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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
E-DA-HOE, Inc. File No. EB-04-IH-0137
Licensee of Class A Television NAL Account No. 200732080003
FRN No. 0001635317
KSVX-LP, Hailey, Idaho )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 27, 2006 Released: October 30, 2006
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that E-DA-HOE, Inc., ("E-DA-HOE" or the "Company"), licensee of Class
A Television Station KSVX-LP, Hailey, Idaho, (the "Station"),
willfully and repeatedly committed 22 apparent violations of Section
73.1201 of the Federal Communication Commission's ("FCC" or
"Commission") rules, relating to station identification. For the
following reasons, we conclude that E-DA-Hoe is apparently liable for
a forfeiture in the amount of $5,000.
2. The Commission received a complaint alleging that the Station failed
to provide appropriate station identification during its television
programming (the "Complaint"). The Complaint included four video tapes
purportedly depicting Station KSVX-LP programming on various dates
between January 25 and April 1, 2004. Enforcement Bureau staff
reviewed the video tapes and determined that they contained 24 hours
of television programming, yet contained only two station
identification announcements. The Enforcement Bureau issued a letter
of inquiry to E-DA-HOE, directing it to explain, inter alia, its
station identification policies. E-DA-HOE, by counsel, responded by
letter that the Station identifies itself twice an hour, as close to
the half hour and hour mark as possible. E-DA-HOE further explains
that the Station uses identification equipment to insert automatically
a station identification by superimposing the identification onto the
top center of the screen for ten seconds. E-DA-HOE adds, however, that
"on occasion, due to unforeseen technical difficulties, most often as
a result of a thunderstorm or power surge, the automated equipment
that inserts the station identification announcements has failed to
insert the announcement. Such power fluctuations occur infrequently
and are remedied by station personnel as soon as they are detected,
virtually always within hours of the triggering event." E-DA-HOE
states that it does not keep records of these outages and noted that
in November 2005, shortly before the LOI Response was filed, the
Station installed a battery back-up system to prevent future
3. Subsequently, the Enforcement Bureau issued a supplemental letter of
inquiry to E-DA-HOE, which included the four six-hour videotapes
received with the Complaint. The Supplemental LOI directed E-DA-HOE to
state whether each tape represented an accurate recording of Station
programming on the date indicated, and requested that E-DA-HOE respond
to the allegation that, on those occasions, the Station failed to
identify itself in accordance with the Commission's requirements.
E-DA-HOE, by counsel, responded to the Supplemental LOI, admitting
that the tapes represented Station programming, but contending that
they contain discrepancies both as to the number of hours recorded and
the dates on which the programming aired. There is no dispute,
however, that the tapes represent at least 24 hours of programming
aired by the Station and that during that time the Station was
identified only twice.
4. Based on our review of the record, we find that E-DA-HOE apparently
violated Section 73.1201 of the Commission's rules at least 22 times.
This rule provides in pertinent part:
(a) When regularly required. Broadcast station identification
announcements shall be made:
(1) At the beginning and ending of each time of operation, and
(2) Hourly, as close to the hour as feasible, at a natural break in
program offerings. Television and Class A television broadcast stations
may make these announcements visually or aurally.
5. Our review of the video tapes confirms that E-DA-HOE failed to
identify its station hourly, as required by our rules, over periods
lasting at least five hours on January 26 and April 1, 2004 and at
least six hours on January 25 and February 26, 2004, for a total of 22
missed announcements. E-DA-HOE asserts that the Station's station
identification omissions were the result of power outages, although it
can only confirm that this was the case on one of the dates in
question. We will accept E-DA-HOE's sworn representations in this
regard; however, we find that the licensee's explanation does not
eliminate E-DA-HOE's responsibility for its malfunctioning equipment.
E-DA-HOE admits that its equipment had failed in the past and that it
knew the reason for those failures, yet the licensee took no remedial
action until shortly before it responded to our LOI.
6. Section 503(b)(1) of the Communications Act of 1934, as amended,
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. The term
"willful" as used in Section 503(b)(1) has been interpreted to mean
simply that the acts or omissions are committed knowingly. The term
"repeated" means that the action was committed or omitted more than
once, or lasts more than one day. Based on the evidence before us, we
find that E-DA-HOE failed to properly broadcast station identification
information, in apparent willful and repeated violation of Section
73.1201 of the Commission's rules.
