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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No. EB-08-SE-985
Journal Broadcast Corporation
) NAL/Acct. No. 200932100075
Earth Station call signs E850092 and
E980274 ) FRN # 0002710192
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 6, 2009 Released: August 7, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Journal
Broadcast Corporation ("Journal Broadcast"), licensee of earth
stations E850092 and E980274, apparently liable for a forfeiture in
the amount of twenty-five thousand dollars ($25,000) for operating its
stations without Commission authority, in apparent willful and
repeated violation of Section 301 of the Communications Act of 1934,
as amended ("Act") and Section 25.102 of the Commission's Rules
("Rules"), and for failing to file timely renewal applications for its
two earth stations in apparent willful and repeated violation of
Section 25.121(e) of the Rules.
II. background
2. On January 1, 2003, Journal Broadcast was granted a license to operate
a fixed satellite earth station under call sign E850092. Under the
terms of its license, Journal Broadcast's authorization for its earth
station expired on February 6, 2008. On July 31, 1998, Journal
Broadcast was granted a license to operate a transmit/receive
temporary fixed satellite earth station under call sign E980274. Under
the terms of that license, Journal Broadcast's authorization for its
earth station expired on July 31, 2008. Thereafter, on September 22,
2008, Journal Broadcast became aware that it had failed to file a
renewal application for each station and that its licenses had
expired. On September 24, 2008, Journal Broadcast submitted an
application for special temporary authority ("STA") for each station
to operate. On September 28 and 29, 2008, respectively, the
International Bureau granted Journal Broadcast's STA requests.
3. On October 10, 2008, Journal Broadcast filed an application for
permanent authorization for earth station E980274, which was granted
on November 26, 2008. On December 3, 2008, Journal Broadcast filed an
application for permanent authorization for earth station E850092,
after a series of STA authorizations during the required frequency
coordination process. The International Bureau granted that license on
January 12, 2009.
4. Because it appeared that Journal Broadcast operated earth stations
E850092 and E980274 without authorization, the International Bureau
referred this case to the Enforcement Bureau for investigation and
possible enforcement action. On November 24, 2008, the Enforcement
Bureau's Spectrum Enforcement Division ("Division") issued Journal
Broadcast a letter of inquiry ("LOI") to investigate whether Journal
Broadcast operated the earth stations beyond the expiration of its
licenses.
5. In its response to the LOI filed December 24, 2008, Journal Broadcast
admitted that it failed to timely renew its two earth station licenses
and that it continued to operate stations E850092 and E980274 without
Commission authority until at least September 24, 2008, the date of
the STA requests, because it was unaware that its licenses had
expired. Journal Broadcast stated that it first became aware that its
licenses had expired on September 22, 2008, at which time it took
immediate steps to request STAs to operate its stations consistent
with the parameters contained in the expired authorizations, pending
the submission and grant of new license applications.
III. discussion
6. Section 301 of the Act and Section 25.102(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by an earth station except under and in
accordance with a Commission granted authorization. Section 25.121(c)
of the Rules provides that the license term for an earth station is
specified in the instrument of authorization. Section 25.121(e) of the
Rules requires the licensee of an earth station to file its renewal
application "no earlier than 90 days, and no later than 30 days,
before the expiration date of the license." Absent a timely filed
renewal application, an earth station license automatically terminates
at the end of the license period.
7. Under the terms of its licenses, Journal Broadcast's authorization to
operate earth stations E850092 and E980274 expired on February 6, 2008
and July 31, 2008, respectively. As a Commission licensee, Journal
Broadcast is charged with the responsibility of knowing and complying
with the terms of its authorizations, the Act and the Rules. Journal
Broadcast admitted that it failed to file its renewal applications
during the requisite 30-90 day period prior to the respective
expiration dates. Moreover, Journal Broadcast admitted that it
continued to operate the stations after the expiration of its
licenses, a situation that Journal Broadcast did not seek to remedy
until September 24, 2008, when Journal Broadcast filed its requests
for STAs. Thus, it appears that Journal Broadcast violated Section
25.121(e) of the Rules by failing to timely file a renewal application
for each station, and violated Section 301 of the Act and Section
25.102(a) of the Rules by continuing to operate its stations without
Commission authority.
8. Section 503(b) of the Act and Section 1.80(a) of the Rules provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's
rules, and "repeated" means more than once. Based on the record before
us, it appears that Journal Broadcast's violations of Section 301 of
the Act and of Sections 25.102(a) and 25.121(e) of the Rules were
willful and repeated.
9. In determining the appropriate forfeiture amount, Section 503(b)(2)(E)
of the Act directs us to consider factors, such as "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." Having considered the statutory factors, as explained below,
we propose a total forfeiture of $32,000.
