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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB-06-IH-2309
Indianapolis Community Television, Inc. ) NAL/Acct. No.
Licensee of Noncommercial Television )
Station WDTI(TV), Indianapolis, Indiana Facility ID No. 7908
NoTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 15, 2009 Released: April 15, 2009
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Indianapolis Community Television, Inc. ("ICTI"), licensee of
noncommercial television station WDTI(TV), Indianapolis, Indiana,
apparently willfully and repeatedly violated Section 73.1125 of the
Commission's rules by failing to maintain a publicly accessible main
studio, a meaningful management and staff presence at its main studio,
a listed local telephone number, and failing to notify the Commission
of the relocation of its main studio. As discussed below, based upon
the facts and circumstances of this case, we find that ICTI is
apparently liable for a forfeiture in the amount of $9,000.
2. In response to a complaint alleging that Station WDTI(TV) did not have
a main studio, an agent from the Commission's Chicago Office inspected
the Station on August 14, 2006, and discovered that the Station's
transmitter was surrounded by a locked fence in a windowless brick
building located on the campus of Butler University. Butler University
retains ownership of the Station's antenna and transmitter site and
leases antenna and transmitter space to ICTI. When the agent found the
transmitter site locked and no personnel present, he contacted the
Director of Media Arts at Butler University, who was able to unlock
the gate surrounding the transmitter site to permit the agent access.
The agent also obtained from Butler's Director of Media Arts the name
and telephone number of David Fort, an employee of Station WDTI(TV).
The agent subsequently contacted David Fort, who confirmed that the
Station's only physical presence in Indianapolis is the Butler
University transmitter site and that Station WDTI(TV) had no office,
studio space, or other main studio location in the Indianapolis area.
3. On April 13, 2007, the Bureau issued a Letter of Inquiry ("LOI") to
ICTI requesting information and materials relating to the studio's
location and staffing. ICTI responded to the LOI on June 18, 2007.
4. In its Response, ICTI stated that it acquired Station WDTI(TV) from
Butler University on or about August 25, 2004. At that time, the main
studio location was at 770 West Hampton in Indianapolis, Indiana.
Butler University, however, retained that studio space. Thus, ICTI
stated that, on or about September 14, 2004, the Butler University
transmitter site located at 4307 Lester in Indianapolis, Indiana was
designated as the station's main studio. According to ICTI, the locked
transmitter site served as the Station's main studio; the Station's
public inspection file was kept at that site; David Fort, the
Station's Manager and Chief Operator, was available at that site from
8:00 a.m. to 5:00 p.m., Monday through Friday; and the Station had a
local telephone number, although not listed locally. ICTI further
stated that it "has been looking at various locations to relocate its
main studio; however, it has experienced significant delays in
commencing construction of its DTV build-out which has affected its
relocation." ICTI also stated that it anticipated relocating the main
studio before November 18, 2007.
5. Despite a specific direction in the LOI that the inquiries were
continuing in nature, the Bureau did not receive further information
or documents from ICTI concerning its anticipated relocation of the
Station's main studio and, accordingly, issued a supplemental LOI to
ICTI. In its Supplemental Response, ICTI states that the Station's
main studio was relocated to 5610 Crawfordsville Road, Indianapolis,
Indiana on July 27, 2007. ICTI's response to the Supplemental LOI also
states that the Station's relocated main studio is open to the public
Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m.,
that the Station has a local telephone number that is listed locally,
and that the Station's public inspection file is kept at the relocated
main studio. In addition, ICTI states that the relocated main studio
is staffed by the Station's Manager and Chief Operator, who is a
6. Under Section 503(b)(1) of the Act, 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. 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. 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, and the
Commission so has interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. "Repeated" means that the act was
committed or omitted more than once, or lasts more than one day. In
order to impose such a penalty, the Commission must issue a notice of
apparent liability, the notice must be received, and the person
against whom the notice has been issued must have an opportunity to
show, in writing, why no such penalty should be imposed. The
Commission will then issue a forfeiture if it finds, by a
preponderance of the evidence, that the person has willfully or
repeatedly violated the Act or a Commission rule. As described in
greater detail below, we conclude under this procedure that ICTI is
apparently liable for a forfeiture in the amount of $9,000 for its
apparent willful and repeated violation of the Commission's main
A. ICTI's Apparent Willful and Repeated Violation of the Main Studio
7. Section 73.1125(a) of the Commission's rules requires the licensee of
a broadcast station to maintain a main studio in order to serve the
needs and interests of the residents of the station's community of
license. In particular, the main studio must be accessible to the
public "[t]o assure meaningful public participation in [the
Commission's] licensing process." To fulfill these functions, a
station must, among other things, maintain a meaningful managerial and
staff presence at its main studio. The Commission has defined a
minimally acceptable "meaningful presence" as at least one full-time
managerial and one full-time staff person who are present during
normal business hours. Although management personnel need not be
"chained to their desks" during normal business hours, they must
"report to work at the main studio on a daily basis, spend a
substantial amount of time there and . . . use the studio as a home
base." Section 73.1125(e) also requires every broadcast station to
maintain and list a local or toll-free telephone number in its
community of license. Furthermore, Section 73.1125(d)(1) permits a
licensee to relocate a station's main studio to a site within certain
permissible geographic boundaries but requires the licensee to notify
the Commission of such relocation.
