**DA 05-2537**

**Released: September 28, 2005**

Media Venture Management, Inc.

WTXL-TV

8440 Deerlake Road

Tallahassee, Florida 32312

Re: Media Venture Management, Inc. WTXL-TV, Tallahassee, Florida

Facility I.D. No. 41065

File No. BRCT-20040930BHO

NAL/Acct. No. 0541420017

FRN: 0002053486

Dear Licensee:

This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in
the amount of ten thousand dollars (\$10,000) pursuant to Section 503(b)
of the Communications Act of 1934, as amended (Act), 47 U.S.C. § 503(b),
under authority delegated to the Chief of the Media Bureau by Section
0.283 of the Commission's Rules (Rules), 47 C.F.R. § 0.283, for willful
and repeated violations of the Commission's rule requiring each
commercial broadcast station to place in its public inspection file
Children's Television Programming Reports and records concerning
compliance with commercial limits.

In the Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat.
996-1000, *codified at* 47 U.S.C. Sections 303a, 303b and 394, Congress
directed the Commission to adopt rules, *inter alia,* limiting the
amount of commercial matter that television stations may air during
children's programming, and to consider in its review of television
license renewals the extent to which the licensee has complied with such
commercial limits. Accordingly, the Commission adopted Section 73.670 of
the Rules, 47 C.F.R. § 73.670, which limits the amount of commercial
matter which may be aired during children's programming to 10.5 minutes
per hour on weekends and 12 minutes per hour on weekdays. *Children's
Television Programming*, 6 FCC Rcd 2111, 2118, *recon. granted in part*,
6 FCC Rcd 5093, 5098 (1991). The commercial limitations became effective
on January 1, 1992. *Children's Television Programming*, 6 FCC Rcd 5529,
5530 (1991).

Moreover, Section 73.3526 of the Rules requires broadcast licensees to
maintain a public inspection file containing specific types of
information related to station operations.[^1] As set forth in Section
73.3526(e)(11)(iii) of the Rules, each commercial television broadcast
station 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 it has made
during the quarter to serve the educational needs of children. Section
73.3526 of the Rules also requires commercial television stations to
file the reports with the Commission and to publicize the existence and
location of the reports. Moreover, pursuant to Section
73.3526(e)(11)(ii) of the Rules, each commercial television broadcast
station is required to place in its public inspection file on a
quarterly basis, records sufficient to allow substantiation of the
licensee's certification in its renewal application, of compliance with
the children's television commercial limits. Section 73.3526 also
requires licensees to place these records and Forms 398 in the public
inspection file by the tenth day of the succeeding calendar quarter.
Where lapses occur in maintaining the public file, neither the negligent
acts nor omissions of station employees or agents, nor the subsequent
remedial actions undertaken by the licensee, excuse or nullify a
licensee's rule violation.[^2]

On September 30, 2004, you filed a license renewal application (FCC Form
303-S) for station WTXL-TV, Tallahassee, Florida (File No.
BRCT-20040930BHO). In response to Section IV, Question 3 of that
application, you certify that, during the previous license term, station
WTXL-TV, failed to place in its public inspection file at the
appropriate times, all of the documentation required by Section 73.3526
of the Commission's Rules. Moreover, in response to Section IV, Question
6, you certify that, during the previous license term, station WTXL-TV
failed to file with the Commission several Children's Television
Programming Reports. In Exhibit 17 of that application, you indicate
that in completing the instant renewal application, the licensee
determined that Children's Television Programming Reports for all of
1997 and the first three quarters of 1998 were missing from the
station's public inspection file. Further, you state that for the same
period, information documenting compliance with the commercial limits on
children's programming was also not present in the public file. You
report that upon further investigation you discovered that the station's
Children's Television Programming Reports for the fourth quarter of 1997
and the first three quarters of 1998 were on the Commission's website
and that those were subsequently downloaded, copied and placed in the
public file. You state that the licensee has not been able to locate the
station's Children's Television Programming Reports for the first three
quarters of 1997.

In Exhibit 17, you also state that with respect to the commercial limits
for all of 1997 and the first three quarters of 1998, although the
licensee is unable to confirm compliance, its best information is that
all children's programming aired during this period was originated by
ABC. Consequently, you assert, assuming that the network complied with
the limits, it is likely that station WTXL-TV did as well.

In an amendment to the renewal application filed on December 23, 2004,
you report that although station personnel could not locate the
Children's Television Programming Reports for the first three quarters
of 1997, they have been reconstructed, filed and placed in the public
inspection file. For this reason, you state, the licensee amends its
response to Section IV, Question 6 to "yes", it has filed all of its
Children's Television Programming Reports. You also indicate, however,
that the response to Section IV, Question 3 remains "no", since the
Children's Television Programming Reports were not placed in the public
file "at the appropriate time."

Further, you report that the network compensation affidavits indicate
that the network provided 9.5 minutes an hour of advertising during
children's programming. Further you state that according to the
station's former General Sales Manager, station WTXL-TV did not sell
station identification/advertisement combinations that year and the
network did not make much local commercial time available to the station
during children's programming. Therefore, you maintain, the licensee
strongly believes that station WTXL-TV complied with the limits on
commercial matter during the first three quarters of 1997.