10. Section 1.80(b) of the Rules sets a base forfeiture amount of $10,000
for operation of a station without Commission authority and $3,000 for
failure to file required forms or information. As the Commission has
held, a licensee's continued operations without authorization and its
failure to timely file a renewal application constitute separate
violations of the Act and the rules and warrant the assessment of
separate forfeitures. Accordingly, we herein propose separate
forfeiture amounts for Journal Broadcast's separate violations.
11. Consistent with precedent, we propose a forfeiture in the amount of
$3,000 for each of Journal Broadcast's failures to timely file a
renewal application within the time period specified in Section
25.121(e) of the Rules, for a total of $6,000. Additionally, we
propose a forfeiture in the amount of $5,000 for each of Journal
Broadcast's unauthorized operations of its earth stations E850092 and
E980274, after February 6, 2008 and July 31, 2008 respectively, for a
total of $10,000. In proposing a forfeiture of $5,000 per station for
the unauthorized operation, we recognize that the Commission considers
a licensee who operates a station with an expired license in better
stead than a pirate broadcaster who lacks prior authority, and thus
downwardly adjusts the $10,000 base forfeiture amount accordingly.
Thus, we propose an aggregate forfeiture of $16,000 ($6,000 for two
instances of failure to timely file a renewal application at $3,000
each, and $10,000 for two instances of unauthorized operation at
$5,000 each).
12. This $16,000 forfeiture amount is subject to adjustment, however. In
this regard, we consider the size of the violator and ability to pay a
forfeiture, as well as its prior violation of the same rule sections
before us today. To ensure that forfeiture liability is a deterrent,
and not simply a cost of doing business, the Commission has determined
that large or highly profitable companies such as Journal Broadcast,
could expect the assessment of higher forfeitures for violations, and
that prior violations of the same or other regulations would also be a
factor contributing to upward adjustment of apparent liability. Given
Journal's size and its ability to pay a forfeiture, coupled with its
previous violation, we conclude that an upward adjustment of the base
forfeiture amount to $32,000 is appropriate.
13. We do find, however, that a downward adjustment of the proposed
forfeiture from $32,000 to $25,000 is warranted because Journal
Broadcast made voluntary disclosures to Commission staff and undertook
corrective measures after learning of its violations, but prior to any
Commission inquiry or initiation of enforcement action.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311 and 1.80 of the Rules, Journal Broadcast
Corporation IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty-five thousand dollars ($25,000) for
the willful and repeated violation of Section 301 of the Act and
Section 25.201(a) of the Rules, and for willful violation of Section
25.121(e) of the Rules.
15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Journal Broadcast Corporation SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
1. 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/Account Number and FRN Number 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 TREAS/NYC, 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). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Journal Broadcast Corporation will also
send electronic notification on the date said payment is made to Susan
Stickley, at Susan.Stickley@fcc.gov, and to Ricardo Durham, at
Ricardo.Durham@fcc.gov.
16. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
17. 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; 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.
2. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to Mr. Douglas G. Kiel, Vice President,
Journal Broadcast Corporation, 333 West State Street, Milwaukee,
Wisconsin 53203, and to its counsel, David H. Pawlik, Esq., Skadden,
Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue NW, Washington,
DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 301; 47 C.F.R. S: 25.121(e).
47 C.F.R. S: 25.102(a).
See File No. SES-MOD-20021014-01766.
See File No. SES-LIC-19980608-00684.
See SES-STA-20080924-01233 and SES-STA-20080924-01234.
See SES-LIC-INTR2008-02456.
See SES-LIC-20081010-01317.
See SES-LIC-INTR2008-02806.
See SES-STA-20081120-01504 and SES-STA-20081205-01539.
See SES-LIC-20081203-01527.
Letter from Kathy S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Douglas G. Kiel,
Chief Executive Officer, Journal Broadcast Corporation (November 24,
2008).
Letter from Douglas G. Kiel, Vice President, Journal Broadcast
Corporation, to Susan Stickley, Esq., Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (December 24, 2008).
Id at 2-3.
Id at 1.
Id at 1, 4.