8. ICTI's decision in September 2004 to designate its locked,
inaccessible transmitter site as Station WDTI(TV)'s main studio is
contrary to the objectives underlying the main studio rule, to
facilitate meaningful public participation in the Commission's
licensing process and to serve the needs and interests of its
community of license. It is implausible that any licensee would make a
determination that such a main studio location fulfills these
obligations. The site held out by ICTI as a main studio for Station
WDTI(TV) from September 14, 2004 until July 27, 2007 had no public
access because the transmitter site is surrounded by a locked chain
link fence and is located adjacent to a locked access road. In
addition, the local telephone number of the main studio was not listed
during this period. ICTI, however, has demonstrated that the Station's
relocated main studio on Crawfordsville Road is fully accessible to
the public. It is located in an office suite at a location where there
are other corporate offices. Moreover, according to ICTI's
Supplemental LOI response, the Station's local telephone number was
listed when the main studio was relocated to its current address.
9. Although ICTI employed a full-time manager, he was not present at the
transmitter site at the time of the August 2006 inspection and no
other staff was present. Moreover, it appears that apart from a
full-time manager, ICTI does not currently employ any full-time staff
other than a manager. A station must maintain management and staff
presence on a full-time basis during normal business hours to be
considered "meaningful," and both management and staff presence is
required. Under these circumstances, ICTI fails to provide the
required meaningful management and staff presence at its main studio.
We will require ICTI to report to the Commission the steps that it has
taken to comply with staffing requirements at the main studio.
10. ICTI failed to maintain an accessible main studio for Station WCTI(TV)
on the date of the inspection. It appears that these circumstances
commenced on September 14, 2004, soon after ICTI acquired the
Station's license, and persisted until the Station's main studio was
relocated in July 2007. ICTI also admits that it did not notify the
Commission that the Station's main studio had been relocated, as
required by the rule. As a result of these facts, we find that ICTI
has apparently willfully and repeatedly violated Section 73.1125 of
the Commission's rules.
B. Proposed Forfeiture
11. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Commission's rules set a base forfeiture amount of $7,000 for
violation of the main studio requirements. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, history of
prior offenses, ability to pay, and other such matters as justice may
require. Based upon the facts and circumstances presented in this
case, we conclude that an upward adjustment of the base forfeiture
amount is warranted because the violations were egregious and
persistent. For a period of almost three years, the main studio was
inaccessible to the public and no local telephone number was listed.
ICTI has also continuously for more than four years failed to maintain
a meaningful staff presence at the station's main studio. We therefore
propose a forfeiture in the amount of $9,000 for ICTI's willful and
repeated violation of Section 73.1125.
IV. ordering clauses
12. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules,
Indianapolis Community Television, Inc. is hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of $9,000 for
willfully and repeatedly violating Section 73.1125 of the Commission's
13. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty (30) days of the release of this NAL,
Indianapolis Community Television, Inc. SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
14. IT IS FURTHER ORDERED that within thirty days of the release of this
NAL that Indianapolis Community Television Inc. SHALL FILE a written
statement concerning the steps that it has taken to come into
compliance with the staffing requirements for its main studio. Such
statement must be submitted in the form of an affidavit or declaration
in accordance with Section 1.16 of the Commission's rules, must be
mailed to the Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, to the
attention of: Hillary S. DeNigro, Chief, Investigations and Hearings
Division, Enforcement Bureau, Room 4-C330, and must include the File
number and NAL/Acct. No. referenced above.
15. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, 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, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Indianapolis Community Television, Inc.
shall also send electronic notification on the date said payment is
made to: Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Rebecca.Hirselj@fcc.gov, and Melanie.Godschall@fcc.gov.
16. The response, if any, shall be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C330,
Washington, D.C. 20554, and MUST INCLUDE the NAL/Acct. No. referenced
above. If any response is filed, Indianapolis Community Television,
Inc. shall also, to the extent practicable, transmit a copy of the
response via email to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Rebecca.Hirselj@fcc.gov, and Melanie.Godschall@fcc.gov.
