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Community Broadcast Group, Inc.

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Released: July 3, 2014
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Federal Communications Commission

DA 14-955

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Community Broadcast Group, Inc.

)

Facility I.D. No. 51913

Licensee of Station WMNT-CA

)

NAL/Acct. 201441420022

Toledo, Ohio

)

FRN: 0019933373

NOTICE OF APPARENT

LIABILITY FOR FORFEITURE

Adopted: July 3, 2014

Released: July 3, 2014

By the Chief, Video Division, Media Bureau:

I. INTRODUCTION

1.

In

this Notice of Apparent Liability for Forfeiture (“NAL”)1

we find that Community

Broadcast Group, Inc., (the “Licensee”), licensee of Class A television station WMKE-CA, Milwaukee,

Wisconsin (the “Station”), apparently willfully and/or repeatedly violated the Commission’s Rules by: (1)

failing to file electronically the Station’s quarterly TV issues/programs lists, in violation of Section

73.3526(e)(11)(i)2; (2) failing to file timely with the Commission the Station’s Children’s Television

Programming Reports, in violation of Section 73.3526(e)(11)(iii)3; and (3) failing to report certain

violations in the renewal application, in violation of Section 73.3514(a).4

Based upon our review of the

facts and circumstances before us, we conclude that the Licensee is apparently liable for a monetary

forfeiture in the amount of Ten Thousand Dollars ($10,000).

II. BACKGROUND

2.

Section 73.3526 of the Rules requires each commercial broadcast licensee to maintain a

public inspection file containing specific types of information related to station operations.5

As set forth

in subsection 73.3526(e)(11)(i), each commercial television licensee must prepare and place in its public

inspection file a TV issues/programs list which details programs that have provided the station’s most

significant treatment of community issues during the preceding three month period. As set forth in

subsection 73.3526(e)(11)(iii), each commercial television licensee is required to prepare and place in its

public inspection file a Children’s Television Programming Report (FCC Form 398) for each calendar

quarter reflecting, inter alia, the efforts that it made during that quarter to serve the educational and

informational needs of children. That subsection also requires licensees to file the reports with the

Commission and to publicize the existence and location of the reports.

1 This NAL is issued pursuant to Section 503(b) of the Communications Act of 1934, as amended (the “Act”), and

Section 1.80 of the Commission’s Rules (the “Rules”). See 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. The Chief, Video

Division, Media Bureau, has delegated authority to issue the NAL under Section 0.283 of the Rules.

See 47 C.F.R. §

0.283.

2 47 C.F.R. § 73.3526(e)(11)(i).

3 47 C.F.R. § 73.3526(e)(11)(iii).

4 47 C.F.R. § 73.3514(a).

5 47 C.F.R. § 73.3526.

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Federal Communications Commission

DA 14-955

3.

Section 73.3514(a) of the

Rules provides that “[e]ach application shall include all

information called for by the particular form on which the application is required to be filed. . . .” Section

IV, Question 3 of the Form 303-S license renewal application requires licensees to certify “that the

documentation, required by 47 C.F.R. Section 73.3526 . . . has been placed in the station’s public

inspection file at the appropriate times.” Section IV, Question 6 of the license renewal application

requires licensees to certify that it has filed with the Commission its Children’s Television Programming

Reports according to the requirements of Section 73.3526 of the Commission’s rules and requires the

Licensee to submit a statement of explanation as an exhibit if the Licensee has failed to do so.

4.

On June 1, 2013, the Licensee filed its license renewal application (FCC Form 303-S) for

Station WMNT-CA (the “Application”).6

The Licensee did not report, as required, that it failed to file

three Children’s Television Programming Reports and four issues/programs lists in a timely manner.

III. DISCUSSION

5.

The Licensee’s failure to file electronically the Station’s quarterly TV issues/programs

lists for four quarters constitutes an apparent willful and/or repeated violation of Section

73.3526(e)(11)(i). Moreover, the Licensee’s failure to file with the Commission in a timely manner its

Children’s Television Programming Reports for three quarters constitutes an apparent willful and/or

repeated violation of Section 73.3526(e)(11)(iii).7

The Licensee’s failure to report the violations

constitutes an apparent willful and/or repeated violation of Section 73.3514(a).8

6.

This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision, any

person determined by the Commission to have willfully and/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.9

Section 312(f)(1) of the Act defines willful as “the conscious and

deliberate commission or omission of [any] act, irrespective of any intent to violate” the law.10

The

legislative history to Section 312(f)(1) of the Act clarifies that this definition of willful applies to both

Sections 312 and 503(b) of the Act,11 and the Commission has so interpreted the term in the Section

503(b) context.12

Section 312(f)(2) of the Act provides that “[t]he term ‘repeated,’ when used with

reference to the commission or omission of any act, means the commission or omission of such act more

than once or, if such commission or omission is continuous, for more than one day.”13

7.

