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Midessa Television Limited Partnership

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Released: July 31, 2014
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Federal Communications Commission

DA 14-1088

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Midessa Television Limited Partnership

)

Facility I.D. Nos. 42007 & 42008

Licensee of Stations KWAB-TV & KWES-TV

)

NAL/Acct. 201441420027

Big Spring, TX & Odessa, TX

)

FRN: 0001663863

)

NOTICE OF APPARENT

LIABILITY FOR FORFEITURE

Adopted: July 31, 2014

Released: July 31, 2014

By the Deputy Chief, Video Division, Media Bureau:

I. INTRODUCTION

1.

In this Notice of Apparent Liability for Forfeiture (“NAL”)1, we find that Midessa Television

Limited Partnership (the “Licensee”), licensee of full power television stations KWAB-TV and KWES-

TV (the “Stations”), apparently willfully and/or repeatedly violated the Commission’s Rules by failing to

file timely with the Commission the Stations’ Children’s Television Programming Reports, in violation of

Section 73.3526(e)(11)(iii).2

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 Six Thousand

Dollars ($6,000).

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.3 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.

3.

On April 1, 2014, the Licensee filed its license renewal applications (FCC Form 303-S)

for the Stations (the “Applications”).4

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

Programming Reports in a timely manner for multiple quarters for both stations.5

III. DISCUSSION

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)(iii).

3 47 C.F.R. § 73.3526.

4 File Nos. BRCDT-20140401AKT & AKU.

5 Id., Exhibit 20.

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Federal Communications Commission

DA 14-1088

4.

The Licensee’s failure to file with the Commission in a timely manner its Children’s

Television Programming Reports for multiple quarters constitutes an apparent willful and/or repeated

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

5.

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.6

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.7

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,8 and the Commission has so interpreted the term in the Section

503(b) context.9

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.”10

6.

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 or information.11

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.”12

7.

In this case, the Licensee failed to file its Children’s Television Programming Reports in

a timely manner for each station for multiple quarters, and we therefore conclude that the Licensee is

apparently liable for a $3,000 forfeiture for each station for these apparent violations. Based on the

record before us, we therefore conclude that a total forfeiture in the amount of $6,000 is appropriate for

the Licensee’s apparent willful and/or repeated violations of Section 73.3526(e)(11)(i).

IV. ORDERING CLAUSES

8.

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 Midessa Television Limited

Partnership is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of

Six Thousand Dollars ($6,000) for its apparent willful and/or repeated violations of Sections 73.3526 of

the Commission’s Rules.

9.

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, Midessa Television Limited Partnership SHALL

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

6 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1).

7 47 U.S.C. § 312(f)(1).

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

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

10 47 U.S.C. § 312(f)(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) (“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.

12 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.

2

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Federal Communications Commission

DA 14-1088

cancellation of the proposed forfeiture.

10.

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.

11.

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 Saharko, Attorney Advisor,

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

12.

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.

13.

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. 20554.13

14.

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

Certified Mail, Return Receipt Requested, to Midessa Television Limited Partnership, P.O. Box 60150,

Midland, Texas, 79711, and to its counsel, David Oxenford, Wilkinson Barker Knauer LLP, 2300 N

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

FEDERAL COMMUNICATIONS COMMISSION

Hossein Hashemzadeh

Deputy Chief, Video Division

Media Bureau

13 See 47 C.F.R. § 1.1914.

3

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