17. 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 ("GAAP"); 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 submitted.
18. IT IS FURTHER ORDERED that a copy of this NAL shall be sent, by
Certified Mail - Return Receipt Requested, to Indianapolis Community
Television, Inc., 3901 Highway 121 South, Bedford, Texas 76021 and to
its counsel, Robert L. Olender, Esquire, Koerner & Olender, P.C.,
11913 Grey Hollow Court, North Bethesda, Maryland 20852-5706.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
See 47 C.F.R. S: 73.1125.
See Letter from Hillary S. DeNigro, Chief, Investigations and Hearings
Division, Enforcement Bureau to Indianapolis Community Television, Inc.,
dated April 13, 2007 ("LOI").
See Letter from Robert L. Olender, Esquire, Koerner & Olender, P.C.,
Counsel for Indianapolis Community Television, Inc., dated June 18, 2007
See id. at 1.
See id. at 2-3.
See id. at 1.
See LOI at 6.
See Letter from Rebecca A. Hirselj, Assistant Chief, Investigations and
Hearings Division to Robert L. Olender, Esquire, Koerner & Olender, P.C,
Counsel for Indianapolis Community Television, Inc., dated February 25,
2009 ("Supplemental LOI"). We note that ICTI's failure to timely
supplement its LOI response concerning its July 27, 2007 relocation of the
Station's main studio itself might constitute a failure to follow the
Bureau's direction and therefore could itself result in sanctions. In the
future such conduct could result in a forfeiture.
See Letter from Marcus D. Lamb, President, Indianapolis Community
Television, Inc. to Marlene H. Dortch, Secretary, Federal Communications
Commission, dated March 6, 2009 ("Supplemental Response").
See Supplemental Response at 2-3.
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991).
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
See Southern California Broadcasting Co., 6 FCC Rcd at 4388 P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362 P: 9.
See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 P: 4 (2002) (forfeiture paid).
See Review of the Commission's Rules Regarding the Main Studio and Local
Public Inspection Files of Broadcast Television and Radio Stations, Report
and Order, 13 FCC Rcd 15691 (1998), recons. granted in part, 14 FCC Rcd
Main Studio and Program Origination Rules, Report and Order, 2 FCC Rcd
3215, 3218 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
Main Studio and Program Origination Rules, 2 FCC Rcd at 3217-18.
See Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991)
("Jones Eastern"), clarified, 7 FCC Rcd 6800 (1992).
Jones Eastern, 7 FCC Rcd at 6802.
See 47 C.F.R. S: 1125(e); B&C Kentucky, LLC, Memorandum Opinion and Order
and Notice of Apparent Liability for Forfeiture, 16 FCC Rcd 9305, 9307 P:
7 (Mass Med. Bur., Video Services Div. 2001) (citing Main Studio and
Program Origination Rules, 2 FCC Rcd 3215, 3217-18 (1987), clarified 3
FCC Rcd 5024, 5026 (1988)) (broadcast station must, among other things,
have a listed local or free long distance telephone number in order to
comply with the main studio requirements).
See 47 C.F.R. S: 73.1125(d)(1).
See Response at 3.
See Supplemental Response at Attachment A.
See Supplemental Response at 3 and Attachment C.
See Response at 2-3; Supplemental Response at 2-3.
See Jones Eastern, 7 FCC Rcd 6800 (clarifying that compliance with the
"meaningful management and staff presence" component of the main studio
rule is fulfilled by employing one full-time office worker and a full-time
manager who reports to the main studio, using it as a home base and
spending substantial amount of time there). See also, First Baptist
Church, Inc.(Station WAKJ(FM)), Forfeiture Order, 23 FCC Rcd 919, 921 P:P:
9-11 (Enf. Bur, South Central Region 2008) (non-commercial FM station not
in compliance with main studio rule because it did not maintain full-time
manager and staff personnel at the main studio).
See Supplemental LOI Response at 2. See also, 47 U.S.C. S: 73.1125(d)(1).
See 47 C.F.R. S: 1.80; The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087,
17114 (1997), recons. denied 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
See, e.g., B&C Kentucky, LLC, 16 FCC Rcd at 9311-12 P:P: 19, 21(upward
adjustment of $1,500 proposed for licensee's failure to maintain a main
studio as required by Section 73.1125 where, for more than one year, the
main studio was located at inaccessible structure housing the station's
transmitter without a meaningful staff presence).
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S:S: 0.111, 0.311 and 1.80(f)(4).
See 47 C.F.R. S: 73.1125.
See 47 C.F.R. S: 1.16.
(Continued from previous page)
Federal Communications Commission DA 09-830
Federal Communications Commission DA 09-830