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Billy Ray Locklear Evangelical Association

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Released: December 19, 2013

Federal Communications Commission DA 13-2421

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of:
)
)

FRN: 0008231706
Billy Ray Locklear Evangelical Association
)
NAL/Acct. No. 201241420042
Licensee of Station WLPS-CD
)
Facility ID No. 167158
Lumberton-Pembroke, North Carolina

FORFEITURE ORDER

Adopted: December 18, 2013

Released: December 19, 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 Billy Ray Locklear Evangelical Association willfully
and/or repeatedly violated (i) Section 73.3526(e)(11)(iii) of the Rules by failing to file timely
with the Commission the Station’s Children’s Television Programming Reports2 and (ii) Section
1.17 of the Rules by failing to provide accurate information to the Commission.3 Based on our
review of the facts and circumstances, we find the Licensee liable for a forfeiture of Seven
Thousand Two Hundred Dollars ($7,200.00).

II. BACKGROUND

2.
The Video Division issued a Notice of Apparent Liability (“NAL”) for Forfeiture on
August 13, 2013.4
The NAL notified the Licensee that its failure to file timely with the
Commission the Station’s Children’s Television Programming Reports5 constituted apparent
willful and/or repeated violations of Section 73.3526(e)(11)(iii) of the Rules and the Licensee’s
failure to provide accurate information to the Commission constituted apparent willful and/or
repeated violations of Section 1.17 of the Commission’s rules.6 The Division concluded that the
Licensee was apparently liable for a forfeiture of $9,000. The Licensee filed a timely Response to
the Notice of Apparent Liability for Forfeiture on September 26, 2013.7

III. DISCUSSION



1 47 C.F.R. §§ 0.61(f)(1), 1.80(a)(1) & (2).
2 See 47 C.F.R. § 73.3526(e)(11)(iii).
3 47 C.F.R. § 1.17.
4 Billy Ray Locklear Evangelical Association, Notice of Apparent Liability, DA 13-1745 (Aug. 13, 2013).
The notice was sent to the Licensee’s address on record by certified mail, return receipt requested, and was
signed for by a representative of the licensee on July 26, 2013.
5 See 47 C.F.R. § 73.3526(e)(11)(iii).
6 47 C.F.R. § 1.17.
7 Licensee Response to Notice of Apparent Liability for Forfeiture (Aug. 28, 2013) (“Licensee Response”).

Federal Communications Commission

DA 13-2421

3.
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.8
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.9 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.10 As
we set forth in greater detail below, we conclude that the Licensee is liable for a forfeiture for
repeated violations of Sections 73.3526(e)(11)(iii) and 1.17 of the Commission’s rules. We
ultimately conclude that the forfeiture amount should be reduced to $7,200.
4.
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. 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.
5.
Section 1.17 of the Rules precludes any applicant for a Commission authorization
from providing “material factual information that is incorrect or omit[ting] material information
that is necessary to prevent any material factual statement that is made from being incorrect or
misleading. . . .”11
6.
The Licensee does not dispute the violations identified in the NAL occurred but
nonetheless argues that the forfeiture should be reduced or cancelled.12 First, the Licensee argues
that it demonstrated a good faith intent to comply with the rules and that the lateness of the reports
was not egregious.13 We take into account both how late a filing is and how often a Licensee has
made late filings in determining the appropriate forfeiture for a violation. The preparation and filing
of Children's Television Programming Reports with the Commission in a timely manner ensures
that the public and the Commission are able to review on a real-time basis the adequacy of the
station's efforts with respect to children's programming, and such public access is crucial to the


8 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).
9 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
10 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7591 (2002).
11 47 C.F.R. § 1.17.
12 Billy Ray Locklear Evangelical Association, Response to Notice of Apparent Liability for Forfeiture (Sept.
26, 2013) (“Licensee Response”) at 4.
13 Licensee Response at 4-5.
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Federal Communications Commission

