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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
HTV/HTN/Hawaiian TV Network, Ltd.
) File Number EB-08-HL-0089
Licensee of Class A Television
Station KHLU-LP ) NAL/Acct. No. 200932860002
Honolulu, Hawaii ) FRN 0003787835
Facility ID # 27969 )
)
FORFEITURE ORDER
Adopted: May 5, 2010 Released: May 7, 2010
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 one thousand dollars ($1,000) to HTV/HTN/Hawaiian TV
Network, Ltd. ("HTV"), licensee of station KHLU-LP, in Honolulu,
Hawaii, for willfully and repeatedly violating Sections 73.1225(a),
73.1125(c) and 73.3526 of the Commission's Rules ("Rules"). On March
27, 2009, the Enforcement Bureau's Honolulu Resident Agent Office
issued a Notice of Apparent Liability for Forfeiture ("NAL") in the
amount of $24,000 to HTV for failing to make the station available for
FCC inspection, failing to maintain an accessible local main studio in
its community of license, and failing to make the KHLU-LP public
inspection file available for public inspection during regular
business hours. In this Order, we consider HTV's request that we
reduce the forfeiture amount based on its inability to pay.
II. BACKGROUND
2. On October 28, 2008 and again on October 29, 2008, Honolulu agents
attempted to conduct a station inspection of the KHLU-LP main studio,
which is co-located with their transmitter at the shared Salem
Communications site on Palehua Ridge, Oahu, Hawaii. The agents
observed two locked gates prohibiting public vehicular access en-route
to the transmitter site. The KHLU-LP transmitter site was enclosed by
a locked chain-link fence, and there were signs posted on the fence to
warn the public not to approach because of the danger of exposure to
high electromagnetic fields. The agents did not have keys to access
the site, and attempted to contact KHLU-LP by telephone. There was
neither a studio address nor telephone listing for KHLU-LP in the Oahu
Hawaiian Telcom Directory. An agent called the phone number listed for
"HTV/Hawaiian Television," and was connected to an answering machine.
The agent left a message identifying himself only by his first name,
provided a call back number, and requested access to the KHLU-LP
public inspection file. Not receiving any response, the agents waited
at the site for an additional hour, without result. The agents did not
observe any vehicles indicating the presence of station personnel at
the studio, and were able to ascertain that the studio was locked and
unoccupied.
3. On November 12, 2008, an agent of the Honolulu Office attempted to
contact HTV by telephone, and left a message on the answering machine
requesting to inspect KHLU-LP and its main studio and public
inspection file on November 18, 2008, at 10 a.m. The agent
specifically identified himself as an FCC agent, provided a call back
phone number, and requested that station personnel meet him at the
first locked gate en-route to the KHLU-LP studio site. The agent did
not receive any response to his request.
4. On November 18, 2008, Honolulu agents waited at the specified locked
gate from 9:55 a.m. until 11:00 a.m. No KHLU-LP personnel arrived
during this period.
5. On March 27, 2009, the Honolulu Office issued a NAL in the amount of
$24,000 to HTV, finding that HTV apparently willfully and repeatedly
violated Section Sections 73.1225(a), 73.1125(c) and 73.3526 of the
Rules by failing to make the station available for FCC inspection,
failing to maintain an accessible local main studio in its community
of license, and failing to make the KHLU-LP public inspection file
available for public inspection during regular business hours. HTV
filed a response ("Response") on May 22, 2009. In its Response, HTV
does not dispute the violations identified in the NAL but requests
that the forfeiture amount be reduced based on its inability to pay.
III. DISCUSSION
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications 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"). 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. As discussed
below, we find that a reduction of the forfeiture amount from $24,000
to $1,000 based on HTV's documented inability to pay is appropriate.
7. Section 73.1225(a) of the Rules states "[t]he licensee of a broadcast
station shall make the station available for inspection by
representatives of the FCC during the station's business hours, or at
any time it is in operation." Honolulu agents called the licensee's
listed telephone number during regular business hours and requested
access to the station on October 28, 2008, October 29, 2008, and
November 12, 2008. No response was received to any of these requests.
The Honolulu agents initially attempted to inspect the KHLU-LP main
studio on October 28, 2008 and October 29, 2008, but found the studio
unattended and locked. Finally the Honolulu agents gave HTV six days
prior notice of their planned station inspection and requested that
KHLU-LP personnel meet them to conduct a KHLU-LP station inspection on
November 18, 2008. Despite repeated attempts to contact KHLU-LP by
phone and in person at their main studio, HTV failed to make KHLU-LP
available for inspection by the FCC agents.
8. Section 73.1125(c) of the Rules requires the licensee of a Class A
television station to maintain a main studio within the station's
predicted Grade B contour. 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 HTV as the main
studio location for KHLU-LP had no public access, and no staff
presence.
9. Section 73.3526(b) of the Rules requires Class A broadcast stations to
maintain a public inspection file and that the file be located at the
main studio of the station. Section 73.3526(c) of the Rules requires
that the file be available for public inspection at any time during
regular business hours. On October 28, 2008, October 29, 2008, and
November 18, 2008, Honolulu agents attempted to inspect the file
during regular business hours but were unable to access the file.
10. HTV does not dispute the violations listed in the NAL. Instead, it
argues that it lacks the ability to pay the proposed forfeiture and
submits its three most recent years of tax returns to substantiate its
claim. 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. While we find that HTV willfully and repeatedly
violated Sections 73.1225(a), 73.1125(c) and 73.3526 of the Rules, we
conclude that pursuant to Section 503(b) of the Act and the Forfeiture
Policy Statement, reduction of the forfeiture to $1,000 is warranted
based upon its documented inability to pay. Although we are reducing
the forfeiture amount, we order HTV to file a report with the Honolulu
Office detailing its compliance with Sections 73.1225(a), 73.1125(c)
and 73.3526 of the Rules, within 30 days of the date of this Order.
IV. ORDERING CLAUSES
11. 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, HTV/HTN/Hawaiian TV
Network, Ltd., IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$1,000 for willfully and repeatedly violating Sections 73.1225(a),
73.1125(c) and 73.3526 of the Rules.
12. IT IS FURTHERED ORDERED THAT, within 30 days of the release of this
Order, HTV/HTN/Hawaiian TV Network, Ltd., file with the Honolulu
Resident Agent Office, the report required in paragraph 10 above.
13. 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/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.
HTV/HTN/Hawaiian TV Network, Ltd., will also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to
HTV/HTN/Hawaiian TV Network, Ltd. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S:S: 73.1225(a), 73.1125(c), 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932860002
(Enf. Bur., Western Region, Honolulu Resident Agent Office, released March
27, 2009).
Salem Communications of Hawaii, Inc., is the licensee of KAIM-FM.
The agents were able to bypass the locked gate and access the KHLU-LP
studio on-foot.
47 C.F.R. S:S: 73.1225(a), 73.1125(c), 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932860002
(Enf. Bur., Western Region, Honolulu Resident Agent Office, released March
27, 2009).
HTV requested and received an extension of time to respond to the NAL.
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: 73.1225(a).
47 C.F.R. S: 73.1125(c).
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.
47 C.F.R. S: 73.3526(b).
47 C.F.R. S: 73.3526(c).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.1225(a),
73.1125(c), 73.3526.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-777
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Federal Communications Commission DA 10-777