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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
HTV/HTN/Hawaiian TV Network, Ltd. File Number: EB-06-HL-056
)
Licensee of Class A Television Station NAL/Acct. No.:
KHLU-LP ) 200632860003
Honolulu, Hawaii ) FRN: 0003787835
Facility ID # 27969 )
)
FORFEITURE ORDER
Adopted: May 22, 2007 Released: May 24, 2007
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of five thousand, six hundred dollars ($5,600) to
HTV/HTN/Hawaiian TV Network, Ltd. ("HTV"), licensee of station
KHLU-LP, in Honolulu, Hawaii, for willfully and repeatedly violating
Section 73.1125(a) of the Commission's Rules ("Rules"). On September
28, 2006, the Enforcement Bureau's Honolulu Resident Agent Office
issued a Notice of Apparent Liability for Forfeiture ("NAL") in the
amount of $7,000 to HTV for failing to maintain a local main studio in
its community of license. In this Order, we consider HTV's arguments
that the proposed forfeiture amount is not consistent with the
magnitude of the violation, given that HTV maintained a main studio
for KHLU-LP; that HTV will have financial difficulty paying the
forfeiture amount; and that the forfeiture amount should be reduced
based on HTV's history of compliance and its good faith effort to
maintain a main studio for KHLU-LP.
II. BACKGROUND
2. On Wednesday, May 17, 2006, an agent from the Enforcement Bureau's
Honolulu Resident Agent Office attempted to contact KHLU-LP to conduct
a routine inspection of the main studio. The Honolulu agent discovered
that there was neither a studio address nor telephone listing for
KHLU-LP. The agent called the phone number listed in the Oahu
Telephone Directory for "HTV/Hawaiian Television," and was connected
to an answering machine. The agent left a message requesting
information regarding the location of the KHLU-LP main studio. On May
18, 2006, the Honolulu agent received a telephone call from the
President of HTV, who advised the agent that the KHLU-LP main studio
is co-located with the KHLU-LP transmitter at the multi-transmitter
broadcast site managed by Salem Communications on Palehua Ridge, Oahu
("Salem site"). The KHLU-LP transmitter building and main studio are
located at the KAIM-FM transmitter site on Palehua Ridge.
3. On Monday, July 10, 2006, the Honolulu agent visited the Salem site
with the KAIM-FM site manager and KAIM-FM contract engineer. The agent
observed that there were two locked gates on the one-lane mountain
road leading to the transmitter site. The site manager stated that
these two gates are locked to prevent public access. The KHLU-LP
transmitter site was enclosed by a locked six-foot high chain-link
fence, and there were signs posted on the fence to warn the public not
to approach because of the danger of exposure to high electromagnetic
fields. The Honolulu agent found no apparent means by which the public
could access the site. The door to the KHLU-LP transmitter was locked,
and as there was no response to repeated knocks on the door, the site
manager opened the door with a master key. Inside the unoccupied
windowless transmitter building, the agent observed that it contained,
besides four racks of electronic equipment and transmitters, a file
cabinet and a single chair. There were no restroom facilities, running
water, landline telephone equipment, or staff present at the site.
4. On Monday, July 17, 2006, a Honolulu agent called the listed telephone
number for HTV at 10:00 a.m., 11:30 a.m., and 3:00 p.m., to arrange an
inspection of the KHLU-LP main studio. Each call was picked up by an
answering machine, and the agent left a message requesting an FCC
inspection of the KHLU-LP main studio. On Friday, July 21, 2006, a
field agent from the Honolulu Resident Agent Office received a
telephone call from the HTV President, stating that he could arrange
inspection on Tuesday, July 25, 2006, at 3:00 p.m.
