**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | Facility I.D. No. 3659       |
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| Nexstar Broadcasting, Inc.       | ** | NAL/Acct. No. 0741420042     |
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| Licensee of Station KSFX-TV      | *  | FRN: 0009961889              |
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| Springfield, Missouri            | ** |                              |
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**NOTICE OF APPARENT**

**LIABILITY FOR FORFEITURE**

**Adopted: June 4, 2007 Released: June 11, 2007**

By the Chief, Video Division, Media Bureau:

**I. INTRODUCTION**

1.  In this *Notice of Apparent Liability for Forfeiture ("NAL")* issued
    pursuant to Section 503(b) of the Communications Act of 1934, as
    amended (the "Act"), and Section 1.80 of the Commission's Rules (the
    "Rules"),[^1] by the Chief, Video Division, Media Bureau pursuant to
    authority delegated under Section 0.283 of the Rules,[^2] we find
    that Nexstar Broadcasting, Inc. (the "Licensee"), licensee of
    Station KSFX-TV, Springfield, Missouri (the "Station"), apparently
    willfully and repeatedly violated Sections 73.3526(e)(11)(i) and
    (ii), and 73.670 of the Rules, by failing to place in the Station's
    public inspection file all required TV issues/programs lists and
    records concerning compliance with the children's programming
    commercial limits, and apparently violated Section 73.670 by failing
    to comply with the limits on commercial matter in children's
    programming.[^3] Based upon our review of the facts and
    circumstances before us, we conclude that the Licensee is apparently
    liable for a monetary forfeiture in the amount of four thousand
    dollars (\$4,000) for its violations of Sections 73.3526(e)(11)(i)
    and (ii) and 73.670.

**II. BACKGROUND**

2.  In the Children's Television Act of 1990, Pub. L. No. 101-437, 104
    Stat. 996-1000, *codified at* 47 U.S.C. §§ 303a, 303b and 394,
    Congress directed the Commission to adopt rules, *inter alia,*
    limiting the number of minutes of commercial matter that television
    stations may air during children's programming, and to consider in
    its review of television license renewal applications the extent to
    which the licensee has complied with such commercial limits.
    Pursuant to this statutory mandate, the Commission adopted Section
    73.670 of the Rules, 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. The Commission
    also stated that a program associated with a product, in which
    commercials for that product are aired, would cause the entire
    program to be counted as commercial time (a "program-length
    commercial").[^4]

3.  Section 73.3526 of the Rules requires a commercial broadcast
    licensee to maintain a public inspection file containing specific
    types of information related to station operations.[^5] Pursuant to
    subsection 73.3526(e)(11)(ii), 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 its
    compliance with the children's television commercial limits imposed
    by Section 73.670 of the Rules. Additionally, subsection
    73.3526(e)(11)(i) provides that a TV issues/programs list is to be
    placed in a commercial TV broadcast station's public inspection file
    each calendar quarter. These subsections of Section 73.3526 require
    licensees to place such records concerning commercial limits and TV
    issues/programs lists for each quarter in the station's public
    inspection file by the tenth day of the succeeding calendar quarter.
    Where lapses occur in maintaining the public file, neither the
    negligent acts or omissions of station employees or agents, nor the
    subsequent remedial actions undertaken by the licensee, excuse or
    nullify the licensee's rule violation.[^6]

4.  On October 3, 2005, the Licensee filed its license renewal
    application (FCC Form 303-S) for Station KSFX-TV (the "Application")
    (File No. BRCT-20051003ABD). In response to Section IV, Question 3
    of the Application, the Licensee stated that, during the previous
    license term, it had failed to timely place in its public inspection
    file all of the documentation required by Section 73.3526 of the
    Rules. In Exhibit 17, the Licensee indicated that during its review
    of the public inspection file in preparation for the filing of the
    Application, it discovered that TV issues/programs lists for 1998
    and documents evidencing compliance with the commercial limits in
    children's programming for the first and second quarters of 1998
    were missing.

5.  Further, in response to Section IV, Question 5, the Licensee stated
    that, during the previous license term, it failed to comply with the
    limitations on commercial matter in children's programming specified
    in Section 73.670 of the Commission's Rules. In Exhibit 19, the
    Licensee indicated that the Station exceeded the children's
    television commercial limits on five occasions between August 8,
    1998, and September 26, 1998. Of those five overages, two were
    15-seconds in duration and three were 30-seconds in duration. The
    Licensee attributed the 15-second overages to human error and the
    30-second overages to commercial make goods. The Licensee described
    the procedures it implemented to prevent future violations.

