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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Blue Skies Broadcasting Corporation Licensee of Broadcast
Station KSKT-CA San Marcos, California ) ) ) ) ) ) ) File No.:
EB-10-SD-0102 NAL/Acct. No.: 201132940005 FRN: 0003777406 Facility ID No.:
58927
FORFEITURE ORDER
Adopted: November 20, 2013 Released: November 21, 2013
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of five hundred dollars ($500) to Blue Skies Broadcasting Corporation
(Blue Skies), licensee of Station KSKT-CA, in San Marcos, California,
for willfully and repeatedly violating Section 73.3526(e)(11)(i) of
the Commission's rules (Rules), which requires broadcast stations to
maintain complete issues/programs lists in their public inspection
files.^ The noted violations involve Blue Skies' failure to maintain
multiple issues/programs lists in the Station KSKT-CA public
inspection file. In addition, no later than thirty (30) calendar days
from the date of this Forfeiture Order, Blue Skies must submit a
statement signed under penalty of perjury that the Station KSKT-CA
public inspection file is in compliance with Section 73.3526 of the
Rules.
II. BACKGROUND
2. On June 22, 2010, agents from the Enforcement Bureau's San Diego
Office (San Diego Office) conducted an inspection with personnel of
Station KSKT-CA at the station's main studio in Escondido, California.
The agents reviewed the materials in Station KSKT-CA's public
inspection file and found that the file was missing 34 quarterly TV
issues/programs lists - all quarterly TV issues/programs lists since
the Commission granted Station KSKT-CA's license on August 9, 2001.^
On March 3, 2011, the San Diego Office issued a letter of inquiry
(LOI) to Blue Skies requesting information on the status of Station
KSKT-CA's public inspection file and for a list of documents currently
in the file.^ On March 21, 2011, the San Diego Office received a reply
to the LOI from Blue Skies' President.^ In its LOI Response, Blue
Skies listed the documents currently in the Station KSKT-CA public
inspection file.^ That list did not include any quarterly
issues/programs lists.
3. On May 26, 2011, the San Diego Office issued a Notice of Apparent
Liability for Forfeiture (NAL) in the amount of $14,000 to Blue Skies
for failing to maintain a complete public inspection file.^ Blue Skies
responded to the NAL on June 10, 2011.^ In its NAL Response, Blue
Skies argues that the proposed forfeiture amount is out of proportion
to the seriousness of the violation^ and excessive compared to
forfeitures proposed in similar cases.^ Blue Skies also claims that it
lacks the ability to pay the proposed forfeiture and provides tax
returns to support its claim.^
III. DISCUSSION
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act),^ Section 1.80 of the Rules,^ and the Commission's Forfeiture
Policy Statement.^ In examining Blue Skies' NAL 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.^ We consider Blue Skies' NAL Response in light of these
statutory factors and find that reduction of the forfeiture is
warranted for the reasons discussed below.
5. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection a file containing materials listed in
that section.^ ^ Section 73.3526(c)(1) of the Rules specifies that the
file shall be available for public inspection at any time during
regular business hours.^ Section 73.3526(e)(11)(i) of the Rules
requires Class A and commercial TV licensees to place in their public
inspection file for each calendar quarter a list of programs that have
provided the station's most significant treatment of community issues
during the preceding three month period.^ This list is known as the
"TV issues/programs list."^ Copies of the issues/programs list must be
retained in the public inspection file until final action has been
taken on the station's next license renewal application.^ On June 22,
2010, San Diego agents reviewed Station KSKT-CA's public inspection
file and found that it was missing 34 quarterly TV issues/programs
lists. As evidenced by its LOI Response, Blue Skies took no action
subsequent to the inspection to ensure that the required quarterly TV
issues/programs lists were available in the Station KSKT-CA public
inspection file.
