct Routing Number and the correct account number from which payment will be made and verify with that financial institution that the designated account has authorization to accept ACH transactions.
12. The written response seeking reduction or cancellation of the proposed forfeiture, if any, must include a detailed factual statement supported by appropriate documentation and affidavits pursuant to sections 1.16 and 1.80(f)(3) of the Rules. 47 CFR §§ 1.16 and 1.80(f)(3).
  The written response must be filed with the Office of the Secretary, Federal Communications Commission, 45 L Street, NE, Washington, DC 20554, ATTN:  Barbara A. Kreisman, Chief, Video Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.  A courtesy copy should also be emailed to Andrew.Kennedy@fcc.gov to assist in processing the response.
· Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail.  All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission.
o Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. 
o Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street, NE, Washington, DC 20554.
o Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (2020).
  
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.  Inability to pay, however, is only one of several factors that the Commission will consider in determining the appropriate forfeiture, and we have discretion to not reduce or cancel the forfeiture if other prongs of 47 U.S.C. § 503(b)(2)(E) support that result. See, e.g., Adrian Abramovich, Forfeiture Order, 33 FCC Rcd 4663, 4678-79, paras. 44-45 (2018).
  
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, 45 L Street, NE, Washington, DC 20554. See 47 CFR § 1.1914.
  Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by phone, 1-877-480-3201 (option #6), or by e-mail at ARINQUIRIES@fcc.gov.
15. IT IS FURTHER ORDERED, that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Tutt Media Group, Inc., 136 North Queen Street, Kinston, NC 28501, and to its counsel, Jeffrey L. Timmons, Esq., 974 Branford Lane NW, Lilburn, GA 30047.
						FEDERAL COMMUNICATIONS COMMISSION




						Barbara A. Kreisman 
						Chief, Video Division
Media Bureau

2