Station WTXL-TV's failure to place in its public inspection file the
required documentation constitutes a willful and repeated violation of
Sections 73.3526(e)(11)(ii) and 73.3526(e)(11)(iii). While corrective
actions may have been taken to prevent future violations, this does not
relieve you of the violations which have occurred. *International
Broadcasting Corp.*, 19 FCC 2d 793 (1969).

Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully fails to comply with any of the provisions
of the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty.[^3] In determining
the appropriate forfeiture amount, we must consider 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."[^4]

*The Commission's Forfeiture Policy Statement and Amendment of Section
1.80(b) of the Rules to Incorporate the Forfeiture Guidelines
(Forfeiture Policy Statement)* and Section 1.80 of the Rules establish a
base forfeiture amount of \$10,000 for public file violations.[^5] In
this case, the licensee concedes that the station's Children's
Television Programming Reports and records concerning compliance with
commercial limits on children's programming for 1997 and the first three
quarters of 1998 were missing from the public inspection file. Moreover,
it appears that the licensee did not discover these deficiencies until
it prepared station WTXL-TV's renewal application. As a result, the
public file was not complete for a substantial period of time.
Considering the record as a whole, we believe that a \$10,000 forfeiture
is appropriate for the violations in this case.

In evaluating an application for license renewal, the Commission's
decision is governed by Section 309(k) of the Communications Act of
1934, as amended (Act), 47 U.S.C. § 309(k). Section 309(k) provides that
if, upon consideration of the application and pleadings, we find that
(1) the station has served the public interest, convenience, and
necessity; (2) there have been no serious violations of the
Communications Act or the Commission's Rules; and (3) there have been no
other violations which, taken together, constitute a pattern of abuse,
we are to grant the renewal application.[^6] If, however, the licensee
fails to meet that standard, the Commission may deny the application --
after notice and opportunity for a hearing under Section 309(e) of the
Act -- or grant the application "on terms and conditions that are
appropriate, including a renewal for a term less than the maximum
otherwise permitted."[^7]

The public inspection file rule serves the critical function of making
available to the public important information related to station
operations. On balance, however, we find that station WTXL-TV's
violation of Section 73.3526 does not constitute a "serious violation"
of the Commission's rules warranting designation for evidentiary
hearing. Moreover, we find no evidence of violations that, when
considered together, evidence a pattern of abuse. Further, we find that
station WTXL-TV served the public interest, convenience, and necessity
during the subject license term. We will therefore grant the license
renewal application below.

Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.61, 0.283 and
1.80 of the Commission's Rules,[^8] Media Venture Management, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE of ten thousand
dollars (\$10,000) for willful and repeated violations of Sections
73.3526 (e)(11)(ii) and 73.3526(e)(11)(iii) of the Commission's Rules as
indicated above.[^9]

IT IS FURTHER ORDERED, That pursuant to Section 1.80 of the Commission's
Rules, within thirty days of the release date of this Notice, Media
Venture Management, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture. 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, and 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 the installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.[^10]

IT IS FURTHER ORDERED that, a copy of this Notice shall be sent by First
Class and Certified Mail, Return Receipt Requested to Media Venture
Management, Inc. at the address listed above, and to its counsel, Dorann
Bunkin, Esquire, Wiley Rein & Fielding LLP, 1776 K Street, N.W.,
Washington, D.C. 20006.

Finally, IT IS ORDERED that, the application (File No. BRCT-20040930BHO)
of Media Venture Management, Inc. for renewal of license for station
WTXL-TV, Tallahassee, Florida, IS GRANTED.

Sincerely,

Donna C. Gregg

Acting Chief, Media Bureau

[^1]: *See* 47 C.F.R. § 73.3526.

[^2]: *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).

[^3]: 47 U.S.C. § 503(b).

    Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that "\[t\]he term "willful", when used
    with reference to the commission or omission of any act, means the
    conscious and deliberate commission or omission of such act,
    irrespective of any intent to violate any provision of this Act or
    any rule or regulation of the Commission authorized by the Act . . .
    ." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

    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."
    47 U.S.C. § 312(f)(2).

[^4]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement*,
    12 FCC Rcd 17087, 17100 (1997), *recon. denied*, 15 FCC Rcd 303
    (1999); 47 C.F.R. § 1.80(b)(4).

[^5]: 47 C.F.R. § 1.80(b)(4), Note to paragraph (b)(4): Section I. Base
    Amounts for Section 503 Forfeitures; *Forfeiture Policy Statement*,
    12 FCC Rcd at 17113, Appendix A, Section I.

[^6]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read as
    described by Section 204(a) of the Telecommunications Act of 1996,
    Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Order, Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, 11 FCC Rcd 6363 (1996).

[^7]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^8]: 47 C.F.R. §§ 0.61, 0.283, and 1.80.

[^9]: 47 C.F.R. § 73.3526.

[^10]: *See* 47 C.F.R. § 1.1914.