Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
KM Television of Flagstaff, L.L.C. ) File No. EB-05-SD-179
Licensee of KCFG (TV), Flagstaff, ) NAL/Acct. No. 200632940004
Arizona
) FRN: 0005014667
Facility ID No. 35104
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 20, 2006
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that KM Television of Flagstaff, L.L.C. ("KM TV"), the licensee of
Television Broadcast station KCFG serving Flagstaff, Arizona,
apparently willfully and repeatedly violated Sections 73.3526 of the
Commission's Rules (Rules) by failing to maintain a complete public
inspection file. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that KM Television of
Flagstaff, L.L.C. is apparently liable for a forfeiture in the amount
of ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 11, 2005, an agent of the Enforcement Bureau's San Diego
Office conducted an inspection of the KCFG's public inspection file at
the studio and address of record for KM TV at 2616 N. Steves Blvd.,
Flagstaff, Arizona. While examining the public inspection file, the
agent observed that the file was not complete. Specifically, there
were no TV issues/program lists for the present year or for the
license term and there were no records concerning commercial limits
during children's programming. KCFG's current license term expires
October 1, 2006.
III. DISCUSSION
3. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully 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) has been interpreted to
mean simply that the acts or omissions are committed knowingly. The
term "repeated" means the commission or omission of such act more than
once or for more than one day.
4. Section 73.3526(a)(2) of the Rules requires that every licensee of a
TV station licensee shall maintain a public inspection file containing
the material, relating to that station, described in paragraphs (e)(1)
through (e)(11) and paragraphs (e)(13) through (e)(16) of this
section. Further, as required by Section 73.3526(b) the location of
the public file shall be maintained at the station's main studio
location. The public inspection file for KCFG was found at the main
studio in Flagstaff, Arizona.
5. Section 73.3526(e)(11)(i) of the Rules requires licensees to place in
their public inspection file a list for each calendar quarter, to be
filed by the tenth day of the succeeding calendar quarter, a list of
programs that have provided the station's most significant treatment
of community issues during the preceding three month period. This list
is known as the TV issues/programs list. The public inspection file
for KCFG contained no issues/programs lists for any calendar quarter
for any year during the current license period. Therefore, KM TV
failed to comply with Section 73.3526(e)(11)(i) of the Rules.
6. Section 73.3526(e)(11)(ii) of the Rules requires that a commercial TV
station maintain records sufficient to permit substantiation of the
station's certification, in its license renewal application, of
compliance with the commercial limits on children's programming
established in Section 73.670 of the Rules. The records for each
calendar quarter must be filed in the station's public inspection file
by the tenth day of the succeeding calendar quarter (e.g., January 10
for the quarter October - December, etc.). These records shall be
retained until final action has been taken on the station's next
license renewal application. The public inspection file for KCFG
contained no records concerning KCFG's compliance with the commercial
limits for children's programming. Therefore, KM TV failed to comply
with Section 73.3526(e)(11)(ii) of the Rules.
7. KM TV was aware of the requirement to have a public inspection file,
given the fact it maintained such a file, albeit an incomplete one.
Therefore KM TV's violation is willful. No evidence could be found to
indicate that any of the materials missing from the public inspection
file were ever maintained for the duration of the license period.
Therefore, KM TV's violation is repeated. Where lapses occur in
maintaining the public inspection file, neither the negligent acts nor
omissions of station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify a licensee's
rule violation.
8. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines ("Forfeiture Policy Statement"), and Section 1.80 of the
Rules, the base forfeiture for public file violations is $10,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that KCFG is apparently liable for a $10,000
forfeiture.
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 Commission's Rules, KM Television of Flagstaff,
L.L.C. is hereby NOTIFIED of this APPARENT LIABILITY FOR FORFEITURE in
the amount of ten thousand dollars ($10,000) for violation of Section
73.3526 of 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 for forfeiture, KM Television of
Flagstaff, L.L.C. 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 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. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, 4542 Ruffner Street,
Room 370, San Diego, California 92111 and must include the NAL/Account
No. referenced in the caption.
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 for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 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 KM Television of Flagstaff, L.L.C.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director
San Diego District Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.3526.
47 U.S.C. S 503(b).
47 C.F.R. S 73.3526(e)(11)(i).
47 C.F.R. S 73.3526(e)(11)(ii).
KCFG is currently silent and is operating under a special temporary
authority ("STA") as it repairs a satellite earth station that was damaged
by high winds in February 2006. See BLSTA-20060208AMB, granted February
28, 2006. This STA expires on August 17, 2006.
Section 312(f)(1) of the Act, 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., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S 73.3526(a)(2).
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(e)(11)(i).
47 C.F.R. S 73.3526(e)(11)(ii). In the Children's Television Act of 1990,
Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. Sections
303a, 303b and 394, Congress directed the Commission to adopt rules
limiting the amount of commercial matter that television stations may air
during children's programming, and to consider in its review of television
license renewals the extent to which the licensee has complied with such
commercial limits. Accordingly, the Commission adopted Section 73.670 of
the Rules, 47 C.F.R. S 73.670, which limits the amount of commercial
matter which may be aired during children's programming to 10.5 minutes
per hour on weekends and 12 minutes per hour on weekdays. Children's
Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6
FCC Rcd 5093, 5098 (1991). The commercial limitations became effective on
January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530
(1991). See Libco, Inc., 2005 WL 2778821 (FCC) (MB 2005).
47 C.F.R. S 73.3526(e)(11)(ii).
47 C.F.R. S 73.3526(e)(11)(ii)
See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S
1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.3526.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
3
Federal Communications Commission