**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | Facility I.D. No. 27431      |
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| Ramar Communications II, Ltd.    | ** | NAL/Acct. No. 0741420014     |
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| Licensee of Station KUPT(TV)     | *  | FRN: 0004249850              |
|                                  | *) |                              |
| Hobbs, New Mexico                | ** |                              |
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**NOTICE OF APPARENT**

**LIABILITY FOR FORFEITURE**

**Adopted: February 12, 2007 Released: February 14, 2007**

By the Chief, 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, Media Bureau pursuant to authority
    delegated under Section 0.283 of the Rules,[^2] we find that Ramar
    Communications II, Ltd. (the "Licensee"), licensee of Station
    KUPT(TV), Hobbs, New Mexico (the "Station"), apparently violated
    Sections 73.3526(e)(11)(ii) and 73.3526(e)(11)(iii) of the Rules, by
    failing to place all required records concerning its compliance with
    the children's programming commercial limits and by failing to
    publicize the existence and location of the Station's Children's
    Television Programming Reports and Section 73.673 of the Rules by
    failing to identify for program guide publishers the Station's core
    programming and the age groups for which those programs were
    intended.[^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 thirteen thousand dollars
    (\$13,000) for its violations of Sections 73.3526(e)(11)(ii) and
    73.3526(e)(11)(iii), and we admonish the Licensee for its violation
    of Section 73.673.

**II. BACKGROUND**

2.  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.[^4] 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.[^5] 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 the
    licensee's rule violation.[^6]

3.  Further, under the Commission's rules implementing the Children's
    Television Act of 1990 (CTA),[^7] each television broadcast station
    licensee has an obligation, during its license term, to air
    programming that serves the educational and informational needs of
    children through both the licensee's overall programming and
    programming "specifically designed" to educate and inform children
    (core programming).[^8] The Commission's rules require commercial
    licensees to provide information to the public about the shows they
    air to fulfill their obligation. Subsection 73.3526(e)(11)(iii) of
    the Rules requires each commercial television broadcast station 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. As set forth in
    Subsection 73.3526(e)(11)(iii), licensees are also required to file
    the reports with the Commission and to publicize for the public the
    existence and location of the reports. In addition, licensees are
    required to provide to publishers of program guides, information
    identifying programming specifically designed to educate and inform
    children, including an indication of the age group for which the
    program is intended.[^9]

4.  On June 1, 2006, the Licensee filed its license renewal application
    for Station KUPT(TV) (the "Application.") (File No.
    BRCT-20060601ACP). 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, it indicated that in its review of the public
    inspection file, it discovered that its records concerning
    compliance with the commercial limits in children's programming for
    the second through the fourth quarters of 2001, all of 2002, and the
    first through the third quarters of 2003 were missing.

5.  In addition, in response to Section IV, Question 10 of the
    Application, the Licensee stated that it had failed to publicize the
    existence and location of the Station's Children's Television
    Programming Reports, as set forth in Section 73.3526(e)(11)(iii) of
    the Rules. In Exhibit 24, it reported that it publicized the
    existence and location of the Station's Children's Television
    Programming Reports from the beginning of the license term until
    November 2002. The Licensee indicated that by November 2002, the
    Station had installed a new traffic system and the announcements
    regarding the existence and location of the Children's Television
    Programming Reports were inadvertently not programmed into the new
    system. The Licensee asserted that upon discovery of this omission
    in December 2005, it implemented procedures to ensure future
    compliance.

6.  Moreover, in Exhibit 23, the Licensee reported that although it
    provided to publishers of program guides, programming schedules that
    included the Station's children's programming, it "failed to
    identify those programs that were specifically designed to educate
    and inform children, and the age groups for which those programs
    were intended," as required by Section 73.673 of the Rules. The
    Licensee claimed that this error was corrected on April 16, 2001.

**III. DISCUSSION**

7.  The Licensee's failure to place in its Station KUPT(TV) public
    inspection file all required records concerning its compliance with
    the children's programming commercial limits, and its failure to
    publicize the existence and location of the Station's Children's
    Television Programming Reports constitutes a willful and repeated
    violation of Section 73.3526(e)(11)(iii). 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.[^10] 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.[^11] 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,[^12] and
    the Commission has so interpreted the term in the Section 503(b)
    context.[^13] 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."[^14]

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.[^15] 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."[^16]

9.  In this case, the Licensee reported that its records concerning its
    compliance with the children's programming commercial limits for the
    second through the fourth quarters of 2001, all of 2002, and the
    first through the third quarters of 2003 were missing. Moreover, the
    Licensee acknowledged that it failed to publicize the existence and
    location of the Station's Children's Television Programming Reports
    from November 2002 until December 2005. Accordingly, we find that
    the Licensee is apparently liable for a forfeiture in the amount of
    \$10,000 for its failure to place all required records concerning
    its compliance with the children's programming commercial limits in
    the public inspection file in apparent willful and repeated
    violation of Section 73.3526(e)(11)(ii), and the amount of \$3,000
    for its failure to publicize the existence and location of the
    Station's Children's Television Programming Reports for more than
    three years in apparent willful and repeated violation of Section
    73.3526(e)(11)(iii), for a total proposed forfeiture in the amount
    of \$13,000. Finally, we believe that an admonishment is warranted
    for the Licensee's violation of Section 73.673.

**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 Ramar Communications II, Ltd. is hereby
    NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
    thirteen thousand dollars (\$13,000) for its apparent willful and
    repeated violations of Sections 73.3526(e)(11)(ii) and
    73.3526(e)(11)(iii) 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,* Ramar Communications II, Ltd. 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
    911-6106.

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.[^17]

16. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
    First Class and Certified Mail, Return Receipt Requested, to Ramar
    Communications II, Ltd., 9800 University Avenue, Lubbock, Texas
    79423, and to its counsel, Dennis P. Corbett, Esq., Leventhal Senter
    & Lerman PLLC, 2000 K Street, N.W., Suite 600, Washington, D.C.
    20006.

FEDERAL COMMUNICATIONS COMMISSION

Monica Desai

Chief, 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)(ii), 73.3526(e)(11)(iii), and
    73.673.

[^4]: *See* 47 C.F.R. § 73.3526.

[^5]: 47 C.F.R. § 73.670.

[^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]: Pub. L. No. 101-437, 104 Stat. 996-1000, *codified at* 47 U.S.C.
    Sections 303a, 303b and 394.

[^8]: 47 C.F.R. § 73.671.

[^9]: 47 C.F.R. § 73.673.

[^10]: 47 U.S.C. § 503(b)(1)(B); *see also* 47 C.F.R. § 1.80(a)(1).

[^11]: 47 U.S.C. § 312(f)(1).

[^12]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^13]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^14]: 47 U.S.C. § 312(f)(2).

[^15]: *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.

[^16]: 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.

[^17]: *See* 47 C.F.R. § 1.1914.