Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Waubonsee Community College

Download Options

Released: November 20, 2012

Federal Communications Commission

DA 12-1870

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Waubonsee Community College
)
Facility I.D. No. 71111
Licensee of Station W40CN-D
)
NAL/Acct. No. 201241420012
Sugar Grove, Illinois
)
FRN: 0006490338

NOTICE OF APPARENT

LIABILITY FOR FORFEITURE

Adopted: November 19, 2012

Released: November 20, 2012

By the Chief, Video Division, Media Bureau:

I. INTRODUCTION

1. In this Notice of Apparent Liability for Forfeiture (“NAL”) 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”),1 by the Chief, Video Division, Media Bureau, pursuant to authority delegated under
Section 0.283 of the Rules,2 we find that Waubonsee Community College (the “Licensee”), licensee of
Class A television station W40CN-D, Sugar Grove, Illinois (the “Station”), apparently willfully and
repeatedly violated Section 73.3526(e)(11)(iii) of the Rules, by failing to file with the Commission, and
place in the Station’s public inspection file, the Station’s Children’s Television Programming Reports.3
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 thirteen thousand dollars ($13,000).

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.4 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 inspection 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


1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
2 See 47 C.F.R. § 0.283.
3 See 47 C.F.R. § 73.3526(e)(11)(iii).
4 47 C.F.R. § 73.3526.

Federal Communications Commission

DA 12-1870

rule violation.5
3.
On March 23, 2011, the Chief, Video Division, Media Bureau, issued a letter to the
Licensee (“Letter”), stating that Commission records indicated that the required Form 398 electronic
filings for W40CN-D had not been made for the fourth quarter of 2008 and all four quarters of 2009 and
2010. The Letter required the Licensee to provide information, supported by the declaration of a person
with personal knowledge,6 identifying the quarters in 2008, 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 April 22, 2011 the Licensee filed a response to the Letter (“Response”), and on
September 20, 2012 the Licensee supplemented that Response (“Supplement”). In its Response, the
Licensee claims that it was not required to electronically file and maintain in its public file quarterly Form
398 reports for the years 2008-2010. The Licensee explains that while it filed to convert its authorized
LPTV construction permit facility to a Class A Facility on August 12, 2008,7 it did not file its license to
cover construction permit for its Class A facility until January 3, 2011.8 Thus, the Licensee states that it
was not required to file electronic quarterly Form 398 reports and maintain such reports in its pubic file
until April 10, 2011, when such a report was prepared and filed by the Licensee. The Licensee also notes
that the instructions for FCC Form 398 specifically refer to “licensees,” and not to “permittees,” as was
the Station’s status from 2008-2010. In its Supplement, the Licensee reiterates its arguments presented
in its Response and further explains that from the time it filed its application to convert its authorized
LPTV construction permit to Class A status in 2008, W40CN-D met all Class A programming
requirements, including children’s programming.9

III. DISCUSSION

5.
The Licensee’s failure to file quarterly Form 398, Children’s Television Programming
Reports for W40CN-D with the Commission and place such reports in the Station’s public inspection file
constitutes an apparent willful and repeated violation of Section 73.3526(e)(11)(iii). The Licensee was
required to file quarterly Form 398 reports and place such reports in its public file beginning with the last
quarter of 2008, the first quarter after the licensee filed to convert its authorized LPTV construction
permit facility to a Class A Facility.10 In its CP Conversion Application, the Licensee certified that it was
in compliance with the operating requirements set forth in subpart H and J of 47 C.F.R. Part 73 that are
applicable to Class A stations.11 Therefore, with the submission of the CP Conversion Application, the
Licensee certified that it was in compliance with the requirement to file quarterly Form 398, Children’s
Television Programming Reports with the Commission and place such reports in the Station’s public


5 See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999) (citing Gaffney Broadcasting, Inc., 23 FCC 2d
912, 913 (1970) and Eleven Ten Broadcasting Corp., 33 FCC 706 (1962)); Surrey Range Limited Partnership, 71
RR 2d 882 (FOB 1992).
6 See 47 C.F.R. § 1.16.
7 FCC File No. BLTTA-20080812ACU (granted Nov. 7, 2008) (“CP Conversion Application”).
8 FCC File No. BLDTA-201101103ACG (granted Fed. 2, 2011).
9 The Licensee electronically filed all of its missing Form 398 reports with the Commission in September 2012.
10 FCC File No. BLTTA-20080812ACU (granted Nov. 7, 2008).
11 Id. at §II, no. 10.
2

Federal Communications Commission

DA 12-1870

inspection file, as required by Section 73.3526(e)(11)(iii).12 Although the Licensee essentially argues that
the violations resulted from inadvertence, the Commission has repeatedly rejected human error and
inadvertence as a basis for excusing a licensee’s rule violation.13 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.14
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.15 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.16 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,17 and the Commission has so interpreted the term in the Section
503(b) context.18 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.”19
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 and a base forfeiture
amount of $10,000 for public file violations.20 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.”21
8.
In this case, the Licensee has acknowledged that it failed to file with the Commission and
place in the public inspection file Children’s Television Programming Reports for the fourth quarter of
2008 and all four quarters in 2009 and 2010. Based on the record before us, we believe that a forfeiture in
the amount of $13,000 is appropriate for the Licensee’s apparent willful and repeated violations of
Section 73.3526(e)(11)(iii).


12 47 C.F.R. 73.3526(e)(11)(iii).
13 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); Southern California Broadcasting Co., 6
FCC Rcd 4387, 4387 (1991), recon. denied, 7 FCC Rcd 3454 (1992) (“Inadvertence ... is at best, ignorance of the
law, which the Commission does not consider a mitigating circumstance.”); 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.”)
14 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).
15 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1).
16 47 U.S.C. § 312(f)(1).
17 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
18 See Southern California Broadcasting Co., 6 FCC Rcd at 4388.
19 47 U.S.C. § 312(f)(2).
20 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.+
21 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 12-1870

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 Waubonsee Community College
is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of thirteen
thousand dollars ($13,000) 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, Waubonsee Community College 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
adrienne.denysyk@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-
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. 20554.22


22 See 47 C.F.R. § 1.1914.
4

Federal Communications Commission

DA 12-1870

15.
IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and
Certified Mail, Return Receipt Requested, to Waubonsee Community College, c/o James Pike, Route 47
at Waubonsee Drive, Sugar Grove, IL 60554, and to its counsel, Shainis & Peltzman, Chartered, c/o Lee
J. Peltzman, Esq., 1850 M Street, NW, Suite 240, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Barbara A. Kreisman
Chief, Video Division
Media Bureau
5

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.