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Triplett & Associates, Inc.

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Released: November 2, 2012

Federal Communications Commission

DA 12-1761

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Triplett & Associates, Inc.
)
Facility I.D. No. 54414
Licensee of Station WDEM-CD
)
NAL/Acct. No. 201241420011
Columbus, Ohio
)
FRN: 0005301270

NOTICE OF APPARENT

LIABILITY FOR FORFEITURE

Adopted: November 1, 2012

Released: November 2, 2012

By the Chief, Video Division, Media Bureau:

I. INTRODUCTION

1. In this Notice of Apparent Liability for Forfeiture (“NAL”),1 we find that Triplett &
Associates, Inc. (the “Licensee”), licensee of Class A television station WDEM-CD, Columbus, Ohio (the
“Station”), apparently willfully and repeatedly violated Section 73.3526(e)(11)(iii) of the Rules, by failing
to file with the Commission the Station’s Children’s Television Programming Reports.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 three thousand dollars ($3,000).

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 for the public the existence and location of the reports. Where lapses occur
in maintaining the public file, neither the negligent acts nor omissions of station employees or agents, nor
the subsequent remedial actions undertaken by the licensee, excuse or nullify the licensee’s rule
violation.4
3.
On March 31, 2011, the Chief, Video Division, Media Bureau, issued a letter to the
Licensee (“Letter”), stating that Commission records indicated that the Licensee failed to make the


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 See 47 C.F.R. § 73.3526(e)(11)(iii).
3 47 C.F.R. § 73.3526.
4 See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (MMB 1999) (citing Gaffney Broadcasting, Inc., 23
FCC 2d 912, 913 (1970) and Eleven Ten Broadcasting Corp., 33 FCC 706 (1962)); Surrey Front Range Limited
Partnership
, 7 FCC Rcd 6361 (FOB 1992).

Federal Communications Commission

DA 12-1761

required Form 398 electronic filings for WDEM-CD for the first, second and third quarters in 2007, the
fourth quarter in 2009 and the first quarter in 2010. The Letter required the Licensee to provide
information, supported by the declaration of a person with personal knowledge,5 identifying the quarters
in 2007, 2009, and 2010 for which a Children’s Television Programming Report was prepared and placed
in the Station’s public inspection file, and the location of the file. The Letter further required that this
information be filed within 30 days, and stated that failure to provide the requested information, or to
notify the staff that the Licensee was electing to let the Station revert to low power television status,
would result in the institution of a forfeiture proceeding and/or loss of Class A television status.
4.
On May 13, 2011, the Licensee filed a Response to the Letter, stating that it believed
Children’s Television Programming Reports were prepared for the station for each quarter in 2007, 2009,
and 2010, but copies of two of the reports could not be located. The licensee provided, through
contemporaneous printouts, copies of reports for the second and third quarters in 2007, and for the first
quarter in 2010. The licensee indicated its belief that these reports were filed electronically with the FCC,
but did not know why they do not appear in the FCC’s electronic filing system. The Licensee further
stated that all of the required reports for WDEM-CD were filed with the Commission.

III. DISCUSSION

5.
The Licensee’s failure to file the Children’s Television Programming Reports for
WDEM-CD with the Commission constitutes an apparent willful and repeated violation of Section
73.3526(e)(11)(iii). Although the violations apparently resulted from inadvertence, the Commission has
repeatedly rejected human error and inadvertence as a basis for excusing a licensee’s rule violation.6
Furthermore, corrective actions may have been taken to prevent subsequent violations of the children’s
television rules and policies, but that too, does not relieve the Licensee of liability for the violations which
have occurred.7
6.
This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision,
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.8 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.9 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,10 and the Commission has so interpreted the term in the Section
503(b) context.11 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


5 See 47 C.F.R. § 1.16.
6 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991) (“’Inadvertence’ ... is at best, ignorance of the law, which the Commission does not consider a
mitigating circumstance.”); recon. denied, 7 FCC Rcd 3454 (1992); Standard Communications Corp., 1 FCC Rcd
358 (1986) (“Employee acts or omissions, such as clerical errors in failing to file required forms, do not excuse
violations.”)
7 See, e.g., Sage Broadcasting Corporation, 23 FCC Rcd 8160, 8162 (Vid. Div. 2008); HP Television, L.P., 10 FCC
Rcd 4979, 4980 (MMB 1995); Mountain States Broadcasting, Inc., 9 FCC Rcd 2545, 2546 (MMB 1994).
8 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1).
9 47 U.S.C. § 312(f)(1).
10 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
11 See Southern California Broadcasting Co., 6 FCC Rcd at 4388.
2

Federal Communications Commission

DA 12-1761

than once or, if such commission or omission is continuous, for more than one day.”12
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.13 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.”14
8.
In this case, the Licensee has acknowledged that Children’s Television Programming
Reports for the first, second and third quarters in 2007, the fourth quarter in 2009 and the first quarter in
2010 were not filed with the Commission. Based on the record before us, we believe that a forfeiture in
the amount of $3,000 is appropriate for the Licensee’s apparent willful and repeated violations of Section
73.3526(e)(11)(iii).

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 Triplett & Associates, Licensee of
WDEM-CD, is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
three thousand dollars ($3,000) for its apparent willful and repeated violations of Section 73.3526 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, the Licensee SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed
forfeiture.
11.
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. No.
and FRN No. 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 number 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
Shaleim.Henry@fcc.gov.
12.
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: Barbara A. Kreisman, Chief,
Video Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.
13.
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-


12 47 U.S.C. § 312(f)(2).
13 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.
14 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.
3

Federal Communications Commission

DA 12-1761

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.
14.
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. 20554.15
15.
IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and
Certified Mail, Return Receipt Requested, to Triplett & Associates, P.O. Box 356, Bellefontaine, Ohio
43311, and to its counsel, Jonathan E. Allen, Rini Coran, PC, 1140 19th Street, N.W., Suite 600,
Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Barbara A. Kreisman
Chief, Video Division
Media Bureau


15 See 47 C.F.R. § 1.1914.
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