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Released: August 14, 2014
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Federal Communications Commission DA 14-1181

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of:

)

)

)

D.T.V., LLC

)

FRN: 0013224662

Licensee of Station WPHA-CD

)

NAL/Acct. No. 201341420031

Philadelphia, Pennsylvania

)

Facility ID No. 72278

FORFEITURE ORDER

Adopted: August 14, 2014

Released: August 14, 2014

By the 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 D.T.V. LLC, licensee of Station WPHA-CD,

Philadelphia, Pennsylvania, repeatedly violated Section 73.3526(e)(11)(iii) of the Commission’s

Rules by failing to file 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 Nine Thousand Dollars ($9,000.00).

II. BACKGROUND

2.

The Video Division issued a Notice of Apparent Liability (“NAL”) for Forfeiture on

July 11, 2013.2

The NAL notified the Licensee that its failure to file timely its Children’s

Television Programming Reports in 15 quarters constituted an apparent willful or repeated violation

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 $9,000.

3.

After requesting numerous extensions to respond, Licensee filed a response dated

July 10, 2014, in which it admitted that it could not rebut the claimed violations but nonetheless

asserted that the proposed forfeiture amount should be reduced.4

III. DISCUSSION

4.

The Commission is authorized to license radio and television broadcast stations and

is responsible for enforcing the Commission’s rules and applicable statutory provisions

concerning the operation of those stations. Under section 503(b)(1) of the Act, any person who is

determined by the Commission to have willfully or repeatedly failed to comply with any

1

47 C.F.R. §§ 0.61(f)(1), 1.80(a)(1) & (2).

2 DTV, L.L.C, Notice of Apparent Liability for Forfeiture, 28 FCC Rcd 10112 (Vid. Div. 2013).

3 47 C.F.R. § 73.3526(e)(11)(iii).

4 Licensee Response to Notice of Apparent Liability (“Licensee Response”) (July 10, 2014) at 1-2.

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Federal Communications Commission DA 14-1181

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

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 for

repeated violations of Section 73.3526(e)(11)(iii) of the Commission’s rules. We ultimately

conclude that the forfeiture amount should not be reduced from the amount proposed in the NAL.

5.

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

6.

The Licensee does not dispute that it failed to prepare or file electronically its

Children’s Television Programming Reports with the Commission in a timely manner for 15

quarters. These deficiencies, regardless of the cause, constitute repeated violations of the relevant

Commission rules. Contrary to Licensee’s assertions, providing evidence that any member of the

public was deprived of timely access to the information10 is not a necessary element of a public file

violation.

7.

Commission policy establishes a base forfeiture amount of $3,000 for failure to file a

required form.11

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

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

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 Licensee Response at 2.

11 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).

2

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Federal Communications Commission DA 14-1181

$9,000. Licensee argues that the forfeiture amount should be reduced or cancelled because it

cannot afford to pay the forfeiture.12

8.

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) 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.13 Here, the Licensee provided

financial documentation in an effort to support its argument that it cannot pay the forfeiture

amount.14

9.

In the NAL, the Video Division proposed a forfeiture amount of $9,000. Having

carefully reviewed the Licensee’s submitted documentation, we do not find a basis to reduce the

forfeiture, as the forfeiture amount is in line with previous forfeitures the Commission has

determined are not excessive relative to the Licensee’s ability to pay.15

IV. ORDERING CLAUSES

10.

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,16 D.T.V., LLC SHALL FORFEIT to the United States the sum of Nine

Thousand Dollars ($9,000) for repeatedly violating Section 47 U.S.C. § 336(f)(2)(A)(ii) and 47

C.F.R. § 73.3526(e)(11)(iii).

11.

In the event that the Licensee wishes to revert WPHA-CD to low power television

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

station.17

Should the Licensee elect to revert the station to low power status, the Licensee would

no longer be liable for the forfeiture amount described herein.

12.

Payment of the forfeiture shall be made in the manner provided for in Section 1.80

(h) of the Commission’s rules within thirty (30) 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

12 Licensee Response at 2-3.

13 San Jose State University, Memorandum Opinion and Order, 26 FCC Rcd 5908 (2011).

14 The Licensee provided tax returns and requested that the returns be treated as confidential pursuant to

Section 0.457(d)(2) of the Commission’s Rules.

15 Hoosier Broadcasting Corporation, Memorandum Opinion and Order, 15 FCC Rcd 8640, 8641 (EB

2002) (forfeiture not deemed excessive where it represented approximately 7.6 percent of the violator's

gross revenues); Bruno Goodworth Network, Inc., Forfeiture Order, DA 13-1585, 2013 WL 3777827 (Vid.

Div. Jul. 18, 2013) (forfeiture amount reduced to approximately 7 percent of the violator’s gross revenues).

We only evaluate the Licensee’s ability to pay the $9,000 forfeiture issued by the Media Bureau nearly a year

ago. The Licensee is free to submit a request for reduction or cancellation separately in response to the NAL

issued by the Enforcement Bureau in April 2014.

16 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.61(f)(1) & 1.80(a)(1)&(2).

17 See 47 C.F.R. § 73.6001(d).

3

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Federal Communications Commission DA 14-1181

the payment to Peter Saharko at peter.saharko@fcc.gov on the date payment is made.

13.

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.

14.

IT IS FURTHER ORDERED THAT a copy of this FORFEITURE ORDER shall

be sent by Certified Mail Return Receipt Requested to D.T.V. LLC, 1903 South Greeley

Highway, #127, Cheyenne, Wyoming, 82007-3447, and to its counsel, Peter Tannenwald,

Esquire, Fletcher, Heald & Hildreth, 1300 North 17th

Street, 11th

Floor, Arlington, Virginia

22209.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

4

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