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Rebecca L. White

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Released: December 6, 2013

Federal Communications Commission

DA 13-2334

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of:
)
)
)

Rebecca L. White
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FRN: 0003777984
Licensee of Station WHAN-LP
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NAL/Acct. No. 201341420052
Salem, Indiana
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Facility ID No. 55315
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FORFEITURE ORDER

Adopted: December 5, 2013

Released: December 6, 2013

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 Rebecca L. White, licensee of Station WHAN-LP,
Salem, Indiana, repeatedly violated (i) Section 73.3526(e)(11)(iii) of the Commission’s Rules by
failing to file timely with the Commission the Station’s Children’s Television Programming
Reports (FCC Form 398) in a timely manner and (ii) Section 73.3514(a) of the Rules by failing to
report the violations in its renewal application. Based on our review of the facts and
circumstances, we find the Licensee liable for a forfeiture of Two Thousand Six Hundred Dollars
($2,600.00).

II. BACKGROUND

2.
The Video Division issued a Notice of Apparent Liability (“NAL”) for Forfeiture on
September 27, 2013.2 The NAL notified the Licensee that its failure to file timely its Children’s
Television Programming Reports for 29 quarters during the license period constituted an apparent
willful or repeated violation of Section 73.3526(e)(11)(iii) of the Commission’s rules3 and that the
Station’s failure to report the violations in its renewal application represented a violation of Section
73.3514(a) of the Rules.4 The Division concluded that the Licensee was apparently liable for a
forfeiture of $15,000.
3.
In a timely response dated October 28, 2013, the Licensee admitted that it could
not rebut the claimed violations but asserted that the proposed forfeiture amount should be
reduced based on the Licensee’s inability to pay.5


1 47 C.F.R. §§ 0.61(f)(1), 1.80(a)(1) & (2).
2Rebecca L. White., Notice of Apparent Liability for Forfeiture, DA 13-1996 (Sept. 27, 2013).
3 47 C.F.R. § 73.3526(e)(11)(iii).
4 47 C.F.R. § 73.3514(a).
5 Licensee Response to Notice of Apparent Liability (“Licensee Response”) (Oct. 28, 2013) at 1-4.

Federal Communications Commission

DA 13-2334

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
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
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.7 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.8 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) and Section 73.3514(a) of the Commission’s
rules. We ultimately conclude that the forfeiture amount should be reduced from $15,000 to
$2,600.
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.9 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.10 Commission rules further require that each application
filed by a licensee “shall include all information called for by the particular form on which the
application is required to be filed. …”11
6.
Commission policy establishes a base forfeiture amount of $3,000 for failure to file a
required form or provide required information.12 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


6 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).
7 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
8 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7591 (2002).
9 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).
10 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).
11 47 C.F.R. § 73.3514(a).
12 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).
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Federal Communications Commission

DA 13-2334

forfeiture amount of $15,000.
7.
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 or that it
failed to report the violations in the renewal application. These deficiencies, regardless of the cause,
constitute repeated violations of the relevant Commission rules.
8.
Licensee argues that it cannot afford to pay the forfeiture.13 The Commission will
not consider reducing or canceling a forfeiture in response to a claimed 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.14 Here, the Licensee provided three years of tax returns to
support its argument that it cannot pay the forfeiture amount.15
9.
In the NAL, the Video Division proposed a forfeiture amount of $15,000. Having
carefully reviewed the Licensee’s submitted documentation, we reduce the forfeiture to $2,600, and
we conclude the revised forfeiture amount is in line with previous forfeitures the Commission has
determined are not excessive relative to the Licensee’s ability to pay.16

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,17 Waters & Brock Communications, Inc. SHALL FORFEIT to the United
States the sum of Twelve Thousand Dollars ($12,000) for repeatedly violating 47 C.F.R. §
73.3526(e)(11)(iii) and 47 C.F.R. § 73.3514(a).
11.
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.
12.
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


13 Licensee Response at 2.
14 San Jose State University, Memorandum Opinion and Order, 26 FCC Rcd 5908 (2011).
15 The Licensee’s gross revenues over the past three years averaged $37,770.
16 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).
17 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.61(f)(1) & 1.80(a)(1)&(2).
3

Federal Communications Commission

DA 13-2334

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.
13.
IT IS FURTHER ORDERED THAT a copy of this FORFEITURE ORDER shall
be sent by Certified Mail Return Receipt Requested to Rebecca L. White, P.O. Box 385, Salem,
Indiana, 47167, and to counsel, John E. Selent, Dinsmore & Shohl LLP, 101 South Fifth Street,
Suite 2500, Louisville, Kentucky, 40202.
FEDERAL COMMUNICATIONS COMMISSION
Barbara A. Kreisman
Chief, Video Division
Media Bureau
4

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