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WDKA Acquisition Corporation

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Released: September 23, 2013

Federal Communications Commission

DA 13-1941

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

WDKA Acquisition Corporation
)
Facility I.D. No. 39561
Licensee of Station WDKA(TV)
)
NAL/Acct. No.: 201341420049
Paducah, Kentucky
)
FRN: 5013164

NOTICE OF APPARENT

LIABILITY FOR FORFEITURE

Adopted: September 19, 2013

Released: September 23, 2013

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 the Commission finds that WDKA Acquisition Corporation (the
"Licensee"), licensee of Station WDKA(TV), Paducah, Kentucky ("WDKA"), apparently willfully
violated Section 73.3539(a) of the Rules by failing to timely file with the Commission its Application for
Renewal of Broadcast Station License (Form 303-S). 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 one thousand, five hundred dollars ($1,500).

II.

BACKGROUND:

2.
Section 73.3539(a) of the Rules requires a broadcast television license renewal
application to be filed "not later than the first day of the fourth full calendar month prior to the expiration
date of the license sought to be renewed...."2 The Licensee's last license renewal for WDKA was granted
on June 6, 2006, and was scheduled to expire on August 1, 2013. In accordance with Section 73.3539(a)
of the Rules, the Licensee was required to file its Form 303-S to renew the license of WDKA on or before
April 1, 2013. Licensee did not file its Form 303-S until May 6, 2013.3

III.

DISCUSSION

3.
The Licensee failed to file a timely application for renewal of its broadcast license for
WDKA. A Form 303-S for WDKA was not filed with the Commission until May 6, 2013--one month
and five days after the filing deadline. This late filing constitutes an apparent willful violation of Section
73.3539(a) of the Rules. In its late-filed application, Licensee did not provide any excuse or extenuating
circumstances demonstrating why its Form 303-S was filed late.
4.
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


1 47 U.S.C. 503(b); 47 C.F.R. 1.80.
2 47 C.F.R. 73.3539(a).
3 See BRCDT-20130506ACG.

Federal Communications Commission

DA 13-1941

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."4 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.5
Furthermore, the Commission has held that an inadvertent error, oversight or failure to become familiar
with Commission requirements are willful violations.6 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,7 and the
Commission has so interpreted the term in the Section 503(b) context.8
5.
The Commission's Forfeiture Policy Statement and Section 1.80(b) of the Rules establish
a base forfeiture amount of $3,000 for failure to file a required form.9 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."10 With the exception of the Licensee's late-
filed Form 303-S, over the course of its current license term the Licensee has demonstrated a history of
compliance with the Rules, including the preparation and maintenance of quarterly issues and programs
lists11 and timely filing of quarterly filing Children's Television Programming Reports.12 Based on our
review of the facts and circumstances here, including WDKA's history of filing other required
Commission documents in a timely fashion, we find that the Licensee is liable for a forfeiture in the
amount of $1,500 for its apparent willful violation of Section 73.3539(a) of the Rules.

IV.

ORDERING CLAUSES

6.
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 WDKA Acquisition Corporation
is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of one thousand,
five hundred dollars ($1,500) for its apparent willful violations of Section 73.3539(a) of the
Commission's Rules.


4 47 U.S.C. 503(b)(1)(B); see also 47 C.F.R. 1.80(a)(1).
5 47 U.S.C. 312(f)(1); See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd
4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992) ("Southern California") (stating that "Commission
interpretations of "willful" do not require licensee intent to engage in a violation").
6 See PJB Communications of Virginia, Inc., Memorandum Opinion and Order 7 FCC Rcd 2088 (1992) (asserting
that "[t]he fact that a licensee's violation occurred through inadvertence does not prevent it from being willful. It is
not necessary that the violation be intentional"); see also Southern California, 6 FCC Rcd at 4387 (finding that
"inadvertence ... is at best, ignorance of the law, which the Commission does not consider a mitigating
circumstance"); Standard Communications Corp., Memorandum Opinion and Order, 1 FCC Rcd 358 (1986) (stating
that "employee acts or omissions, such as clerical errors in failing to file required forms, do not excuse violations").
7 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
8 See Southern California, 6 FCC Rcd at 4388.
9 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), Section I.
10 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)(5);
47 C.F.R. 1.80(b), Section II.
11 47 C.F.R. 73.3526(e)(11)(i).
12 47 C.F.R. 73.3526(e)(11)(iii).
2

Federal Communications Commission

DA 13-1941

7.
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, WDKA Acquisition Corporation SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
8.
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).
9.
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.
10.
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
11.
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. 20554.14
12.
IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and
Certified Mail, Return Receipt Requested, to WDKA Acquisition Corporation, P.O. Box 346, Rescue,
Virginia, 23424, and to its counsel, Arthur V. Belendiuk, Esq., Smithwick & Belendiuk, P.C., 5028
Wisconsin Avenue, N.W., Suite 301, Washington, D.C., 20016.
FEDERAL COMMUNICATIONS COMMISSION
Barbara A. Kreisman
Chief, Video Division
Media Bureau


13 See San Jose State Univ., 26 F.C.C. Rcd. 5908 (2011) (noting that "[t]ypically, the Commission uses gross
revenue as the primary measuring stick by which it evaluates a licensee's ability to pay. Other financial indicators
may be considered....").
14 See 47 C.F.R. 1.1914.
3

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