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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Puget Sound Educational TV Inc. ) File Number: EB-06-ST-111
Licensee of Television Station KWDK ) NAL/Acct. No.: 200732980001
Tacoma, Washington ) FRN: 0008778623
Facility ID # 35419 )
)
FORFEITURE ORDER
Adopted: September 25, 2007 Released: September 27, 2007
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of five thousand, six hundred dollars ($5,600) to Puget
Sound Educational TV, Inc. ("PSETV"), licensee of station KWDK, in
Tacoma, Washington, for willfully and repeatedly violating Section
73.1125(a) of the Commission's Rules ("Rules"). On March 2, 2007, the
Enforcement Bureau's Seattle Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $7,000 to PSETV for
failing to maintain a local main studio in its community of license.
In this Order, we consider PSETV's arguments that there were
extenuating circumstances outside of PSETV's control that resulted in
the violation, and that the forfeiture amount should be reduced based
on PSETV's good faith efforts to comply with the Rules, and its
history of compliance.
II. BACKGROUND
2. On Friday, May 12, 2006, agents from the Enforcement Bureau's Seattle
Office attempted to conduct a routine broadcast inspection at the KWDK
main studio at 18014 72nd Avenue South, Kent, Washington, 98188. The
agents discovered that the studio at that address was empty, dark, and
unattended. An agent called the phone number listed in the Seattle
Telephone Directory for KWDK and was connected to a voice mail box for
the station that was full.
3. On Monday, July 17, 2006, the Seattle Office issued a Letter of
Inquiry ("LOI") to PSETV at their address of record, 500 Westgrove
Lane, Colleyville, TX 76034. The LOI was sent via regular and
certified mail. Both copies of the LOI were returned to the Seattle
Office as undeliverable.
4. On Wednesday, July 26, 2006, an agent from the Seattle Office
telephoned the number listed for PSETV. The telephone was answered as
"Daystar." The agent asked to speak with the President of PSETV. The
agent spoke with a representative of PSETV and asked for the location
of the main studio for KWDK. After some research, the representative
provided the address as: 18000 Pacific Highway So., Suite 1007,
Seattle, WA 98188, ("Pacific Highway Location").
5. On Monday, August 21, 2006, at 12:30 p.m., Seattle agents attempted to
inspect the KWDK main studio at the Pacific Highway Location and found
the office locked, dark, and unattended. On Tuesday, August 22, 2006,
at 11:40 a.m., a Seattle agent again attempted to inspect the KWDK
main studio and found the office locked, dark, and unattended. The
agent called the listed telephone number and got a recorded message
that the voice mail box was full.
6. On Wednesday, August 23, 2006, at 9:30 a.m., a Seattle agent again
attempted to inspect the KWDK main studio at the Pacific Highway
Location and found the office locked, dark, and unattended. On
Thursday, August 31, 2006, at 12:45 p.m., a Seattle agent again
attempted to inspect the KWDK main studio and found the office locked,
dark, and unattended.
7. On Tuesday, October 24, 2006, at 12:30 p.m. and at 2:35 p.m., Seattle
agents attempted to inspect the KWDK main studio at the Pacific
Highway Location and found the office locked, dark, and unattended. On
Wednesday, November 8, 2006, at 2:55 p.m., Seattle agents again
attempted to inspect the KWDK main studio and found the office locked,
dark, and unattended.
8. On Wednesday, December 6, 2006, a Seattle agent telephoned the new
number listed for PSETV. The telephone was answered as "Daystar." The
Seattle agent identified himself and asked to speak with someone
responsible for KWDK. Eventually, the agent spoke with the Regulatory
Affairs Manager. The agent asked the Regulatory Affairs Manager if he
was aware of the FCC requirement to maintain a main studio and if KWDK
had an FCC waiver of the requirement to maintain a main studio. The
Regulatory Affairs Manager replied that he was aware of the main
studio requirement and that KWDK did not have a waiver of the rule
requirement to maintain a main studio. The Regulatory Affairs Manager
also stated that the "Master Control" Operator for KWDK had quit a few
months ago and a replacement had just been hired starting on November
30, 2006.
9. On March 2, 2007, the Seattle Office issued a NAL in the amount of
$7,000 to PSETV, finding that PSETV apparently willfully and
repeatedly failed to maintain a local main studio in its community of
license. PSETV filed a response ("Response") on April 30, 2007,
arguing that there were extenuating circumstances outside of PSETV's
control that resulted in the violation, and that the forfeiture amount
should be reduced based on PSETV's good faith efforts to comply with
the Rules, and its history of compliance.