7. The statutory maximum forfeiture amount for each apparent violation in
this case is $27,500. Pursuant to Section 1.80 of the Commission's
rules, the base forfeiture amount for a violation of the station
identification rule is $1,000. Section 1.80(b)(4) of the Commission's
rules also specifies that, in determining the amount of a forfeiture
penalty, the Commission or its designee will take into account "the
nature, circumstances, extent, and gravity of the violations 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
8. As noted above, E-DA-HOE apparently violated the Commission's station
identification rule for periods lasting at least five to six hours
each on four occasions, for a total of 22 violations of Section
73.1201. If we proposed a forfeiture assessing the base amount of
$1,000 for each apparent violation in this case, E-DA-HOE would face a
$22,000 forfeiture. We find that such an amount would be excessive
here. In similar cases, we have proposed forfeitures based on the
totality of the circumstances, rather than on a per-violation basis.
Based on our review of the circumstances in this case, we find that a
$5,000 proposed forfeiture is appropriate. E-DA-HOE knew its station
identification equipment would break down after electrical storms and
power surges, yet it installed a back-up power system only after it
learned of our investigation. We find that E-DA-HOE's disregard for
its station identification responsibilities was egregious and merits a
forfeiture sufficient to deter it and other licensees from similar
misconduct. Although the nature of E-DA-HOE's apparent violations
might justify a higher proposed forfeiture, however, we decline to do
so in light of the licensee's overall history of compliance with FCC
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, and
1.80 of the Commission's Rules, E-DA-HOE, Inc. is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of $5,000 for
willfully violating Section 73.1201 of the Commission's rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within 30 days of the release date of this Notice
of Apparent Liability for Forfeiture, E-DA-HOE, Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
11. 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 in the
caption. 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.
12. IT IS FURTHER ORDERED that the response, if any, shall be mailed to
William H. Davenport, Chief, Investigation and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12^th
Street, S.W., Suite 4-C330, Washington, D.C. 20554, and must include
the NAL/Acct. No. referenced in the caption.
13. IT IS FURTHER ORDERED that the Commission shall 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 payment of the full amount of this NAL under an
installment plan should be sent to: Associate Managing Director --
Financial Operations, Federal Communications Commission, 445 12th
Street, S.W., Room 1-A625, Washington, DC 20554.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail - Return Receipt
Requested, and regular mail, to Brendan Holland, Esquire, Davis Wright
Tremaine LLP, 1500 K Street, N.W. Suite 450, Washington, D.C.
20005-1272, and to the licensee.
FEDERAL COMMUNICATIONS COMMISSION
William H. Davenport
Chief, Investigations and Hearings Division
See 47 C.F.R. S 73.1201. Generally, the rule requires identification at
the beginning and end of operation and hourly during operation. See also
Establishment of a Class A Television Service, Report and Order, 15 FCC
Rcd 6355, 6366, P 24 (2000) (stating that Class A television stations are
required to comply with station identification requirements of Section
See Complaint received April 13, 2004 ("There are no station I.D.'s except
during morning `local' programming.").
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, to E-DA-HOE, Inc., dated June
30, 2005 ("LOI").
See Letter from Brendan Holland, Esq., Pillsbury Winthrop Shaw Pittman
LLP, counsel for E-DA-HOE, Inc. to David Brown, Esq., Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, FCC, dated
December 6, 2005 ("LOI Response").
See id. at 1-2.
See id. at 2.
See Letter from William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, FCC, to Brendan Holland, Esq., Pillsbury
Winthrop Shaw Pittman LLP, counsel for E-DA-HOE, Inc. dated June 16, 2005
See id. at 1-2.
See Letter from Brendan Holland, Esq., Davis Wright Tremaine LLP, counsel
for E-DA-HOE, Inc. to Elizabeth Valinoti, Esq., Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, FCC, dated
August 16, 2006 at 1-3 ("Supplemental LOI Response").
