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Carolina Rays, LLC

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Released: July 11, 2013

Federal Communications Commission DA 13-1548

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of:
)
)

Carolina Rays, LLC
)
Facility ID No. 60888
Licensee of Station WLNN-LP
)
NAL/Acct No. 201241420007
Boone, North Carolina
)
FRN: 0013222245

FORFEITURE ORDER

Adopted: July 10, 2013

Released: July 11, 2013

By the Deputy Chief, Video Division, Media Bureau:

I. INTRODUCTION

1.
In this Forfeiture Order, issued pursuant to Sections 0.61(f)(1) and 1.80(a)(1) and (2)
of the Commission's rules,1 we find that Carolina Rays, LLC, licensee of Station WLNN-LP,
Boone, North Carolina, repeatedly violated Section 73.3526(e)(11)(iii) of the Commission's
Rules by failing to file electronically with the Commission the Station's Children's Television
Programming Reports (FCC Form 398). Based on our review of the facts and circumstances, we
find the Licensee liable for a forfeiture of Three Thousand Dollars ($3,000).

II. BACKGROUND

2.
The Video Division issued a Notice of Apparent Liability ("NAL") for Forfeiture on
March 28, 2013.2 The NAL notified the Licensee that its failure to file Children's Television
Programming Reports for the third quarter in 2008, the second quarter of 2009, and all four quarters
in 2010 constituted apparent willful and/or repeated violations of Section 73.3526(e)(11)(iii) of the
Commission's rules.3 The Division concluded that the Licensee was apparently liable for a
forfeiture of $3,000. In a response received May 1, 2013, the Licensee requested that the
forfeiture be cancelled.4

III. DISCUSSION

3.
The Commission is authorized to license radio and television broadcast stations and
is responsible for enforcing the rules and applicable statutory provisions concerning the operation
of those stations. Under section 503(b)(1) of the Communications Act of 1934 (the "Act"), any
person who is determined by the Commission to have willfully or repeatedly failed to comply
with any provision of the Act or any rule, regulation, or order issued by the Commission shall be
liable to the United States for a forfeiture penalty.5 In order to impose a forfeiture penalty, the


1 47 C.F.R. 0.61(f)(1), 1.80(a)(1) & (2).
2 Carolina Rays, LLC, Notice of Apparent Liability for Forfeiture, DA 13-567 (Mar. 28, 2013).
3 47 C.F.R. 73.3526(e)(11)(iii).
4 Licensee Response to Notice of Apparent Liability ("Licensee Response") (May 1, 2013).
5 47 U.S.C. 503(b)(1) (A) & (B); 47 C.F.R. 1.80(a)(1) & (2). The Commission may assess a forfeiture

Federal Communications Commission DA 13-1548


Commission must issue a notice of apparent liability, the notice must be received, and the person
against whom the notice has been issued must have an opportunity to show, in writing, why no
such penalty should be imposed.6 The Commission will then issue a forfeiture order if it finds by
a preponderance of the evidence that the person has violated the Act or a Commission rule.7 As
we set forth in greater detail below, we conclude that the Licensee is liable for a forfeiture of
$3,000 for repeated violations of Section 73.3526(e)(11)(iii) of the Commission's rules.
4.
The Community Broadcasters Protection Act requires that Class A television stations
comply with all rules applicable to full-power television stations except for those rules that could
not apply for technical or other reasons.8 The Commission rules establish that Class A licensees
must (i) offer informational and educational children's programming; (ii) prepare and place in a
public inspection file quarterly Children's Television Programming Reports; and (iii) electronically
file those reports with the Commission.9 A Commission inquiry revealed that the Licensee failed to
file timely Children's Television Programming Reports on repeated occasions.
5.
Commission policy establishes a base forfeiture amount of $3,000 for failure to file a
required form.10 In determining the appropriate forfeiture amount, the Commission may adjust the
base amount upward or downward by considering the factors in Section 503(b)(2)(E), which
include "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." In the NAL, the Commission proposed a forfeiture amount of
$3,000. Licensee argues that the forfeiture amount should be cancelled.
6.
First, the Licensee argues that it did not assume ownership of the Station until
November 30, 2012 upon the final consummation of the assignment of the Station from Rondinaro
Broadcasting, Inc. to Carolina Rays, LLC, and therefore the violations predated its ownership of the
Station.11 Licensee's representation is incorrect. Commission records show that the transaction
between Rondinaro Broadcasting, Inc. and Carolina Rays LLC was consummated on November 30,
2008.12 The late filings for the second quarter of 2009 and all four quarters of 2010 occurred during





