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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
KM Television of Flagstaff, L.L.C. ) File Number: EB-05-SD-179
Licensee of KCFG(TV) ) NAL/Acct. No.: 200632940004
Flagstaff, Arizona ) FRN: 0005014667
Facility ID No. 35104 )
)
ORDER
Adopted: March 14, 2007 Released: March 16, 2007
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Order, we cancel a monetary forfeiture in the amount of ten
thousand dollars ($10,000) to KM Television of Flagstaff, L.L.C. ("KM
TV"), licensee of Television station KCFG serving Flagstaff, Arizona,
for willful and repeated violation of Section 73.3526 of the
Commission's Rules ("Rules"). On March 20, 2006, the Enforcement
Bureau's San Diego Office issued a Notice of Apparent Liability for
Forfeiture ("NAL") in the amount of $10,000 to KM TV for failing to
maintain a complete public inspection for KCVG. In this Order, we
consider KM TV's arguments that the proposed forfeiture amount exceeds
other forfeitures proposed to broadcast stations under similar
scenarios; that KM TV has a history of compliance with the
Commission's Rules; and that KM TV does not have sufficient revenue to
pay the forfeiture. While we cancel the forfeiture for a demonstrated
inability to pay, we admonish KM TV for its willful and repeated
violation of Section 73.3526 of the Commission's Rules.
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 (which expired on October 1, 2006) and there were no
records concerning commercial limits during children's programming.
KCFG's most recent renewal application was granted on October 16,
2006.
3. On March 20, 2007, the San Diego Office issued a NAL in the amount of
$10,000 to KM TV, finding that KM TV apparently willfully and
repeatedly failed to maintain a complete public inspection file for
KCFG. KM TV filed a response to the NAL on April 17, 2006
("Response"). In its Response, KM TV argues that the proposed
forfeiture should be reduced or cancelled because the amount exceeds
other forfeiture amounts proposed to broadcast stations under similar
scenarios; that KM TV has a history of compliance with the
Commission's Rules; and that KM TV has demonstrated an inability to
pay the forfeiture.
III. DISCUSSION
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining KM
TV's response, Section 503(b) of the Act requires that the Commission
take into account 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 other
such matters as justice may require.
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. 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.
6. KM TV does not deny the violation as detailed by the San Diego Office,
but argues that in similar situations, the Commission's Media Bureau
proposed forfeitures of $4,000 to stations for violations of the
public file requirements concerning issues/programs lists and records
on commercial limits in children's programming. To support its
argument, KM TV cites to Telefutura Orlando, Inc. (WOTF-TV) and UPN
Television Stations, Inc. (WUPL(TV)). We have reviewed both cases and
while we agree with KM TV that both cases involve the two rules that
KM TV was found to have violated, in neither case did the violation
occur for the entire license term. In Telefutura Orlando, Inc., the
Media Bureau proposed a $4,000 forfeiture for WOTF-TV because its
public inspection was missing required documents for three quarters of
its license term. In UPN Televisions Stations, Inc., the Media Bureau
proposed a $4,000 forfeiture for WUPL(TV) because its public
inspection file was missing required documents for four quarters of
its license term. We note that in both cases, the violations were
discovered by the licensees and reported to the Commission. In the
present case, KM TV was unaware of the violation until it was notified
by the San Diego agent. Additionally KCFG public inspection file was
missing required documents for the entire license term until it was
inspected by the San Diego agent. Finally, we note that the Media
Bureau has also proposed forfeitures of $10,000 for stations who have
self-reported their failure to maintain the appropriate documents
concerning the issues/program lists or certifications concerning
commercial limits on children's programming for multiple years in
their public inspection files. We are therefore not persuaded by this
argument to reduce the forfeiture amount.
7. KM TV also argues that it has a history of overall compliance with the
Commission's Rules. We have reviewed our records and we concur.
Consequently, we reduce KM TV's forfeiture amount from $10,000 to
$8,000.
8. KM TV also argues that it is not able to pay the forfeiture amount
because of its minimal gross revenues and supplies financial data for
the three calendar years prior to the NAL. In analyzing a financial
hardship claim, the Commission generally has looked to gross revenues
as a reasonable and appropriate yardstick in determining whether a
licensee is able to pay the assessed forfeiture. Upon review of the
evidence presented, we find cancellation of the proposed forfeiture is
warranted in light of the financial documents provided by KM TV. While
we cancel the proposed forfeiture, we admonish KM TV for its willful
and repeated violation of the public inspection file rule as set forth
in Section 73.3526 of the Commission's Rules.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, that the proposed
forfeiture in the amount of ten thousand dollars ($10,000) issued to
KM Television of Flagstaff, L.L.C, licensee of KCFG(TV), Flagstaff,
Arizona, in the March 20, 2006 Notice of Apparent Liability for
willful and repeated violations of Sections 73.3526 of the Rules IS
CANCELLED.
10. IT IS FURTHER ORDERED that KM Television of Flagstaff, L.L.C, licensee
of KCFG(TV), Flagstaff, Arizona, IS ADMONISHED for its willful and
repeated violations of Section 73.3526 of the Rules.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to KM
Television of Flagstaff, L.L.C., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632940004
(Enf. Bur., Western Region, San Diego Office, released March 20, 2006).
47 C.F.R. S 73.3526(e)(11)(i).
47 C.F.R. S 73.3526(e)(11)(ii).
See File No. BRCT-20060531ALF, accepted June 2, 2006 and granted October
16, 2006 ("KCFG Renewal Application"). In that application, KM TV
acknowledged that, prior to the inspection by the San Diego agent August
2005, "KCFG did not timely place and maintain in its local public
inspection file the required quarterly issues/programs lists nor records
regarding commercial limits during childrens [sic] programming, since
first going on the air as a new station on December 18, 2000." KCFG
Renewal Application at Exhibit 17.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(E).
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).
20 FCC Rcd 20051 (MB 2005).
20 FCC Rcd 15807 (MB 2005)
See supra n.5.
See e.g., WLBB Broadcasting, LLC, DA 07-555, 2007 WL 470423 (rel. February
14, 2007); Ramar Broadcasting II, LTD., DA 07-556, 2007 WL 470424 (rel.
February 14, 2007); Lesea Broadcasting of Tulsa, Inc., DA 07-603, 2007 WL
437852 (rel. February 9, 2007).
See PLB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
Federal Communications Commission DA 07-1312
1
4
Federal Communications Commission DA 07-1312