III. DISCUSSION
10. 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 ("Forfeiture
Policy Statement"). In examining PSETV'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.
11. Section 73.1125(a) of the Rules requires the licensee of a broadcast
station to maintain a main studio in its community of license. The
station's main studio must 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 during normal business
hours "[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 full-time managerial and
full-time staff personnel. In addition, there must be "management and
staff presence" on a full-time basis during normal business hours to
be considered "meaningful." 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." The site held out by PSETV as the main studio location for KWDK
had no public access, and no staff presence.
12. PSETV does not deny the facts described in the NAL. However, PSETV
argues that "there were numerous extenuating circumstances, outside of
the control of the licensee which resulted[ed] in the difficulties
experienced by the Enforcement Bureau in conducting its routine
investigation of Station KWDK." PSETV states that it moved the KWDK
main studio location from the Kent location to the Pacific Highway
Location prior to May 12, 2006, which is why the Seattle agent found
the main studio "empty, dark and unattended." PSETV states that if the
agents had gone to the new studio, they would have discovered it
staffed and fully functioning. However, PSETV also states that the
KWDK chief operator resigned prior to the August 21, 2006 inspection
which is why the agents found the main studio at the Pacific Highway
location "locked, dark and unattended." Finally, PSETV states that it
has maintained a meaningful a managerial and staff presence at its
main studio since shortly after the Seattle Office's last attempted
inspection on November 8, 2006. While we sympathize with PSETV's
difficulties, they are not a basis for a reduction of the forfeiture
amount. Once Seattle agents discovered that the KWDK main studio had
been moved to the Pacific Highway Location, they attempted to inspect
the station six times, during regular business hours, between August
21, 2006 and November 8, 2006, a span of almost three months. The main
studio was locked and unattended during each attempted inspection.
Therefore, we decline to reduce the forfeiture amount based on PSETV's
extenuating circumstances.
13. We also decline to reduce the forfeiture amount based on PSETV's
assertion that it came into compliance with the Commission's main
studio staffing requirements shortly after the November 8, 2006,
attempted inspection. We find that this is not a sufficient good faith
effort to comply with the Rules to justify a reduction. Reductions
based on good faith efforts to comply generally involve situations
where violators demonstrated that they initiated measures to correct
or remedy violations, or that they had established compliance programs
in place, prior to the Commission's involvement. In the present case,
PSETV has only asserted that it finally ensured that KWDK was in
compliance with Section 73.1125(a) of the Rules after the sixth
attempted inspection by the Seattle Office.
14. PSETV also appears to argue that it has a history of compliance with
the Commission's Rules. We have reviewed our records and we concur.
Consequently, we reduce PSETV's forfeiture amount from $7,000 to
$5,600.
15. Based on the information before us, having examined it according to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement, we find that reduction of the proposed forfeiture to
$5,600 is warranted.
IV. ORDERING CLAUSES
16. 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, Puget Sound
Educational TV, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $5,600 for willfully and repeatedly violating Section
73.1125(a) of the Rules.
17. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Puget Sound
Educational TV, Inc., at its address of record, and Robert L. Olender,
Esquire, Koerner and Olender, P.C., its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S: 73.1125(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732980001
(Enf. Bur., Western Region, Seattle Office, released March 2, 2007).
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).
Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3218 (1987),
clarified 3 FCC Rcd 5024, 5026 (1988).
2 FCC Rcd at 3217-18.
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified 7 FCC Rcd 6800 (1992).
Id.
7 FCC Rcd at 6802.
PSETV also states that the telephone number for KWDK was also changed at
the time of the move and the old voicemail box for the previous number was
full and not checked. PSETV also indicates that while it notified the
Commission of its change of address on August 4, 2006, the actual change
took place prior to the July 17, 2007, LOI, which resulted in the LOI
being returned to the Commission.
See Radio One Licenses, Inc.,17 FCC Rcd 20408 (EB 2002), recon. denied, 18
FCC Rcd 15964 (2003).
See Tidewater Communications, Inc., 18 FCC Rcd 5524, 5525 (EB 2003).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.1125(a).
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-4030
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Federal Communications Commission DA 07-4030