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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
TURNER BROADCASTING SYSTEM, INC. ) File No. EB-10-IH-0557
Parent Company of CNN America, Inc. and ) NAL Account No.
Courtroom Television Network LLC, 201032080036
Holders of Various Licenses in the )
Wireless and International Services FRN No. 0006873228
Apparent Liability for Forfeiture
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 10, 2010 Released: September 10, 2010
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Turner Broadcasting System, Inc ("Turner"), parent company of CNN
America, Inc. and Courtroom Television Network LLC, holders of various
licenses in the wireless and international radio services, apparently
willfully and repeatedly violated section 310(d) of the Communications
Act of 1934, as amended, and sections 25.119 and 1.948 of the
Commission's rules ("Rules"), in connection with an internal company
reorganization. Pursuant to section 503(b) of the Act, we conclude
that Turner is apparently liable for a forfeiture in the total amount
2. Turner is an Atlanta-based corporation which provides programming for
the cable industry. Among its wholly-owned subsidiaries at the time of
the license transfers at issue was Cable News Network, LP LLLP
("CNN-LP"), holder of 49 licenses in various wireless and
international radio services. According to Turner, on December 31,
2006, its controlling 10 percent general partnership interest in
CNN-LP was contributed to Turner's wholly owned subsidiary, CNN
Investment Company, Inc., which at the time held the remaining 90
percent limited partnership interest. Immediately thereafter, CNN-LP
was merged into CNN Investment Company, Inc., the latter of which was
the surviving entity. CNN Investment Company, Inc. simultaneously
changed its name to Cable News Network, Inc. ("CNN-Inc."). All of
these events occurred on the same day and resulted in a pro forma
transfer of control of CNN-LP, immediately followed by a pro forma
assignment of the 49 subject licenses, to CNN-Inc. Turner did not seek
or obtain prior Commission consent for either transaction.
3. Turner states that in May 2009 it undertook a review of its licensing
portfolio in preparation for another corporate restructuring. This
restructuring contemplated the pro forma assignment of nine of the 49
licenses from CNN-Inc. to Turner, 38 of the licenses to wholly-owned
subsidiary CNN America, Inc. ("CNN America"), and two of the licenses
to wholly-owned subsidiary Courtroom Television Network LLC ("Court
TV"). According to Turner, at this time it discovered that CNN-LP
still held the licenses.
4. Turner thereafter prepared and filed appropriate applications seeking
Commission consent to the assignment of the 49 licenses from CNN-LP to
Turner, CNN America and Court TV, respectively. The Wireless
Telecommunications Bureau and International Bureau subsequently
granted the respective applications pending before them and referred
the matters to the Enforcement Bureau ("Bureau") for investigation.
The Bureau immediately commenced an investigation on March 9, 2010, by
directing a letter of inquiry to Turner requesting information and
documents relating to the referenced transactions. In its response,
dated April 8, 2010, Turner represented, among other things, that it
had incorrectly believed no prior FCC approval was required for the
2006 transactions because the operations and ultimate control of the
affected licenses did not change as a result of the reorganization.
5. 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 has so 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 have been received or have been
sent to the last known address of the person against whom the notice
has been issued, and such person 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.
6. Section 310(d) of the Act states that "[n]o construction permit or
station license, or any rights thereunder, shall be transferred,
assigned, or disposed of in any manner, voluntarily or involuntarily,
directly or indirectly, or by transfer of control of any corporation
holding such permit or license, to any person except upon application
to the Commission and upon finding by the Commission that the public
interest, convenience, and necessity will be served thereby." In
accordance with sections 25.119 and 1.948 of the Rules, a transfer of
a station license or wireless authorization by transfer of control of
any corporation or any other entity holding such license requires
application to and prior approval from the Commission.
7. In the instant case, Turner effectuated an internal corporate
reorganization in 2006 that resulted in the pro forma transfer of
control and pro forma assignment of 49 wireless and international
licenses without prior Commission approval. Turner concedes that it
did not seek or obtain prior Commission consent for either transaction
and that the dereliction continued at least until remedial
applications were filed in 2009. Under the circumstances presented
herein, we conclude that Turner engaged in the unauthorized transfer
of control and unauthorized assignment of the 49 subject licenses in
apparent willful violation of section 310(d) of the Act, and sections
25.119 and 1.948 of the Rules.