6. Blue Skies does not dispute that the quarterly issues/programs lists
were missing from the Station KSKT-CA public inspection file as
described above. Rather, Blue Skies argues that the proposed
forfeiture amount is out of proportion to the seriousness of the
violation and excessive compared to forfeitures proposed in similar
cases.^ We find no merit to Blues Skies' arguments. The Commission has
determined that forfeitures are appropriate in cases where
issues/programs lists are missing from the public inspection file and
underscored the seriousness of such violations, stating "[t]hese lists
enable citizens to determine whether local broadcast facilities are
assessing and addressing the uniquely local concerns and issues
affecting the station's community of license."^ Contrary to Blues
Skies' assertion,^ a proposed forfeiture of $14,000 for failing to
make all or most of the issues/programs lists for a license term
available for public inspection is consistent with current procedure
and precedent.^
7. Blue Skies also claims an inability to pay the proposed forfeiture and
produces three years of tax forms to support its claim. With regard to
an individual or entity's inability to pay claim, the Commission has
determined that generally gross revenues are the best indicator of an
ability to pay a forfeiture.^ Based on the financial documents
provided by Blue Skies, we find sufficient basis to reduce the
forfeiture to $500.^ However, we caution Blue Skies that a party's
inability to pay is only one factor in our forfeiture calculation
analysis, and is not dispositive.^ We have previously rejected
inability to pay claims in cases of repeated or otherwise egregious
violations.^ Therefore, future violations of this kind may result in
significantly higher forfeitures that may not be reduced due to Blue
Skies' financial circumstances.
8. We have examined Blue Skies' NAL Response pursuant to the statutory
factors above and in conjunction with the Forfeiture Policy Statement.
As a result of our review, we conclude that Blue Skies willfully and
repeatedly violated Section 73.3526(e)(11)(i) of the Rules.
Considering the entire record and the factors listed above, we find
that a forfeiture in the amount of $500 is warranted. We also note
that Blue Skies did not indicate in its NAL Response whether the
public inspection file for Station KSKT-CA has come into compliance
with the requirements of Section 73.3526(e)(11)(i) of the Rules. We
therefore order Blue Skies to submit a written statement pursuant to
Section 1.16 of the Rules^ signed under penalty of perjury by an
officer or director of Blue Skies within thirty (30) calendar days of
the release date of this Forfeiture Order that Station KSKT-CA is now
in compliance with Section 73.3526(e)(11)(i) of the Rules. Continued
failure to comply with this order may result in additional enforcement
action, including monetary penalties.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's Rules, Blue Skies
Broadcasting Corporation IS LIABLE FOR A MONETARY FORFEITURE in the
amount of five hundred dollars ($500) for willfully and repeatedly
violating Section 73.3526(e)(11)(i) of the Commission's Rules.^
10. IT IS FURTHER ORDERED that Blue Skies Broadcasting Corporation SHALL
SUBMIT a written statement, as described in paragraph 8, within thirty
(30) calendar days of the release date of this Forfeiture Order. The
statement must be mailed to Federal Communications Commission,
Enforcement Bureau, Western Region, San Diego Office, 4542 Ruffner
Street - Suite 370, San Diego, CA 92111. Blue Skies Broadcasting
Corporation shall also e-mail the written statement to
WR-Response@fcc.gov.
11. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the 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 Act.^ Blue Skies Broadcasting Corporation shall
send electronic notification of payment to WR-Response@fcc.gov on the
date said payment is made.
12. 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
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* 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.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
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.
13. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554.^ If you have questions
regarding payment procedures, please contact the Financial Operations
Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt Requested
to Blue Skies Broadcasting Corporation, 5220 Campo Road, Woodland Hills,
California, 91364, and to Peter Tannenwald, Esquire, its counsel of
record, at Fletcher, Heald & Hildreth, 1300 North 17^th Street, 11^th
Floor, Arlington, Virginia 22209.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
^ 47 C.F.R. S 73.3526(e)(11)(i).
^ See File No. BLTTA-20010712AAA, granted August 9, 2001. Blue Skies filed
an application to renew the Station KSKT-CA license on August 9, 2006. See
File No. BRTTA-20060809AAQ. That application is still pending.
^ See Letter of Inquiry from James T. Lyon, Acting District Director, San
Diego Office, Western Region, FCC Enforcement Bureau, to Blue Skies
Broadcasting Corporation (Mar. 3, 2011) (on file in EB-10-SD-0102) (LOI).
^ See Letter from Robert Ruiz, President, Blue Skies Broadcasting
Corporation, to James T. Lyon, Acting District Director, San Diego Office,
Western Region, FCC Enforcement Bureau (Mar. 21, 2011) (on file in
EB-10-SD-0102) (LOI Response).
^ Id.
^ Blue Skies Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture and Order, 26 FCC Rcd 7698 (Enf. Bur. 2011) (NAL).
^ See Response of Blue Skies Broadcasting Corporation (June 10, 2011) (on
file in EB-10-SD-0102) (NAL Response).
^ Id. at 2-4.
^ Id. at 4-6.
^ Id. at 1-2.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 C.F.R. S 73.3526(a)(2).
^ 47 C.F.R. S 73.3526(c)(1).
^ 47 C.F.R. S 73.3526(e)(11)(i).
