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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-05-SE-247
Journal Broadcast Corporation ) NAL/Acct. No. 200632100002
Ku-Band FSS Earth Station, Call ) FRN # 0002710192
Sign E940294 )
Las Vegas, Nevada
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 18, 2005 Released: November
By the Chief, Spectrum Enforcement Division, Enforcement
1. In this Notice of Apparent Liability for
Forfeiture, we find Journal Broadcast Corporation
(``Journal''), licensee of satellite earth station, E940294,
Las Vegas, Nevada, apparently liable for a forfeiture in the
amount of five thousand, two hundred dollars ($5,200) for
operating its earth station without Commission authority and
for failing to timely file a renewal application. Journal
acted in apparent willful and repeated violation of Section
301 of the Communications Act of 1934, as amended,
(``Act'')1 and Sections 25.102(a) and 25.121(e) of the
Commission's Rules (``Rules'').2
2. Journal was granted a license for its fixed-
satellite service earth station, E940294, on July 15, 1994,
with an expiration date of July 15, 2004. On July 27, 2005,
Journal filed with the Commission's International Bureau an
application for renewal of its expired license and a request
for special temporary authority (``STA'') to continue
operating its earth station pending Commission action on the
license application. The International Bureau granted
Journal's STA on August 2, 2005,3 and reinstated its license
for E940924 on September 6, 2005.4
3. Since it appeared that Journal may have operated
the earth station after the expiration of its license, the
International Bureau referred this case to the Enforcement
Bureau for investigation and possible enforcement action.
On September 13, 2005, the Enforcement Bureau's Spectrum
Enforcement Division issued a letter of inquiry (``LOI'')5
4. In its September 29, 2005 response to the LOI,6
Journal claimed that it discovered the expiration of its
station's license ``on or about June 2, 2005.''7 Citing
``an administrative oversight'' as the basis for its failure
to timely renew its license,8 Journal explained that once it
discovered the expiration of its license, it immediately
took the necessary steps to have the license reinstated.9
According to Journal, it worked with its FCC counsel and
consulting engineer to prepare the STA and license
application for submission on July 27, 2005.10 Further,
Journal admitted that it continued to operate its earth
station ``on only a limited basis'' beyond the license
expiration date without Commission authorization.11
Specifically, Journal explained that its unauthorized
operation consisted of transmitting local news feeds
``between approximately 30 and 90 minutes per day.''12
5. Section 301 of the Act and Section 25.102(a) of
the Rules prohibit the use or operation of any apparatus for
the transmission of energy or communications or signals by
an earth station except under, and in accordance with a
Commission granted authorization. Additionally, Section
25.121(e) of the Rules requires that licensees file renewal
applications for earth stations ``no earlier than 90 days,
and no later than 30 days, before the expiration of the
license.''13 Absent a timely filed renewal application, an
earth station license automatically terminates.14
6. As a Commission licensee, Journal was required to
maintain its authorization in order to operate its earth
station. Based upon the information before us, Journal
operated the earth station without Commission authority from
the station's license expiration date of July 15, 2004,
until the STA grant date of August 2, 2005. By operating
its earth station for approximately 12 months without an
instrument of authorization, Journal apparently violated
Section 301 of the Act and Section 25.102(a) of the Rules.
Journal also acted in apparent violation of Section
25.121(e) of the Rules by filing its license renewal
application on July 27, 2005, more than one year beyond the
30-day requirement prescribed by the Rules.
7. Section 503(b) of the Act,15 and Section
1.80(a) of the Rules,16 provide that any person who
willfully or repeatedly fails to comply with the provisions
of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the
term ``willful'' means that the violator knew that it was
taking the action in question, irrespective of any intent to
violate the Commission's rules, and ``repeatedly'' means
more than once.17 Based upon the record before us, it
appears that Journal's violations of Section 301 of the Act
and Sections 25.102(a) and 25.121(e) of the Rules were
willful and repeated.