The Commission’s Forfeiture Policy Statement

and Section 1.80(b)(4) of the Rules

establish a base forfeiture amount of $3,000 for failure to file a required form and a base forfeiture

6 File No. BRTVA-20130730AGX.

7 The Licensee consummated a transfer of control in 2010 which resulted in a transfer of the stock of the corporation

from James C. Sim to Brenda S. Sim and in turn to their two daughters, Susan Sim and Coline K. Sim. File No.

BTCTTA-20090519ACY. This transfer of control does not eliminate liability for the violations that occurred prior

to the transfer because the licensee remains the same and therefore liability, as a legal matter, remains with the

licensee. Mapleton Licensee of San Luis Obispo, Forfeiture Order, 27 FCC Rcd. 4099, 4101 n.19 (EB 2012);

Hensley Broadcasting, Inc., Forfeiture Order, 24 FCC Rcd 1115, 116 n.9 (EB 2009).

8 47 C.F.R. § 73.3514(a).

9 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1).

10 47 U.S.C. § 312(f)(1).

11 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

12 See Southern California Broadcasting Co., 6 FCC Rcd at 4388.

13 47 U.S.C. § 312(f)(2).

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Federal Communications Commission

DA 14-955

amount of $10,000 for public file violations.14

In determining the appropriate forfeiture amount, we may

adjust the base amount upward or downward by considering the factors enumerated in Section

503(b)(2)(D) of the Act, including “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.”15

8.

In this case, the Licensee has not filed the quarterly issues/programs lists for the Station

for four quarters, and we conclude that the Licensee is apparently liable for a $4,000 forfeiture for this

public file violation. The Licensee further failed to file its Children’s Television Programming Reports in

a timely manner for 3 quarters, and we therefore conclude that the Licensee is apparently liable for a

$3,000 forfeiture for this apparent violation. The Licensee further failed to report certain violations in its

renewal application and we therefore conclude that the Licensee is liable for a $3,000 forfeiture for this

violation. Based on the record before us, we therefore conclude that a total forfeiture in the amount of

$10,000 for the Station is appropriate for the Licensee’s apparent willful and/or repeated violations of

Sections 73.3526(e)(11)(i) and (iii) and Section 73.3514(a).

IV. ORDERING CLAUSES

9.

Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act

of 1934, as amended, and Section 1.80 of the Commission’s Rules, that Community Broadcast Group,

Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of Ten

Thousand Dollars ($10,000) for its apparent willful and/or repeated violations of Sections 73.3526 and

73.3514 of the Commission’s Rules.

10.

IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s Rules, that,

within thirty (30) days of the release date of this NAL, Community Broadcast Group, Inc. SHALL PAY

the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or

cancellation of the proposed forfeiture.

11.

In the event that the Licensee wishes to revert WMNT-CA to low power television status,

the Licensee need only notify us of this election and request a change in status for the station.16

Should

the Licensee elect to revert WMNT-CA to low power status, the Licensee would no longer be apparently

liable for the forfeiture amount described herein.

12.

Payment of the proposed 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. Nos.

and FRN Nos. referenced in the caption above.

Payment by check or money order may be mailed to

Federal Communications Commission, at 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, BNF: FCC/ACV--27000001 and account number as expressed

on the remittance instrument.

If completing the FCC Form 159, enter the NAL/Account numbers in

block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type

code). Licensee will also send electronic notification on the date said payment is made to

Peter.Saharko@fcc.gov.

14 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) (“Forfeiture Policy Statement”), recon. denied,

15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section I.

15 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100-01; 47 C.F.R. § 1.80(b)(4)

and note to paragraph (b)(4), Section II.

16 See 47 C.F.R. § 73.6001(d).

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Federal Communications Commission

DA 14-955

13.

The response, if any, must be mailed to Office of the Secretary, Federal Communications

Commission, 445 12th Street, S.W., Washington, D.C. 20554, ATTN: Peter D. Saharko, Attorney

Adviser, Video Division, Media Bureau, and MUST INCLUDE the NAL/Acct. Nos. referenced above. If

possible, an electronic copy should also be sent via email to peter.saharko@fcc.gov.

14.

The Commission will not consider reducing or canceling a forfeiture in response to a

claim of inability to pay unless the respondent submits: (1) federal tax returns for the most recent three-

year period; (2) financial statements prepared according to generally accepted accounting practices

(“GAAP”); or (3) some other reliable and objective documentation that accurately reflects the

respondent’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.

15.

Requests for full payment of the forfeiture proposed in this NAL under the installment

plan should be sent to: Associate Managing Director- Financial Operations, 445 12th Street, S.W., Room

1-A625, Washington, D.C. 20554.17

16.

IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and

Certified Mail, Return Receipt Requested, to Community Broadcast Group, Inc., P.O. Box 351896,

Toledo, Ohio, 43635, and to its counsel, Jeffrey L. Timmons, Esq., 1110 Whitehawk Trail, Lawrenceville,

Georgia, 30043.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

17 See 47 C.F.R. § 1.1914.

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