order for violations that are merely repeated, and not willful. See, e.g., Callais Cablevision, Inc., Grand Isle,
Louisiana
, Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, (2001) (issuing a
Notice of Apparent Liability for a cable television operator's repeated violations of the Commission's signal
leakage rules). "Repeated" means that the act was committed or omitted more than once. Southern
California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).
6 47 U.S.C. 503(b); 47 C.F.R. 1.80(f).
7 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7591 (2002).
8 Community Broadcasters Protection Act of 1999, Pub. L. No. 106-113, 113 Stat. Appendix I at pp. 1501A-
594-1501A-598 (1999), codified at 47 U.S.C. 336(f).
9 Establishment of a Class A Television Service, MM Docket No. 00-10, Report and Order, 15 FCC Rcd 6355,
6366 (2000); 47 C.F.R. 73.3526 (a)(2) & (e)(11)(iii).
10 See Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the
Forfeiture Guidelines, Report and Order
, 12 FCC Rcd 17087, 17113-15 (1997), recon. denied, 15 FCC Rcd
303 (1999); 47 C.F.R. 1.80(b)(4).
11 Licensee Response at 1.
12 File No. BALTTA-20080710AGQ, available at
http://licensing.fcc.gov/cgi-bin/ws.exe/prod/cdbs/pubacc/prod/app_det.pl?Application_id=1250415; see also
April 27, 2011 Email From Terry Smith of Carolina Rays, LLC to Joyce Bernstein, Attorney Adviser, Video
Division ("I took over the operation of the station in 2008. . . .") ("Smith Email to Bernstein").
2

Federal Communications Commission DA 13-1548


the time when Carolina Rays LLC served as the licensee.13
7.
Second, the Licensee argues that it is now compliant with all Commission Rules.14
However, corrective actions taken to prevent subsequent violations of the children's television rules
and policies do not relieve the Licensee of liability for violations which have already occurred.15
8.
Third, the Licensee argues that the FCC's electronic filing system is inadequate and
at fault because it did not provide stations with an opportunity to know if their filings were received
properly.16 This is also incorrect. The Commission's "KidVid Public Access" database17 has been
available to licensees and the general public to check on the status of individual filings since long
before the violations at issue here occurred. Thus, the Licensee did in fact have the opportunity to
review this database to ensure that the reports were properly filed, and we reject Licensee's
assertion that the failure to file the reports timely was caused by the FCC's electronic filing
system.18 Regardless, it is the Licensee's responsibility to ensure that the reports are properly filed.
9.
Fourth, the Licensee claims that certain reports were filed in a timely manner but
were not available in the database.19 The Licensee has provided no verifiable evidence of the
Commission's receipt of the reports in a timely manner. In response to our initial inquiry, the
Licensee provided copies of reports that were dated as having been prepared in a timely manner but
no evidence that the reports were electronically filed at that time. When a report is submitted
properly through the Children's Television Programming Reports database, the reporting party
receives a submission confirmation with a confirmation number and the date of the filing included.
Licensees seeking to demonstrate that a report was properly filed have frequently submitted this
confirmation page to confirm the filing. Here, Licensee provided no such evidence, despite stating
in its response that it printed the confirmation page when it submitted its report for the first quarter
of 2013.20
10.
Fifth, the Licensee argues that the station cannot afford to pay the forfeiture.21 The
Commission will not consider reducing or canceling a forfeiture in response to inability to pay
unless the licensee submits: (1) federal tax returns for the most recent three-year period; (2)


