**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of Liability of    | * | File. No. BRET-980129KG      |
|                                  | * |                              |
| Kansas Public Telecommunications | ) |                              |
| Services, Inc., licensee of      | * |                              |
| Station KPTS(TV),                | * |                              |
|                                  |   |                              |
| Hutchinson, Kansas,              | * |                              |
|                                  | * |                              |
| For a Forfeiture                 | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER & FORFEITURE ORDER**

**Adopted:** March 22, 2001 **Released:** March 23, 2001

Before the Chief, Mass Media Bureau:

1\. The Commission, by the Chief, Mass Media Bureau, pursuant to
delegated authority, has before it for consideration: (i) the
*Memorandum Opinion and Order and Notice of Apparent Liability in Kansas
Public Telecommunications Service, Inc*., 14 FCC Rcd 12112 (MMB 1999)
("*MO&O*"), which granted the license renewal application of Kansas
Public Telecommunications Service, Inc. ("KPTS" or "licensee") for
Station KPTS(TV), Hutchinson, Kansas, subject to a Notice of Apparent
Liability ("NAL") for a \$5,000 forfeiture; and (ii) the licensee's
response to the NAL, which seeks rescission or reduction of the
forfeiture.

2.  In the *MO&O*, we found that the licensee had violated Section
    73.1015 of the Commission's Rules by willfully omitting material
    facts in the FCC Form 396 (Broadcast EEO Program Report) filed with
    its license renewal application on January 29, 1998. In Section VII
    of the Form 396, which states "\[y\]ou must provide here a brief
    description of any complaint which has been filed before any body
    having competent jurisdiction under Federal, State, territorial or
    local law, alleging unlawful discrimination in the employment
    practices of the station including the persons involved, the date of
    filing, the court or agency, the file number (if any), and the
    disposition or current status of the matter," the licensee stated
    "No Complaints." However, in an informal objection filed against the
    licensee's renewal application on April 30, 1998, two former
    employees of KPTS(TV) informed Commission staff that they had filed
    discrimination complaints against the licensee with the Kansas Human
    Rights Commission on December 29, 1997.

3.  In its July 10, 1998, opposition to the informal objection, the
    licensee explained that it had prepared its license renewal
    materials in early January 1998 and filed the renewal application on
    January 29, 1998. The licensee contended that it became aware of the
    complaints in the interim (between preparation of the renewal
    materials and filing of the renewal application) so that it
    inadvertently failed to report the complaints because the materials
    involved had "simply crossed in the mail." On August 18, 1998, the
    licensee finally filed an amendment to its renewal application. In
    this amendment, the licensee reported the discrimination complaints
    in Section VII of Form 396. In a further pleading filed on December
    30, 1998, the licensee stated that it had knowledge of the
    complaints by January 6, 1998. The licensee also stated that it did
    not report the complaints on the station's renewal application
    because preparation of the renewal materials pre-dated the station's
    receipt of the complaints and the station inadvertently failed to
    amend its renewal materials because of "the confusion and press of
    business surrounding the complaints."

4.  We found no evidence in the MO&O that the licensee's failure to
    report the discrimination complaints resulted from an intent to
    deceive. However, we concluded that the licensee had omitted
    material facts from its Form 396. We further concluded that this
    action was willful inasmuch as the licensee's president and general
    manager, Donald Checots, certified that the information contained in
    the form, including the statement that no complaints had been filed,
    was true and correct to the best of his knowledge when he was
    clearly aware of the complaints. Accordingly, the Commission issued
    the licensee an NAL for a \$5,000 forfeiture for willfully omitting
    material facts from its Form 396 in violation of Section 73.1015 of
    the Commission's Rules.

5.  In the licensee's response to the NAL, the licensee submits that it
    would be inappropriate for the Commission to impose a monetary
    forfeiture since KPTS has a history of overall compliance with
    Commission rules and policies. The licensee also submits that the
    proposed forfeiture would impose an economic hardship on KTBS, a
    noncommercial station, and "divert from KPTS much-needed funds for
    its current operations and digital future."

