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Glendive Broadcasting Corp.

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Released: July 18, 2014
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Federal Communications Commission

DA 14-1006

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of:

)

)

Facility I.D. No. 242877

Glendive Broadcasting Corp.

)

NAL/Acct. No. 201441420017

Licensee of Station KXGN-TV

)

FRN: 0003749892

Glendive, Montana

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FORFEITURE ORDER

Adopted: July 18, 2014

Released: July 18, 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 Glendive Broadcasting Corp. (“Licensee’), licensee of Station KXGN-

TV, repeatedly violated Section 73.3526(e)(11)(iii) of the Commission’s Rules by failing to file its

Children’s Television Programming Reports (FCC Form 398) in a timely manner. We further conclude

that the License repeatedly violated Section 73.3514 of the Commission’s rules through its failure to

report the violations on its 2005 license renewal application. Based on our review of the facts and

circumstances, we find the Licensee liable for a forfeiture of Fifteen Thousand Dollars ($15,000.00).

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.2

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. Those reports must be prepared and placed in the public file by 10 days

after the close of the reporting quarter. That subsection also contains a separate and independent

requirement that licensees file the reports with the Commission by 10 days after the close of the reporting

quarter.

3.

Section 73.3514(a) 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.”

4.

Licensee filed its 2005 renewal application on December 1, 2005.3

In an exhibit to that

application, the Licensee certified that “KXGN-TV’s local public inspection file is complete and all

documentation was placed in the file at the appropriate time, but for the station’s 2004 Annual EEO

1

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

2 47 C.F.R. § 73.3526.

3 File No. BRCT-20051201BUV.

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Federal Communications Commission

DA 14-1006

Public File Report.”4

The 2005 license renewal application remains pending.

5.

On December 2, 2013, the Licensee filed its license renewal application (FCC Form 303-S)

for the Station (the “Application”).5

The Licensee reported that it failed to file its Children’s Television

Programming Reports in a timely manner for eight quarters for the Station since the last renewal

application was filed.6

A review of Commission records showed that an additional 14 reports were filed

late since the Station’s last renewal, which occurred in 1998.

6.

The Video Division issued a Notice of Apparent Liability (“NAL”) for Forfeiture on May 14,

2014.7

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

Programming Reports constituted an apparent willful or repeated violation of the provisions of Section

73.3526(e)(11)(iii) of the Commission’s rules.8

The Division concluded that the Licensee was apparently

liable for a forfeiture of $15,000. In a timely response dated June 13, 2014, the Licensee asserted that the

proposed forfeiture amount should be cancelled or reduced.9

III. DISCUSSION

7.

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 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.10

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.11

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.12

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 no reduction in the forfeiture amount is justified.

8.

The Commission rules establish that full power television stations 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

4 Id., Exh. 17.

5 File No. BRCDT-20131202CJE.

6 Id., Exhibit 20.

7Glendive Broadcasting Corp., Notice of Apparent Liability for Forfeiture, DA 14-645 (Vid. Div. May 14, 2014).

8 47 C.F.R. § 73.3526(e)(11)(iii).

9 Licensee Response to Notice of Apparent Liability (“Licensee Response”) (Jun. 13, 2014).

10 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).

11 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

12 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7591 (2002).

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Federal Communications Commission

DA 14-1006

Commission.13

The Licensee does not dispute its earlier admission it failed to file in a timely manner its

Children’s Television Programming Reports for 8 quarters. Nor does the Licensee dispute our finding that

it failed to file with the Commission in a timely manner the reports for numerous other quarters. These

deficiencies, regardless of the cause, constitute repeated violations of the relevant Commission rules.

9.

The Commission’s Forfeiture Policy Statement establishes a base forfeiture amount of $3,000

for failure to file a required form.14

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 Video Division proposed a forfeiture amount of $15,000.

Licensee argues that the forfeiture amount should be reduced or cancelled.

10. The Licensee first argues that the staff incorrectly calculated the number of quarters in which

reports were filed late.15

The Licensee contends that the timeliness of any filing should be measured by

the “Report Dated” line completed on the report by the Licensee, rather than the “Filed On” reporting

date, which is an automated record of the date of the report’s receipt by the Commission.