8. In determining the appropriate forfeiture
amount, Section 503(b)(2)(D) of the Act directs us to
consider factors, such as ``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.''18 Having considered the statutory
factors, as explained below, we find it appropriate to
downwardly adjust the proposed aggregate forfeiture from
$6,500 to $5,200 based on Journal's voluntary disclosure of
9. Section 1.80(b) of the Rules sets a base
forfeiture amount of three thousand dollars ($3,000) for
failure to file required forms or information and ten
thousand dollars ($10,000) for operation of a station
without Commission authority.19 As the Commission recently
held, a licensee's failure to timely file a renewal
application and its continued operations without
authorization constitute separate violations of the Act and
the Rules and warrant the assessment of separate
forfeitures.20 Accordingly, we herein propose separate
forfeiture amounts for Journal's separate violations.
10. Consistent with precedent,21 we propose a
$1,500 forfeiture for Journal's failure to file the renewal
application for its earth station within the time period
specified in Section 25.121(e) of the Rules. Additionally,
we propose a $5,000 forfeiture for Journal's continued
operation of its earth station beyond July 15, 2004. In
proposing $5,000 for unauthorized operations, we recognize
that the Commission considers a licensee who operates a
station with an expired license in better stead than a
pirate broadcaster who lacks prior authority, and thus
downwardly adjusts the $10,000 base forfeiture amount
accordingly.22 Thus, we propose an aggregate forfeiture of
$6,500 ($5,000 for unauthorized operation and $1,500 for
failure to file a timely renewal application).
11. As a Commission licensee, Journal is charged with
the responsibility for knowing and complying with the terms
of its authorizations, the Act and the Rules, including the
requirement to timely renew the authorization for its earth
station.23 Journal asserts that once it became aware of its
expired license, it took immediate steps to reinstate the
license. We are not persuaded by Journal's claim that it
acted straightaway, since Journal took almost 60 days from
the date it discovered the expiration of its license to file
a renewal application. We also find no merit in Journal's
argument that it operated its earth station without
Commission authority only on a limited basis. Journal
admitted to unauthorized operation of its station and, in
this instance, is not entitled to a downward adjustment
based upon the temporal nature of the violation. We do
find, however, that a downward adjustment of the proposed
aggregate forfeiture from $6,500 to $5,200 is warranted
because Journal made voluntary disclosures to Commission
staff and undertook corrective measures after learning of
its violations, but prior to any Commission inquiry or
initiation of enforcement action.24
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to
pursuant to Section 503(b) of the Act25 and Sections 0.111,
0.311 and 1.80 of the Rules,26 Journal IS hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of
five thousand, two hundred dollars ($5,200) for the willful
and repeated violation of Section 301 of the Act and
Sections 25.102(a) and 25.121(e) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Rules,27 within thirty days of the release date
of this Notice of Apparent Liability for Forfeiture, Journal
SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
14. Payment of the 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 above. Payment
by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. A request for full payment under an
installment plan should be sent to: Associate Managing
Director-Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.28
15. The response, if any, must be mailed to the Office
of the Secretary, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554, ATTN: Enforcement
Bureau - Spectrum Enforcement Division, and must include the
NAL/Acct. No. referenced in the caption.
16. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the petitioner submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices; or (3) some other reliable and
objective documentation that accurately reflects the
petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
17. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by first
class mail and certified mail return receipt requested to
Dale R. Oswald, President, Journal Broadcast Corporation,
3355 South Valley View Boulevard, Las Vegas, Nevada 89102,
and to Journal's counsel, Mace J. Rosenstein, Hogan and
Hartson L.L.P., 555 13th Street, N.W., Washington, D.C.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
147 U.S.C. § 301.
247 C.F.R. §§ 25.102(a) and 25.121(e).
3See File No. SES-STA-20050727-00999 (granted August 2,
4See File No. SES-LIC-20050727-00996 (granted September 6,
2005). The renewal of E940294 was granted by the
International Bureau without prejudice to any future FCC
enforcement action against the company in connection with
unauthorized operation of its radio facilities.
