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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-08-IH-5190
Shop at Home Holdings, Inc.
) NAL/Acct. No. 201032080015
Licensee of Various Satellite Earth
Stations ) FRN No. 0017977729
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 4, 2010 Released: January 4, 2010
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Shop at Home Holdings, Inc. ("Shop at Home Holdings" or the
"Company") acquired the licenses for, and operated, two satellite earth
stations, without obtaining prior Commission consent, in apparent willful
and repeated violation of Sections 310(d) of the Communications Act of
1934, as amended (the "Act"), and 25.119 of the Commission's Rules. Based
on our review of the facts and circumstances surrounding this matter, we
find that Shop at Home Holdings apparently is liable for a forfeiture in
the total amount of $16,000.
2. Section 310(d) of the Act provides that no station license may be
"transferred, assigned, or disposed of in any manner, voluntarily or
involuntarily, directly or indirectly, or by transfer of control of
any corporation holding [the] license," without prior Commission
consent. Section 25.119 of the Commission's rules imposes similar
requirements with respect to satellite earth stations.
3. On June 21, 2006, Shop at Home Holdings, a subsidiary of America's
Collectibles Network, Inc., acquired the licenses for satellite earth
stations E980222 and E980223 from Shop at Home Network, LLC, a
subsidiary of the E.W. Scripps Company, as part of a larger corporate
transaction between the entities. The parties did not seek Commission
consent to the assignment of the two station licenses prior to
consummating the transaction, and Shop at Home Holdings subsequently
operated the stations from June 21, 2006, through March 7, 2008. From
March 7, 2008 until August 2008, Shop at Home Holdings maintained the
two earth stations as emergency back-up facilities, but did not
4. Shop at Home Holdings states that it learned for the first time in
early July 2008 of the need to obtain prior Commission consent to the
assignment of the earth stations, more than two years after acquiring
the two station licenses and in the course of preparing license
renewal applications for the licenses. The company thereafter filed an
appropriate remedial application belatedly seeking Commission consent
to the assignment of the two station licenses. The International
Bureau subsequently granted the application on January 5, 2009, and
referred the matter to the Enforcement Bureau which commenced an
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)
clarifies that the 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 repeated. "Repeated" means that the act was
committed or omitted more than once, or lasts more than one day.
6. Turning to the instant case, Shop at Home Holdings concedes that it
failed to timely apply for Commission consent to the assignment of the
satellite earth station licenses. Moreover, the record reveals that Shop
at Home Holdings operated the two stations for nearly two years without
authority. It is of no consequence that Shop at Home Holdings may have
been unaware of the Commission's requirements at the time it acquired the
two station licenses in 2006. Under the circumstances and particularly in
light of Shop at Home Holdings' admission of wrongdoing, we find that Shop
at Home Holdings failed to obtain Commission consent to the assignment of
the two earth station licenses, in apparent willful and repeated violation
of Section 310(d) of the Act and 25.119 of the Commission's Rules.
7. Section 503(b)(1) of the Act provides that any person that willfully or
repeatedly fails 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 503(b)(2)(B) of the Act
authorizes the Commission to assess a forfeiture of up to $150,000 for
each violation or each day of a continuing violation, up to a statutory
maximum of $1,500,000 for a single act or failure to act. In determining
the appropriate forfeiture amount, we consider 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."
8. The Commission's Forfeiture Policy Statement and implementing rules
prescribe a base forfeiture of $8,000 for an unauthorized assignment of a
Commission license. Such forfeiture amount may be adjusted upward or
downward depending upon the existence of aggravating or mitigating
factors. In the instant case, we have taken into consideration Shop at
Home Holding's failure over a period of more than two years to file
corrective applications. On balance and after applying the factors set
forth in Sections 503(b)(2)(E) of the Act and 1.80 of the Commission's
Rules, we find that a forfeiture in the amount of $16,000 is appropriate
in this instance.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b), and section
1.80 of the Commission's rules, 47 C.F.R. S: 1.80, that Shop at Home
Holdings, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of $16,000 for willfully and repeatedly violating
the Act and the Commission's rules.
10. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Shop at Home Holdings, 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 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. Payment 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). Shop at Home Holdings, Inc. will also send electronic
notification within forty-eight (48) hours of the date said payment is
made to Hillary.DeNigro@fcc.gov.
12. The response, if any, to this NOTICE OF APPARENT LIABILITY 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 documentation submitted.
14. Requests for payment of the full amount of this Notice of Apparent
Liability 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: ARINQUIRIES@fcc.gov.
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 Joseph E. Dunne III, Counsel for Shop at Home Holdings, Inc., P.O. Box
9203, Durango, CO 81302-9203.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations & Hearings Division
47 U.S.C. S: 310(d).
47 C.F.R. S: 25.119.
47 U.S.C. S: 310(d).
47 C.F.R. S: 25.119.
See Letter from Joseph E. Dunne III, Counsel to Shop at Home Holdings,
Inc., to Marlene H. Dortch, Secretary, FCC, dated Sept. 10, 2009 ("LOI
Response") at Tabs 4, 5, 6. America's Collectibles Network, Inc. and the
E.W. Scripps Company are not related entities. See Letter from Kathleen A.
Kirby, Counsel to Shop at Home Network, LLC, to Karl Kensinger and
Jeanette Spriggs, International Bureau, Satellite Division, FCC, dated
August 26, 2008, at 2.
LOI Response at Tab 6.
Id. at Tab 7.
Id. at Tab 6.
Application for Assignment of Earth Stations from Shop at Home Network,
LLC to Shop at Home Holdings, Inc., File No. SES-ASG-20080724-00987.
Public Notice, Report No. SES-01101 (rel. Jan. 7, 2009) (File No.
Letter from Trent B. Harkrader, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, FCC, to Charles A. Wagner, Shop at Home
Holdings, Inc., dated July 29, 2009.
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).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Application for Review of 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, 16 FCC Rcd at 1362, P: 9.
LOI Response at Tab 6.
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(2).
47 U.S.C. S: 503(b)(2)(B); see also 47 C.F.R. S: 1.80(b)(2); Amendment of
Section 1.80(b) of the Commission's Rules, Adjustment of Forfeiture Maxima
to Reflect Inflation, Order, 15 FCC Rcd 18221 (2000).
See 47 C.F.R. S: 1.80; Matter of 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, 17113 (1997)
("Forfeiture Policy Statement").
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 10-3
Federal Communications Commission FCC 99-xx