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 ) File No. EB-08-SE-148
Discovery World Television, Inc. ) NAL/Acct. No. 200932100050
Earth Station call sign E970321 ) FRN # 0017882317
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 4, 2009 Released: March 6, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Discovery
World Television ("Discovery"), licensee of earth station call sign
E970321, apparently liable for a forfeiture in the amount of twelve
thousand eight hundred dollars ($12,800) for operating its station
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 a timely renewal application for its earth station
in apparent willful violation of Section 25.121(e) of the Rules.
II. background
2. On October 3, 1997, Discovery was granted a license to operate a fixed
satellite earth station under call sign E970321. Under the terms of
its license, Discovery's authorization for its earth station expired
on October 3, 2007. Thereafter, on February 25, 2008, Discovery became
aware that it had failed to file a renewal application for the station
and that its license had expired. On March 13, 2008, Discovery
submitted an application for special temporary authority ("STA") for
the station to operate, which was granted on April 16, 2008. On April
11, 2008, Discovery filed an application for authorization for its
earth station, call sign E970321, which was granted on May 28, 2008.
3. Because it appeared that Discovery operated its earth station, call
sign E970321, without authorization, the International Bureau referred
this case to the Enforcement Bureau for investigation and possible
enforcement action. On April 22, 2008, the Enforcement Bureau's
Spectrum Enforcement Division ("Division") issued Discovery a letter
of inquiry ("LOI") to further investigate whether Discovery operated
the earth station beyond expiration of its license.
4. In its May 13, 2008 response to the LOI, Discovery admitted that it
failed to timely renew its earth station license and that it continued
to operate the station without Commission authority through March 13,
2008, the date of its STA request, because it was unaware that its
license had expired. Discovery stated that it first became aware that
its license had expired on February 25, 2008, at which time it took
steps to request an STA to operate its station consistent with the
parameters contained in the expired authorization, pending the
submission and grant of a new license application.
III. discussion
5. 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.
6. Under the terms of its license, Discovery's authorization to operate
its earth station, call sign E970321, expired on October 3, 2007. As a
Commission licensee, Discovery is charged with the responsibility of
knowing and complying with the terms of its authorization, the Act and
the Rules. Discovery admitted that it failed to file its renewal
application during the requisite 30-90 day period prior to the
expiration date. Moreover, Discovery admitted that it continued to
operate the station after the expiration of its license, a situation
that Discovery did not seek to remedy until March 13, 2008, when
Discovery filed its request for an STA. Thus, it appears that
Discovery violated Section 25.121(e) of the Rules by failing to timely
file a renewal application, and violated Section 301 of the Act and
Section 25.102(a) of the Rules by continuing to operate its station
without Commission authority.
7. 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 Discovery's violation of Section 301 of the Act
and of Section 25.102(a) of the Rules was willful and repeated, and
its violation of Section 25.121(e) of the Rules was willful.
8. 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 $16,000.
9. 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 Discovery's separate violations.
10. Consistent with precedent, we propose a forfeiture in the amount of
$3,000 for Discovery's failure to timely file a renewal application
for its earth station. Additionally, we propose a forfeiture in the
amount of $5,000 for Discovery's unauthorized operation of its earth
station, call sign E970321, after October 3, 2007. In proposing a
forfeiture of $5,000 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 $8,000 ($3,000 for failure to timely file a renewal
application, and $5,000 for unauthorized operation).
11. This $8,000 forfeiture amount is subject to adjustment, however. In
this regards, we consider Discovery's size and ability to pay a
forfeiture. 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 Discovery, could
expect the assessment of higher forfeitures for violations. Given
Discovery's size and ability to pay a forfeiture, we conclude that an
upward adjustment of the base forfeiture amount to $16,000 is
appropriate.
12. We do find, however, that a downward adjustment of the proposed
forfeiture from $16,000 to $12,800 is warranted because Discovery 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
13. 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, Discovery World
Television, Inc. IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of twelve thousand eight hundred dollars
($12,800) for 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.
14. 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, Discovery World Television, Inc. SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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. Discovery will also send electronic
notification on the date said payment is made to
Ricardo.Durham@fcc.gov and Susan.Stickley@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.
1. 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. John Miller, Senior Vice President,
Technology and Distribution, Discovery World Television, Inc., 1
Discovery Place, Silver Spring, Maryland 20910, and to its counsel,
Christopher A. Fedeli, Esq., Davis Wright Tremaine LLP, 1919
Pennsylvania Ave, N.W., Suite 200, Washington DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 25.102.
47 C.F.R. S: 25.121(e).
See File No. SES-LIC-19970519-00651 and File No. SES-MOD-20040825-01244.
See SES-STA-20080313-00298.
See SES-LIC-2008-0411-00456.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Mr. John Miller,
Senior Vice-President, Technology and Distribution, Discovery World
Television, Inc. (April 22, 2008).
Letter from Christopher A. Fedeli, Esq., to Marlene H. Dortch, Secretary,
Federal Communications Commission, Attn: Susan M. Stickley, Esq., Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission (May 13, 2008).
Id at 2-3.
Id at 2.
Id.
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 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) ("Forfeiture
Police Statement").
47 C.F.R. S: 1.80(b).
See Discussion Radio,19 FCC Rcd at 7438. See also Side By Side, 23 FCC Rcd
at 901; La Carpa, 22 FCC Rcd at 2746; Lazer, 21 FCC Rcd at 8712; Shared
Data Networks, 20 FCC Rcd at 18187.
See e.g., 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).
Discovery Communications, Inc., parent company of licensee Discovery World
Television, Inc., reported third quarter 2008 revenues from its United
States television networks as $498 million. See Discovery Communications
Reports Third Quarter 2008 Results, News Release, Discovery
Communications, November 7, 2008.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
See Walgreen Co., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
16,045, 16,048 (Enf. Bur., Spectrum Enf. Div. 2007) (forfeiture paid).
See 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 8712; Journal Broadcast Corp., Notice of Apparent
Liability for Forfeiture, 20 FCC Rcd 18211, 18214 (Enf. Bur., Spectrum
Enf. Div., 2005) (forfeiture paid).
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 09-538
2
Federal Communications Commission DA 09-538