6.  Finally, the licensee argues that the "nature and circumstances" of
    this case also warrant rescission or reduction of the forfeiture.
    The licensee cites Commission cases which imposed forfeitures for
    failure to report discrimination complaints where the licensees had
    been aware of the existence of the complaint at least four months
    before certifying the lack of such complaints in FCC Form 396.
    Unlike those cases, the licensee argues, the present circumstances
    are "different" since "the preparation of the license renewal and
    its receipt of service of the discrimination complaint occurred
    within the same time period." The licensee also asserts that the
    January 12, 1998 date on which it executed the application; i.e.,
    signed the application's certification, is the relevant date to use
    when applying Section 73.1015, and not the January 29, 1998 date on
    which its legal counsel filed the station's renewal application, as
    "incorrectly suggested" by the *MO*&*O*. Further, the licensee
    disputes the *MO&O*'s finding that a failure to report a pending
    discrimination complaint is "material" since the FCC's policy is to
    defer action on such complaints until resolved by the appropriate
    agency or court, so that the licensee's failure to report the
    complaints is a violation without any consequence other than the NAL
    at issue.

7.  We conclude that the licensee has provided no basis for rescission
    or reduction of the forfeiture. Contrary to the licensee's
    assertion, we do not believe that a licensee's overall history of
    compliance with the Commission's Rules necessitates or justifies a
    reduction of the specified forfeiture amount. While Section
    503(b)(2) of the Communications Act, as amended, 47 U.S.C. §
    503(b)(2), requires us to consider a licensee's recidivist history
    of prior offenses in determining a forfeiture amount, it does not
    mandate that we mitigate a forfeiture amount should a licensee have
    no history of prior offenses. *CRC Broadcasting, Inc.,* 15 FCC Rcd
    6697, 6698 (MMB 1999).

8.  After reviewing the licensee's financial statements for the years
    ended June 30, 1998 and 1999, we deny the request of the licensee
    that we reduce or rescind the forfeiture due to its financial
    condition. Although the licensee reported an earnings loss for
    fiscal year 1999, it also reported significant revenue for the same
    year. Nonetheless, we will consider a request for an installment
    plan. If the licensee wishes to arrange a payment plan, it can
    address its request to: Regina Dorsey, Chief, Credit & Debt
    Management Center, Financial Operations Division, Office of Managing
    Director, Federal Communications Commission, 445 12th Street, SW,
    Washington, D.C. 20554.

9.  The licensee argues that the circumstances in this case are
    significantly different from those where the Commission imposed
    forfeitures for similar violations because the other licensees were
    aware of the complaints for longer periods of time. We disagree. The
    licensee does not deny that it was aware of the existence of the
    complaints at the time the renewal application was executed and
    filed. Thus, the *length* of the time period that the licensee had
    prior knowledge of the complaint is irrelevant in this case. The
    licensee had a responsibility to report accurately all information
    requested in the application before it signed the certification. Its
    failure to do so and its subsequent claim that the failure is
    immaterial reflect a continuing lack of concern for the accuracy of
    information provided to the Commission. The licensee's failure to
    acknowledge the existence of the discrimination complaints until
    five months after the station's renewal application was filed, and
    only after an informal objection had been filed alerting the
    Commission to the existence of the complaints, further supports this
    conclusion. Accordingly, the Commission's policy of deferring action
    on discrimination complaints until resolved by the appropriate
    agency or court does not mitigate the licensee's willful failure to
    report information to the Commission on its Form 396.

10. ACCORDINGLY, IT IS ORDERED that the response to the Notice of
    Apparent Liability filed by Kansas Public Telecommunications
    Services, Inc. IS DENIED.

11. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the
    Communictions Act of 1934, as amended, 47 U.S.C. § 503(b), that
    Kansas Public Telecommunications Services, Inc. FORFEIT to the
    United States the sum of five thousand dollars (\$5,000) for
    willfully omitting material facts in violation of Section 73.1015 of
    the Commission's Rules, 47 C.F.R. § 73.1015. Full payment of the
    forfeiture may be made by mailing to the Commission a check or
    similar instrument payable to the Federal Communications Commission
    within 30 days of the release of this Order. In regard to this
    forfeiture proceeding, the licensee may take appropriate action as
    set forth in Section 1.80 of the Commission's Rules, 47 C.F.R. §
    1.80, and Section 504(a) of the Communications Act of 1934, as
    amended, 47 U.S.C. § 504(a), as summarized in the attachment to this
    Memorandum Opinion and Order and Forfeiture Order.

12. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and
    Order and Forfeiture Order be sent by Certified Mail -- Return
    Receipt Requested -- to Kansas Public Telecommunications Services,
    Inc.

13. This action is taken pursuant to delegated authority.

    FEDERAL COMMUNICATIONS COMMISSION

    Roy J. Stewart

    Chief, Mass Media Bureau