For example, E-DA-HOE responded that each tape consists of six hours of
programming, rather than eight hours, as stated on the tape labels. See
id. at 2. In addition, the complainant apparently confused the labels for
Tapes 1 and 4. According to E-DA-HOE, based on its review of Station
program logs, Tape 1, which is labeled "January 26, 2004, 4 AM to 12 PM,"
actually consists of programming aired on April 1, 2004 from 4 a.m. to
10:07 p.m. See id. Similarly, E-DA-HOE states that Tape 4, which is
labeled "April 1, 2004, 4 AM to 12 PM," actually consists of programming
aired sometime between January 19-26, 2004, between 4 a.m. and 10:07 a.m.
See id. Given that this material is contemporaneous with the material
intended for Tape 1, we conclude that this programming aired on January
26, 2004, as stated on the complainant's label. Both tapes each include
only one station identification announcement, five hours into the recorded
programming. Tapes 2 and 3 contain six hours of programming aired on
January 25, 2004 between 4 p.m. and 12 a.m. and February 26, 2004 between
12 p.m. and 8 p.m., respectively. E-DA-HOE states that because both of
these tapes consist of network programming or infomercials, the licensee
cannot ascertain the specific hours the material aired. See id. Neither
tape contains any station identification announcement. E-DA-HOE asserts
that the omissions of automated station identification on the tapes
occurred because the tapes were made during interruptions due to power
outages. See id.
47 C.F.R. S 73.1201.
Supplemental LOI Response at 4.
We do not find sufficient support for the Complaint's assertion that the
Station generally failed to identify itself during non-local originated
programming. E-DA-HOE asserts that its equipment, when working, inserts
station identification during non-local programming. Supplemental LOI
Response at 3. The President and majority owner of E-DA-HOE has supported
this statement with a sworn declaration. Id. (Declaration of W. Clinton
Stennett). Having no evidence to the contrary beyond the Complaint's
sweeping assertion, we will accept this sworn statement at face value.
See LOI Response at 2 (describing causes of equipment malfunctions and
station practice of remedying the problems "as soon as they are detected,
virtually always within hours of the triggering event").
See 47 U.S.C. S 503(b)(1).
Section 312(f)(1) of the Communications Act, or 1934, as amended, 47
U.S.C. S 312(f)(1), which applies to violations for which forfeitures are
assessed under Section 503(b) of the Act, provides that "[t]he term
'willful', when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of such
act, irrespective of any intent to violate any provision of this Act or
any rule or regulation of the Commission authorized by this Act...." See
Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC
Rcd 4387 (1991).
Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of Apparent
Liability, 16 FCC Rcd 1359, 1362 P 9 (2001).
Because these violations occurred in early 2004, the statutory maximum
applicable here is $27,500. Prior to the broadcasts at issue, the
Commission amended its rules to increase the maximum penalties to account
for inflation. See Amendment of Section 1.80 of the Commission's Rules,
Order, 15 FCC Rcd 18221 (2000) (effective November 13, 2000). Under the
revised rules, for violations occurring on or after November 13, 2000, the
Commission may propose forfeitures against broadcast licensees of up to
$27,500 per violation. These apparent violations occurred after that
effective date, and prior to a similar adjustment effective September 9,
2004. See Amendment of Section 1.80 of the Commission's Rules, Order, 19
FCC Rcd 10945 (2004) (the current statutory maximum is $32,500 for
violations of this type).
See 47 C.F.R. S 1.80.
47 C.F.R. S 1.80(b)(4).
See Leighton Enterprises, Inc., Notice of Apparent Liability, 20 FCC Rcd
5991 (Enf. Bur. 2005) (proposing $5,000 forfeiture for 10-week period of
station identification violations); Bay Broadcasting Corp., Notice of
Apparent Liability, 15 FCC Rcd 9387 (Enf. Bur. 2000) (proposing $1,500
forfeiture against station that failed to run station identification
announcements for two days).
See Max Media of Montana, L.L.C., Forfeiture Order, 18 FCC Rcd 21375,
21379 P 14 (Enf. Bur. 2003) (forfeiture reduced for unblemished record );
South Central Communications Corp., Forfeiture Order, 18 FCC Rcd 700, 703
P 9 (Enf. Bur. 2003).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission DA 06-2210
Federal Communications Commission DA 06-2210