11. The Licensee has provided no verifiable evidence of the Commission’s receipt of the reports

in a timely manner.16

When a report is submitted 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 or other evidence such as a hard copy of the originally filed

report to confirm such filing.17

The Licensee provided no such evidence here, and we conclude that the

staff’s calculation was correct.18

We thus deny the Licensee’s request that the forfeiture amount be

reduced on this basis.

12. The Licensee next argues that enforcement of the NAL is statutorily barred under Section

2462 of Title 28 of the U.S. Code,19 which imposes five-year statute of limitations on government

enforcement of forfeitures.20

Section 2462 governs only the initiation of collection actions by the United

States Department of Justice, not the Commission’s issuance of forfeitures.21

13 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).

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), recon. denied, 15 FCC Rcd 303 (1999); 47

C.F.R. § 1.80(b)(4).

15 Licensee Response at 3-4.

16 Carolina Rays, LLC, Forfeiture Order, 28 FCC Rcd 10068, 10070 (Vid. Div. 2013)

17 See, e.g., KPLC License Subsidiary, LLC, Order, 28 FCC Rcd 15635 (Vid. Div. 2013); Price Media Corp., Order,

28 FCC Rcd 11817 (Vid. Div. 2013).

18 Carolina Rays, LLC, 28 FCC Rcd at 10070. There are additional problems with the Licensee’s filings. For

example, the Licensee claims that the report for the first quarter of 2004 was filed on March 19, 2004, twelve days

before the close of that reporting period, but does not explain how it could certify the airing of programming from

March 19 through March 31 that had not yet aired.

19 Licensee Response at 4-5 (citing 28 U.S.C. § 2462).

20 Licensee Response at 3-4 (citing 47 U.S.C. § 503(b)(6)(B & 28 U.S.C. § 2462).

21 Radio License Holdings, LLC, Memorandum Opinion and Order, 26 FCC Rcd 10346, 10347-48 (Aud. Div. 2011)

(citing Evergreen Media Corp. of Chicago AM, Memorandum Opinion and Order, 6 FCC Rcd 5950, 5950 n. 9 (MB

1991)). We also conclude that the 2012 and 2013 violations would be sufficient on their own to sustain the

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Federal Communications Commission

DA 14-1006

13. Nonetheless, we further conclude that an alternative basis for the forfeiture amount proposed

is the Licensee’s continuing violation of Section 73.3514(a) of the Rules. The Licensee’s failure to report

its late filing of 14 Children’s Television Programming Reports on its 2005 renewal application

represents a continuing violation that continued through the filing of the Licensee’s response to this

NAL.22 “[A] failure to report certain conditions will generally constitute a continuing violation for so

long as the failure to report persists.”23 This continuing violation means that a new claim accrued each

day that the Licensee failed to report the violation, and therefore the collection statute of limitations does

not apply.24

14. We thus conclude that the forfeiture amount proposed in the NAL should not be reduced.

IV. ORDERING CLAUSES

15. 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,25 Glendive Broadcasting Corporation SHALL FORFEIT to the United States the

sum of Fifteen Thousand Dollars ($15,000) for repeatedly violating Section 73.3526(e)(11)(iii) of the

Commission’s rules.

16. 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 the payment to Peter Saharko at

peter.saharko@fcc.gov on the date payment is made.

17. 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.

proposed $15,000 forfeiture, given our authority under the statute and Forfeiture Policy Statement to consider the

degree of culpability, history of prior offenses, and other matters as justice may require in determining the

appropriate forfeiture amount. 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.

22 See SBC Communications Inc. v. F.C.C., 373 F.3d 140, 142.

23 Interamericas Investments, Ltd. v. Board of Governors of the Federal Reserve System, 111 F.3d 376, 382 (5th Cir.

1997); see also First Broadcasting Corp., Notice of Apparent Liability for Forfeiture, 3 FCC Rcd 2758, 2758 (1988)

(finding a continuing violation based on failure to report).

24 Interamericas Investments, Ltd., 11 F.3d at 382.

25 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.61(f)(1) & 1.80(a)(1)&(2).

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Federal Communications Commission

DA 14-1006

18.

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

by Certified Mail Return Receipt Requested to Glendive Broadcasting Corp., 210 S. Douglas, Glendive,

Montana, 59330, and to its counsel, David Oxenford, Wilkinson Barker Knauer LLP, 2300 N Street NW,

Suite 700, Washington, D.C. 20037-1128.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

5

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