DA 13-2421

success of the statute’s goals.14 The Licensee’s late filings, five of which were filed over a month
after the deadline, deprived the public and the Commission of that ability for real-time review.
We therefore conclude that the forfeiture amount is appropriate given the violations.
7.
Second, the Licensee argues that the filing of incorrect Class A certifications
represents a harmless error.15 We disagree. Class A television stations are accorded primary
spectrum use status pursuant to the Community Broadcasters Protection Act of 1999 (“CBPA”).16
To maintain Class A status, a Class A licensee must: (1) broadcast a minimum of 18 hours per
day and (2) broadcast an average of at least three hours per week of programming produced
within the market area served by the station.17 The Commission must rely on Licensees to certify
to their continuing compliance with these requirements. Any incorrect information provided in
such certifications undermines this system of review. We thus conclude that the failure to
provide correct information regarding a station’s continued compliance with our Rules represents
a significant harm to the public interest.
8.
Third, the Licensee claims an inability to pay the forfeiture amount. 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. Here, the Licensee provided financial documentation in an
effort to support its argument that it cannot pay the forfeiture amount.18
9.
Typically, the Commission uses gross revenue as the primary measuring stick by
which it evaluates a licensee's ability to pay.19 Indeed, “[i]f gross revenues are sufficiently great .
. . the mere fact that a business is operating at a loss does not itself mean that it cannot afford to
pay a forfeiture.”20 The Licensee notes that we have reduced forfeitures when gross revenues
were less than or slightly more than the proposed forfeiture, but then conflates gross revenues and
net revenues in arguing for a reduction here.21 Here, the Licensee’s documented gross revenues
are sufficiently great that we do not find a reduction appropriate.22
10.
Fourth, and finally, the Licensee argues that its history of compliance with
Commission rules favors a reduction in the forfeiture amount.23 Given the Licensee’s history of
compliance, we reduce the forfeiture amount to $7,200.


14 Highland Park Broadcasting, LP, Forfeiture Order, 28 FCC Rcd 11076, 11078 (Vid. Div. 2013).
15 Licensee Response at 5.
16 Community Broadcasters Protection Act of 1999, Pub. L. No. 106-113, 113 Stat. Appendix I at pp.
1501A-594 -l501A-598 (1999), codified at 47 U.S.C. § 336.
17 47 U.S.C. § 336(f)(2)(A)(i); 47 U.S.C.. § 336(f)(1)(A)(ii); 47 C.F.R. § 73.6001(b).
18 Licensee Response at 5-6. The Licensee further requested that the returns be treated as confidential
pursuant to Section 0.457(d)(2) of the Commission’s Rules.
19 San Jose State University, Memorandum Opinion and Order, 26 FCC Rcd 5908 (2011).
20 Forfeiture Policy Statement, 12 FCC Rcd at 17106 (citing PJB Communications of Virginia, Inc.,
Memorandum Opinion and Order, 7 FCC Rcd 2088 (1992))..
21 Licensee Response at 5-6.
22 Ayustar Corp., Memorandum Opinion and Order, 25 FCC Rcd 16249 (EB 2010).
23 Licensee Response at 4.
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Federal Communications Commission

DA 13-2421

IV. ORDERING CLAUSES

11.
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,24 Billy Ray Locklear Evangelical Association SHALL FORFEIT to the
United States the sum of seven thousand two hundred dollars ($7,200) for repeatedly violating 47
C.F.R. § 73.3526(e)(11) and 47 C.F.R. § 73.117.
12.
In the event that the Licensee wishes to revert WLPS-CD to low power television
status, the Licensee need only notify us of this election and request a change in status for the
station.25 Should the Licensee elect to revert the station to low power status, the Licensee would
no longer be apparently liable for the forfeiture amount described herein.
13.
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.
14.
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
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.
15.
IT IS FURTHER ORDERED THAT a copy of this FORFEITURE ORDER shall
be sent by Certified Mail Return Receipt Requested to Billy Ray Locklear Evangelical
Association, 3463 Oak Grove Church Road, Lumberton, North Carolina, 28360, and to its
counsel, David G. O’Neil, Esq. and Rini O’Neil, Esq., 1200 New Hampshire Avenue NW, Suite
800, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Barbara A. Kreisman
Chief, Video Division
Media Bureau


24 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.61(f)(1) & 1.80(a)(1)&(2).
25 See 47 C.F.R. § 73.6001(d).
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