5. On Tuesday, July 25, 2006, Honolulu agents met with the KHLU-LP
Director of Marketing, and the KHLU-LP contract engineer at 3:00 p.m.
to inspect the KHLU-LP main studio located at the Salem site. Once
again, the agents observed that there were two locked gates en-route
to the transmitter site. The KHLU-LP transmitter site was enclosed by
a locked chain-link fence, and there were signs posted on the fence to
warn the public not to approach because of the danger of exposure to
high electromagnetic fields. The door to the KHLU-LP transmitter was
locked, and the building was unoccupied upon arrival. The KHLU-LP
Director of Marketing stated that he and the HTV President are present
at the main studio from 9:00 a.m. to 5:00 p.m., Monday through Friday,
with a one hour lunch break from 1:00 to 2:00 p.m. He further stated
that in the event one of them is absent, they stagger their schedules
to insure a continual studio presence. No restroom facilities or
running water were present at the studio. The KHLU-LP Director of
Marketing departed the studio with the Honolulu agents at
approximately 4:00 p.m. that day, leaving the facility once again
unoccupied.
6. On Thursday, July 27, 2006, a Honolulu agent once again accessed the
Salem site, this time with the KAIM-FM contract engineer. Both gates
on the mountain road leading to the transmitter site were locked. The
chain-link fence enclosing the site was locked. The agent knocked on
the door of the KHLU-LP studio, but did not receive any response. The
agent waited outside the KHLU-LP studio from 10:10 a.m. until 11:30
a.m., but did not observe anyone else at the site. The Salem contract
engineer advised that he works at the site at least three times a
month, but very rarely sees anyone from KHLU-LP at the site.
7. Later, on July 27, 2006, a Honolulu agent spoke to the KAIM-FM site
manager, with whom he had visited the Salem site on July 10, 2006. The
site manager stated that he had received a call from the KHLU-LP
Director of Marketing, several days prior. The KHLU-LP Director of
Marketing had requested a set of keys to open the locked gates at the
Salem site, stating that he had lost his set.
8. On September 28, 2006, the Honolulu Office issued a NAL in the amount
of $7,000 to HTV, finding that HTV apparently willfully and repeatedly
failed to maintain a local main studio in its community of license.
HTV filed a response ("Response") on November 28, 2006, arguing that
that the proposed forfeiture amount is not consistent with the
magnitude of the violation, given that HTV maintained a main studio
for KHLU-LP; that HTV will have financial difficulty paying the
forfeiture amount; and that the forfeiture amount should be reduced
based on HTV's history of compliance and its good faith effort to
maintain a main studio for KHLU-LP.
III. DISCUSSION
9. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"). In examining HTV's response, Section 503(b) of the
Act requires that the Commission take into account 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 other such matters as justice may
require.
10. Section 73.1125(a) of the Rules requires the licensee of a broadcast
station to maintain a main studio in its community of license. The
station's main studio must serve the needs and interests of the
residents of the station's community of license. In particular, the
main studio must be accessible to the public during normal business
hours "[t]o assure meaningful public participation in [the
Commission's] licensing process." To fulfill these functions, a
station must, among other things, maintain a meaningful managerial and
staff presence at its main studio. The Commission has defined a
minimally acceptable "meaningful presence" as full-time managerial and
full-time staff personnel. In addition, there must be "management and
staff presence" on a full-time basis during normal business hours to
be considered "meaningful." Although management personnel need not be
"chained to their desks" during normal business hours, they must
"report to work at the main studio on a daily basis, spend a
substantial amount of time there and ... use the studio as a home
base." The site held out by HTV as the main studio location for
KHLU-LP had no public access, and contrary to HTV assertions, no staff
presence.
11. HTV first argues that the amount of the forfeiture, seven thousand
dollars, is usually assessed when there is no main studio, not where
there is a main studio, which may not be accessible or consistently
staffed. We disagree. We have consistently assessed forfeitures of
$7,000 to licensees who fail to maintain a meaningful staff presence
in, or access to, their main studios. HTV also states that while it is
true that the main studio lacks running water and windows, as well as
a landline phone, it was not aware that these items were required. HTV
misconstrues the point of the Honolulu Office's detailed description
of the KHLU-LP main studio. These items provide evidentiary support of
the Honolulu Office's conclusion that the purported main studio was
not maintained for public access. HTV acknowledges, however, that
since the release of the NAL, it has consulted with its legal counsel
and realizes that improvements are needed in terms of access to the
KHLU-LP main studio and the hours of staff presence at the main
studio. We find that while the description of the main studio may
detail items not specifically required by the Rules, the Honolulu
Office's ultimate finding that the KHLU-LP main studio lack public
access and staff presence was, as HTV acknowledges, accurate.