47 U.S.C. S: 301; 47 C.F.R. S: 25.102(a).
47 C.F.R. S: 25.121(c).
47 C.F.R. S: 25.121(e).
47 C.F.R. S: 25.161.
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7437 (2004) ("Discussion Radio"). See
also Discovery World Television, Inc., Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2883, 2884 (Enf. Bur., Spectrum Enf. Div. 2009)
("Discovery World"); Side By Side, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 898 (Enf. Bur., Spectrum Enf. Div. 2008) ("Side By
Side"); La Carpa Corp., Notice of Apparent Liability for Forfeiture, 22
FCC Rcd 2744, 2745 (Enf. Bur., Spectrum Enf. Div. 2007) (forfeiture paid)
("La Carpa"); Lazer Broadcasting Corp., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 8710, 8712 (Enf. Bur., Spectrum Enf. Div. 2005)
(forfeiture paid) ("Lazer"); Shared Data Networks, LLC, Notice of Apparent
Liability for Forfeiture, 20 FCC Rcd 18184, 18186 (Enf. Bur., Spectrum
Enf. Div. 2005) (forfeiture paid) ("Shared Data Networks").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(a).
See 47 U.S.C. S: 312(f)(1) & (2). See also Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991),
recon. denied, 7 FCC Rcd 3454 (1992) (the definitions of willful and
repeated contained in the Act apply to violations for which forfeitures
are assessed under Section 503(b) of the Act.
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; Forfeiture Policy Statement, Report and Order, 12 FCC Rcd
17087, 17110 91997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80(b).
See Discussion Radio, 19 FCC Rcd at 7438. See also Side By Side, 23 FCC at
901; La Carpa Corp., 22 FCC Rcd at 2746; Lazer, 21 FCC Rcd at 8712; Shared
Data Networks, 20 FCC Rcd at 18187.
See e.g., Lockheed Martin Corporation, Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2980, 2982 (Enf. Bur., Spectrum Enf. Div. 2009)
("Lockheed Martin"); Discovery World., 24 FCC Rcd at 2886; Bloomsburg
University of Pennsylvania, Memorandum Opinion and Order and Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 9357, 9359 (Media Bur.,
Audio Div. 2008); Sunflower Communications, Inc., Memorandum Opinion and
Order and Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 7657,
7659 (Media Bur., Audio Div. 2008); Santa Cruz Educational Broadcasting
Foundation, Memorandum Opinion and Order and Notice of Apparent Liability
for Forfeiture, 22 FCC 21033, 21035 (Media Bur., Audio Div. 2007) (all
proposing the full base forfeiture amount of $3,000 against broadcast
station licensees for failure to file timely renewal applications).
Section 503(b)(6) of the Act, 47 U.S.C. S: 503(b)(6), prohibits assessment
of a forfeiture for a violation that occurred more than one year before
the issuance of a NAL, but this section does not bar consideration of
prior conduct in determining the appropriate forfeiture amount for
violations that occurred within the one-year statutory period. See
Globcom, Inc., d/b/a Globcom Global Communications, Notice of Apparent
Liability for Forfeiture and Order, 18 FCC Rcd 19893, 19903 (2003),
forfeiture ordered, 21 FCC Rcd 4710 (2006); Roadrunner Transportation,
Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-72 (2000).
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
against a broadcaster for operating its broadcast station beyond the
expiration of its license); Side by Side, 23 FCC Rcd at 900 (proposing a
$5,000 forfeiture against an earth station operator for operating beyond
the expiration of its license); La Carpa, 22 FCC Rcd at 2746 (proposing a
$5,000 forfeiture against an earth station operator for operating beyond
the expiration of its license); Lazer, 21 FCC Rcd at 8712 (proposing a
$5,000 forfeiture against an earth station operator for operating beyond
the expiration of its license).
Journal Broadcast Corporation is a leading television and radio station
operator with 35 radio stations and 12 television stations operating in as
many states. Its net yearly sales are $112,900,000. See Hoover's Company
Records - In-depth Records, May 15, 2009. Journal Broadcast was previously
found to be apparently liable for a forfeiture for failure to timely file
a renewal application and for operating an earth station without
authority. See Journal Broadcast Corp., Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 18211, 18214 (Enf. Bur., Spectrum Enf. Div. 2005)
(forfeiture paid).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-101.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100. See also SES
Americom, Notice of Apparent Liability, 24 FCC Rcd 2694, 2697 (Enf. Bur.,
Spectrum Enf. Div. 2009); Discovery World, 24 FCC Rcd at 2886; Lockheed
Martin Corporation, Notice of Apparent Liability, 24 FCC Rcd at 2984-2985;
Walgreen Co., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
16045, 16048 (Enf. Bur., Spectrum Enf. Div. 2007).
See Discovery World, 24 FCC Rcd at 2883; Petracom of Texarkana, LLC,
Forfeiture Order, 19 FCC Rcd 8096, 8097-8098 (Enf. Bur. 2004). See also
Side By Side, 23 FCC Rcd at 901; Lazer, 21 FCC Rcd at 871.
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
47 C.F.R. S: 1.80.
Federal Communications Commission DA 09-1756
6
Federal Communications Commission DA 09-1756