5See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal
Communications Commission to Dale R. Oswald, President,
Journal Broadcast Corporation (September 13, 2005).
6See Letter from Douglas G. Kiel, Vice President, Journal
Broadcast Corporation to Karen Mercer, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications
Commission (September 29, 2005).
7 Id. at 1.
8Id. at 2.
11Id. at 1.
12 Id. at 4.
1347 C.F.R. § 25.121(e).
14 47 C.F.R. § 25.161(b).
1547 U.S.C. § 503(b).
1647 C.F.R. § 1.80(a).
17See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991); see also WCS Communications, Inc., 13 FCC Rcd 6691
(WTB, Enf. and Consumer Info. Div. 1998) (finding that a
licensee's inadvertent failure to file timely renewal
applications, constitutes a repeated violation that
continues until the date the license is renewed).
1847 U.S.C. § 503(b)(2)(D). See also 47 C.F.R. §
1.80(b)(4), Note to paragraph (b)(4): Section II.
Adjustment Criteria for Section 503 Forfeitures; The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17110 (1997), recon. denied
1947 C.F.R. 1.80(b).
20See Discussion Radio, Inc., 19 FCC Rcd 7433, 7438 (2004)
(assessing proposed forfeitures of $5,000 and $1,500
against a broadcaster who both operated its station for 14
months without Commission authority and failed to timely
file its renewal application).
21See Discussion Radio, Inc., 19 FCC Rcd at 7438 (proposing
a $1,500 forfeiture for failure to file a timely renewal
application for a broadcast station); see also Self
Communications, Inc., 15 FCC Rcd 18661, 18664-65 (WTB,
Public Safety and Private Wireless Div., 2000) (proposing a
$1,500 forfeiture for failure to file a timely renewal
application for a 218-219 MHz service); Vincent
Communications, Inc., 15 FCC Rcd 8432 (WTB, Enf. and
Consumer Info. Div., 1999) (proposing an aggregate $4,500
forfeiture for failure to timely renewal applications for
three paging stations), forfeiture ordered, 15 FCC Rcd
18263 (Enf. Bur. 2000); Snider Communications Corp., 14 FCC
Rcd 20047, 20048 (WTB, Enf. and Consumer Info. Div., 1999)
(proposing an aggregate $21,000 forfeiture for failure to
file timely renewal applications for 14 paging stations).
See also American Paging, supra (imposing separate
forfeitures for the unauthorized operation of two
22See Discussion Radio, Inc., 19 FCC Rcd at 7438 (proposing
a $5,000 forfeiture for operating a station for 14 months
beyond the expiration of its license).
23See Discussion Radio, 19 FCC Rcd at 7437; William S.
Mills, 15 FCC Rcd 20071, 20072 (Enf. Bur. 2000); see also
Peacock's Radio and Wild's Computer Service, Inc., 16 FCC
Rcd 15016, 15017 (2001).
24See, e.g., Radio One Licenses, Inc., 18 FCC Rcd 15964,
15965 ¶ 4 (2003), recon. denied, 18 FCC Rcd 25481 (2003);
Emery Telephone, 13 FCC Rcd 23854, 23858 (1998), recon.
denied , 15 FCC Rcd 7181 (1999); Petracom of Texarkana,
LLC, 19 FCC Rcd 8096, 8097-98 ¶¶ 5-6 (Enf. Bur. 2004);
American Family Association, 17 FCC Rcd 181135, 18137 (Enf.
Bur. 2002), recon. denied, 18 FCC Rcd 2413 (Enf. Bur.
2003); but see American Paging, Inc., 12 FCC Rcd 10417,
10420 (WTB, Enf. and Consumer Info. Div., 1997) (finding
that the mitigating effect of voluntary disclosure was
abrogated by the licensee's delay).
2547 U.S.C. § 503(b).
2647 C.F.R. §§ 0.111, 0.311 and 1.80.
2747 C.F.R. § 1.80.
28See 47 C.F.R. § 1.1914.