12. HTV also states that it will have financial difficulty paying the
proposed forfeiture amount. HTV, however, has submitted no financial
data to support this claim. In analyzing a financial hardship claim,
the Commission generally has looked to gross revenues as a reasonable
and appropriate yardstick in determining whether a licensee is able to
pay the assessed forfeiture. Because HTV has submitted no data to
support its claim, we are unable to consider it.
13. HTV also asks that we reduce the proposed forfeiture amount based on
its good faith efforts to comply with main studio requirement.
Reductions based on good faith efforts to comply generally involve
situations where violators demonstrated that they initiated measures
to correct or remedy violations, or that they had established
compliance programs in place, prior to the Commission's involvement.
As we indicated above, the NAL was not issued because HTV did not have
a building it held out as the main studio for KHLU-LP. The NAL was
issued because KHLU-LP main studio lacked public access and staff
presence. As HTV acknowledges, it was only after the issuance of the
NAL that it worked to remedy these failures. Therefore, we find no
basis for a reduction based on HTV's good faith efforts to comply.
14. HTV also states that it has a history of compliance with the
Commission's Rules. We have reviewed our records and we concur.
Consequently, we reduce HTV's forfeiture amount from $7,000 to $5,600.
15. Based on the information before us, having examined it according to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement, we find that reduction of the proposed forfeiture to
$5,600 is warranted.
IV. ORDERING CLAUSES
16. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, HTV/HTN/Hawaiian TV
Network, Ltd., IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$5,600 for willfully and repeatedly violating Section 73.1125(a) of
the Rules.
17. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. Payment of the 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 above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-
6106. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to
HTV/HTN/Hawaiian TV Network, Ltd., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S 73.1125(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632860003
(Enf. Bur., Western Region, Honolulu Resident Agent Office, released
September 28, 2006).
Salem Communications of Hawaii, Inc., is the licensee of KAIM-FM.
As he passed through the gate of the fence to the main studio, the
Honolulu agent noted that his personal radiofrequency radiation ("RFR")
monitor LED lit at various places within this area, indicating the RFR in
the area likely exceeded the public RFR maximum permitted exposure limit.
See Section 1.1310 of the Rules, 47 C.F.R. S 1.1310.
The agent did find a hand-written sign posted next to the door stating "Be
back in one hour." The sign was not dated and gave a cellphone number to
contact.
HTV requested and received a 30 day extension to respond to the NAL.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(E).
Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3218 (1987),
clarified 3 FCC Rcd 5024, 5026 (1988).
2 FCC Rcd at 3217-18.
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified 7 FCC Rcd 6800 (1992).
Id.
7 FCC Rcd at 6802.
HTV cites to Letter to LocalOne Texas, Ltd., ref 1800E3-JLB, Video
Division , Media Bureau, released June 23, 2004; Arecelis Ortiz,
Executrix, 19 FCC Rcd 2632 (EB 2004), recon denied 20 FCC Rcd 534 (EB
2005); and Blue Skies Broadcasting Corporation, 18 FCC Rcd 15184 (EB
2003); all cases concerning the lack of a main studio.
See, e.g., Farmworker Educational Radio Network, 20 FCC Rcd 14294 (EB
2005); Alpine Broadcasting Limited Partnership, 21 FCC Rcd 3077 (EB 2006).
HTV also asserts that no deficiencies were found in its public file. While
that may be accurate, it does not diminish HTV's failure to maintain
access to, and staff presence in, the KHLU-LP main studio.
In its Response, HTV stated that it would supplement its filing with
financial data. No supplemental filing was ever received.
See PLB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
See Radio One Licenses, Inc.,17 FCC Rcd 20408 (EB 2002), recon. denied, 18
FCC Rcd 15964 (2003).
See Tidewater Communications, Inc., 18 FCC Rcd 5524, 5525 (EB 2003).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 73.1125(a).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-2138
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Federal Communications Commission DA 07-2138