**III. DISCUSSION**

6.  The Licensee's failure to place in its Station KSFX-TV public
    inspection file all required TV issues/programs lists and records
    concerning compliance with the children's programming commercial
    limits constitutes apparent willful and repeated violations of
    Sections 73.3526(e)(11)(i) and 73.3526(e)(11)(ii). Moreover, the
    Licensee's failure to comply with the limits on commercial matter in
    children's programming constitutes an apparent willful and repeated
    violation of Section 73.670.

7.  This *NAL* is issued pursuant to Section 503(b)(1)(B) of the Act.
    Under that provision, 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.[^7] Section 312(f)(1) of the Act defines willful as "the
    conscious and deliberate commission or omission of \[any\] act,
    irrespective of any intent to violate" the law.[^8] The legislative
    history to Section 312(f)(1) of the Act clarifies that this
    definition of willful applies to both Sections 312 and 503(b) of the
    Act,[^9] and the Commission has so interpreted the term in the
    Section 503(b) context.[^10] 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."[^11]

8.  The Commission's *Forfeiture Policy Statement* and Section
    1.80(b)(4) of the Rules establish a base forfeiture amount of
    \$10,000 for violation of Section 73.3526 and a base forfeiture
    amount of \$8,000 for violation of Section 73.670.[^12] In
    determining the appropriate forfeiture amount, we may adjust the
    base amount upward or downward by considering 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."[^13]

9.  In this case, the Licensee reported that TV issues/programs lists
    for 1998 and documents evidencing compliance with the commercial
    limits in children's programming for the first and second quarters
    of 1998 were missing from the public inspection file. Considering
    the record as a whole, we believe that a \$4,000 proposed forfeiture
    is appropriate for the apparent willful and repeated violations of
    Sections 73.3526(e)(11)(i) and (ii), and 73.670.

**IV. ORDERING CLAUSES**

10. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Section 1.80 of the
    Commission's Rules, that Nexstar Broadcasting, Inc. is hereby
    NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
    four thousand dollars (\$4,000) for its apparent willful and
    repeated violations of Sections 73.3526(e)(11)(i), (e)(11)(ii), and
    73.670 of the Commission's Rules.

11. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    Rules, that, within thirty (30) days of the release date of this
    *NAL,* Nexstar Broadcasting, Inc. SHALL PAY the full amount of the
    proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

12. Payment of the proposed 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, at P.O. Box 358340, Pittsburgh,
    Pennsylvania 15251-8340. Payment by overnight mail may be sent to
    Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
    Pennsylvania 15251. Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account number
    911-6229.

13. The response, if any, must be mailed to Office of the Secretary,
    Federal Communications Commission, 445 12^th^ Street, S.W.,
    Washington, D.C. 20554, ATTN: Barbara A. Kreisman, Chief, Video
    Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No.
    referenced above.

14. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the respondent
    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
    respondent's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

15. Requests for full payment of the forfeiture proposed in this *NAL*
    under the installment plan should be sent to: Associate Managing
    Director- Financial Operations, 445 12th Street, S.W., Room 1-A625,
    Washington, D.C. 20554.[^14]

16. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
    First Class and Certified Mail, Return Receipt Requested, to Nexstar
    Broadcasting, Inc., 909 Lake Carolyn Parkway, Suite 1450, Irving,
    Texas 75039, and to its counsel, Elizabeth Hammond, Esquire, Drinker
    Biddle & Reath LLP, 1500 K Street, N.W., Suite 1100, Washington,
    D.C. 20005-1209.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

[^1]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

[^2]: See 47 C.F.R. § 0.283.

[^3]: *See* 47 C.F.R. §§ 73.3526(e)(11)(i), 73.3526(e)(11)(ii), and
    73.670.

[^4]: *Children's Television Programming*, 6 FCC Rcd 2111, 2118, *recon.
    granted in part*, 6 FCC Rcd 5093, 5098 (1991).

[^5]: *See* 47 C.F.R. § 73.3526.

[^6]: *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).

[^7]: 47 U.S.C. § 503(b)(1)(B); *see also* 47 C.F.R. § 1.80(a)(1).

[^8]: 47 U.S.C. § 312(f)(1).

[^9]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^10]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^11]: 47 U.S.C. § 312(f)(2).

[^12]: *See Forfeiture Policy Statement and Amendment of Section 1.80(b)
    of the Rules to Incorporate the Forfeiture Guidelines*, Report and
    Order, 12 FCC Rcd 17087, 17113-15 (1997) *("Forfeiture Policy
    Statement"),* *recon. denied*, 15 FCC Rcd 303 (1999); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section I.

[^13]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement,*
    12 FCC Rcd at 17100-01; 47 C.F.R. § 1.80(b)(4); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section II.

[^14]: *See* 47 C.F.R. § 1.1914.