13 The Licensee is correct that the first late filing cited in the NAL predated its ownership of the Station.
However, the remaining five late filings were during the period in which Carolina Rays, LLC was the
Licensee. We conclude there is no basis to reduce the violation given that repeated violations of Section
73.3526 occurred during the Licensee's ownership period.
14 Licensee Response at 1-2.
15 See, e.g., WSOC Television, Inc. (WSOC-TV), Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
6124 (2010); WCVB Hearst Television )(WCVB(TV)), Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 6128, 6129-30 (2010)
16 Licensee Response at 1.
17 http://licensing.fcc.gov/KidVid/public/report/10/query.faces
18 See Smith Email to Bernstein ("The one report in 2008 and the one in 2009 were both sent in like the other
reports each quarter, but apparently something caused them not to end up in the proper place. I am not highly
experienced electronically, and therefore I do not understand why they did not because they were sent like the
others.").
19 Licensee Response at 1.
20 Id. at 1.
21 Licensee Response at 2.
3

Federal Communications Commission DA 13-1548


financial statements prepared according to generally accepted accounting practices ("GAAP"); or
(3) some other reliable and objective documentation that accurately reflects the licensee's current
financial status. Typically, the Commission uses gross revenue as the primary measuring stick by
which it evaluates a licensee's ability to pay.22 Here, the Licensee has provided no financial
documentation. Absent such financial information, the Commission will not consider its request
to reduce or cancel the forfeiture on this basis.23
11.
Sixth, and finally, the licensee argues that the forfeiture should be reduced or
cancelled based on its service to the community and the significant local programming it
produces.24 Although the station does produce local issues responsive programming, a claim of
service to the community is not normally accepted as a basis to mitigate a forfeiture and in this
case we do not find that the licensee's showing excuses it from its basic obligations regarding the
filing of Children's Television Programming Reports.25

IV. ORDERING CLAUSES

12.
ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.61(f)(1) and 1.80(a)(1)&(2) of the
Commission's rules,26 Carolina Rays, LLC SHALL FORFEIT to the United States the sum of
Three Thousand Dollars ($3,000) for repeatedly violating 47 U.S.C. 336(f)(2)(A)(ii) and 47
C.F.R. 73.3526(e)(11)(iii).
13.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80
(h) of the Commission's rules within fifteen (15) calendar days after the release date of this
Forfeiture Order. If the forfeiture is not paid within the period specified, the case may be referred
to the U.S. Department of Justice for enforcement of the forfeiture pursuant to Section 504(a) of
the Communications Act of 1934, as amended. The Licensee shall send electronic notification of
the payment to Peter Saharko at peter.saharko@fcc.gov on the date payment is made.
14.
The payment must be made by check or similar instrument, wire transfer, or credit
card, and must include the NAL/Account number and FRN referenced above. Regardless of the
form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted. When
completing FCC Form 159, enter the Account Number in block number 23A (call sign/other ID)
and enter the "FORF" in block number 24A (payment type code). Payment by check or money
order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000,
or sent via overnight mail to U.S. Bank Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101.


22 San Jose State University, Memorandum Opinion and Order, 26 FCC Rcd 5908 (2011).
23 Lawmate Tech. Co., Ltd., Forfeiture Order, 2012 WL 6086200, File No. EB-07-SE-206 (2012).
24 Licensee Response at 2.
25 KLDT-TV, Forfeiture Order, 10 FCC Rcd 3198, 3199 (1995).
26 47 U.S.C. 503(b); 47 C.F.R. 0.61(f)(1) & 1.80(a)(1)&(2).
4

Federal Communications Commission DA 13-1548


15.
IT IS FURTHER ORDERED THAT a copy of this FORFEITURE ORDER shall
be sent by Certified Mail Return Receipt Requested to Carolina Rays, LLC, P.O. Box 67,
Linville, North Carolina, 28646.
FEDERAL COMMUNICATIONS COMMISSION
Hossein Hashemzadeh
Deputy Chief, Video Division
Media Bureau
5

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