^ Id.
^ Id.
^ NAL Response at 2-6. Blue Skies also states "[m]ore than five years ago
[its attorney] filed a Petition for Rulemaking (RM-11322) proposing that
the Public File Rules be abolished on the grounds they serve no useful
purpose." Id. at 4. A review of Commission records shows that RM-11322 is
entitled "Joint Petition for Rulemaking to Further Reform the
International Settlements Policy, RM-11322 (filed by AT&T Inc., Sprint
Nextel Corporation, and Verizon on Mar. 13, 2006). See Consumer &
Governmental Affairs Bureau Reference Information Center Petition for
Rulemakings Filed, Public Notice, Report No. 2764 (rel. Mar. 20, 2006). In
any event, as the Commission has declined to abolish the public file
rules, the Enforcement Bureau will continue to vigorously enforce them.
^ Lazer Licenses, LLC, Order on Review, 27 FCC Rcd 626, 629 (2012)
(affirming an Enforcement Bureau order assessing forfeitures on three
broadcast stations for failing to make available multiple issues/programs
lists).
^ Blue Skies cites to 15 Notices of Apparent Liability for Forfeiture
(Notices) issued by the Media Bureau on October 8, 2003, each for $3000,
concerning issues/programs list violations. We note that in each of these
Notices, the issues/programs list violation was self-reported by the
licensee, and that, unlike Blue Skies, the licensee had remedied the
violation prior to the report to the Commission. See, e.g., Mel Wheeler,
Inc., c/o Vincent A. Pepper, Esq., Notice of Apparent Liability for
Forfeiture, 18 FCC Rcd 20215 (Med. Bur. 2003) (proposed forfeiture of
$3,000 for self-reporting that three issues/programs lists were not timely
placed in public inspection file); Kenneth E. Satten, Esq., Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 20175 (Med. Bur. 2003)
(proposed forfeiture of $3,000 for self-reporting that one issues/programs
list was not timely placed in public inspection file); David Tillotson,
Esq., Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 20151 (Med.
Bur. 2003) (proposed forfeiture of $3,000 for self-reporting that
issues/programs lists were not timely placed in public inspection file).
^ See, e.g., Vision Latina Broadcasting, Inc., Notice of Apparent
Liability for Forfeiture, 27 FCC Rcd 6258 (Enf. Bur. 2012) (proposing a
$15,000 forfeiture for failing to make any issues/programs lists available
for inspection); L. Stanley Wall, Notice of Apparent Liability for
Forfeiture and Order, 26 FC Rcd 8506 (Enf. Bur. 2011) (proposing a $15,000
forfeiture for failing to make all but one issues/programs list available
for inspection). Blue Skies argues that the forfeiture amount proposed is
inconsistent with the Enforcement Bureau's decision in Daniel D. Smith,
Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 15874 (Enf. Bur.
2010) (Smith). NAL Response at 3. We disagree. In Smith, the station's
public inspection file was missing five issues/programs lists and the
Enforcement Bureau proposed a forfeiture of $4,000. In the instant case,
Station KSKT-CA was missing 34 issues/programs lists, resulting in a
proposed forfeiture of $14,000.
^ See PJB Communications of Virginia, Inc., Memorandum Opinion and Order,
7 FCC Rcd 2088 (1992) (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross revenues);
Hoosier Broadcasting Corp., Memorandum Opinion and Order, 15 FCC Rcd 8640
(2000) (forfeiture not deemed excessive where it represented approximately
7.6 percent of the violator's gross revenues); Local Long Distance, Inc.,
Order of Forfeiture, 15 FCC Rcd 24385 (2000) (forfeiture not deemed
excessive where it represented approximately 7.9 percent of the violator's
gross revenues).
^ This forfeiture amount falls within the percentage range that the
Commission has previously found acceptable. See supra note 24.
^ See 47 U.S.C. S 503(b)(2)(E) (requiring Commission to 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 such other matters as justice may require).
^ Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011)
(holding that violator's repeated acts of malicious and intentional
interference outweighed evidence concerning his ability to pay) (petition
for reconsideration pending); Hodson Broadcasting Corp., Forfeiture Order,
24 FCC Rcd 13699 (Enf. Bur. 2009) (holding that permittee's continued
operation at variance with its construction permit constituted an
intentional and continuous violation, which outweighed permittee's
evidence concerning its ability to pay the proposed forfeitures).
^ 47 C.F.R. S 1.16.
^ 47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
73.3526(e)(11)(i).
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 13-2214
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Federal Communications Commission DA 13-2214