8. In determining the amount of a forfeiture penalty, section
503(b)(2)(E) of the Act and section 1.80(a)(4) of the Rules direct the
Commission to take into account "the nature, circumstances, extent,
and gravity of the violation . . . and the degree of culpability, any
history of prior offenses, ability to pay, and such other matters as
justice may require." In this regard, we note that every case presents
a unique set of circumstances and turns on its specific facts.
Pursuant to the Forfeiture Policy Statement and section 1.80 of the
Rules, the base forfeiture amount for a pro forma unauthorized
assignment of license or transfer of control is $1,000. The Commission
has found, however, that while the number of licenses involved should
be considered an aggravating factor, multiplying the base forfeiture
amount by the number of licenses at issue could result in an excessive
forfeiture. We also consider other mitigating and aggravating factors,
such as the nature of the transaction, including whether the transfer
was pro forma or substantial, and the length of time prior to the
filing of corrective applications, if any. In this case, we recognize
that the unauthorized transfer involved 49 licenses, but was pro forma
in nature and resulted from a single transaction. However, the length
of time that it took for Turner to file corrective applications was
clearly excessive. We therefore find the fact that the unauthorized
license transfers occurred as a result of a single transaction is a
mitigating factor. The number of licenses and the period of operation
(over two-and-one-half years) prior to filing corrective applications
are aggravating factors. Based on the precedent cited herein and
applying the factors set forth in section 503(b)(2)(E) of the Act and
section 1.80 of the Rules, we conclude that Turner is apparently
liable for a total forfeiture of $16,000.
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,
0.314 and 1.80 of the Rules, Turner Broadcasting System, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of sixteen thousand dollars ($16,000) for apparently willfully
violating section 310(d) of the Act and sections 25.119 and 1.948 of
10. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
that within thirty (30) days of the release date of this Notice,
Turner SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
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 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. Payments by wire transfer may be made to ABA Number 021030004,
receiving bank Federal Reserve Bank of New York, 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).
Turner will also send electronic notification within forty-eight (48)
hours of the date said payment is made to Gary.Schonman@fcc.gov and
12. The response, if any, to this Notice of Apparent Liability for
Forfeiture must 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.
13. 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
14. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture 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. For answers to questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
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, to Turner Broadcasting System, Inc., Michelle Hylton,
Senior Counsel, One CNN Center, Atlanta, GA 30303-2762.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S: 310(d).
47 C.F.R. S:S: 25.119, 1.948.
See 47 U.S.C. S: 503(b).
See Response of Turner Broadcasting System, Inc. to the Enforcement
Bureau's March 9, 2010 Letter of Inquiry, dated April 8, 2010 at 2 ("LOI
See Id. at 2.
See File Nos. 0003974137, 0003974367, SES-ASG-20090911-01155,
SES-ASG-20090911-01162 and SES-ASG-20090911-01163.
See Wireless Telecommunications Bureau Assignment of License Authorization
Applications, Transfer of Control of Licensee Applications, De Facto
Transfer Lease Applications and Spectrum Manager Lease Notifications,
Designated Entity Reportable Eligibility Event Applications, and
Designated Entity Annual Reports, Public Notice, Report Number 5360 (rel.
Oct. 21, 2009); Satellite Communications Services Information RE: Actions
Taken, Public Notice, Report No. SES-01217 (rel. Feb. 3, 2010).
See Letter from Gary Schonman, Special Counsel, Investigations & Hearings
Division, Enforcement Bureau, FCC, to Junan Gibson, Cable News Network, LP
LLLP, dated March 9, 2010 ("LOI").
See LOI Response at 2.
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) (Southern California Broadcasting Co.).
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).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
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).
47 U.S.C. S: 310(d).
47 C.F.R. S:S: 25.119(d), 1.948.
See LOI Response at 2.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80(a)(4).
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087, 17115 (1997), recons. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement"); 47 C.F.R. S: 1.80.
See, e.g., ARINC, Inc., Order and Consent Decree, 24 FCC Rcd 5325 (Enf.
Bur., IHD 2009). The ARINC Consent Decree required the company to pay a
voluntary contribution of $15,000 for the unauthorized pro forma transfer
of control of 163 licenses, after taking into consideration the fact that
the transfers occurred as a result of a single transaction, the company's
voluntary disclosure, the number of licenses at issue and the two month
period prior to filing corrective applications.
47 U.S.C. S: 503(b)(2)(E); 47 C.F.R. S: 1.80.
47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 10-1648
Federal Communications Commission DA 10-1648