*Pages 1--5 from  Microsoft Word - 60630.doc*
 Federal  Communications  Commission  DA  06-  2210 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 E-  DA-  HOE,  Inc. 
 Licensee  of  Class  A  Television  Station  KSVX-  LP,  Hailey,  Idaho 


 )  ) 
 )  ) 
 )  ) 
 File  No.  EB-  04-  IH-  0137  NAL  Account  No.  200732080003 
 FRN  No.  0001635317 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  October  27,  2006  Released:  October  30,  2006 


 By  the  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau: 
 I.  INTRODUCTION 


 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  ("  NAL"),  we  find  that  E-  DA-  HOE,  Inc.,  (  E-  DA-  HOE  or  the  Company),  licensee  of  Class  A  Television  Station  KSVX-  LP,  Hailey,  Idaho,  (the 
 Station),  willfully  and  repeatedly  committed  22  apparent  violations  of  Section  73.1201  of  the  Federal  Communication  Commissions  (  FCC  or  Commission)  rules,  1  relating  to  station  identification.  For  the 
 following  reasons,  we  conclude  that  E-  DA-  HOE  is  apparently  liable  for  a  forfeiture  in  the  amount  of  $5,000. 
 II.  BACKGROUND 
 2.  The  Commission  received  a  complaint  alleging  that  the  Station  failed  to  provide  appropriate  station  identification  during  its  television  programming  (the  Complaint).  2  The  Complaint 


 included  four  video  tapes  purportedly  depicting  Station  KSVX-  LP  programming  on  various  dates  between  January  25  and  April  1,  2004.  Enforcement  Bureau  staff  reviewed  the  video  tapes  and  determined  that  they 
 contained  24  hours  of  television  programming,  yet  contained  only  two  station  identification  announcements.  The  Enforcement  Bureau  issued  a  letter  of  inquiry  to  E-  DA-  HOE,  directing  it  to  explain, 
 inter  alia,  its  station  identification  policies.  3  E-  DA-  HOE,  by  counsel,  responded  by  letter  that  the  Station  identifies  itself  twice  an  hour,  as  close  to  the  half  hour  and  hour  mark  as  possible.  4  E-  DA-  HOE  further 
 explains  that  the  Station  uses  identification  equipment  to  insert  automatically  a  station  identification  by  superimposing  the  identification  onto  the  top  center  of  the  screen  for  ten  seconds.  5  E-  DA-  HOE  adds, 


 1  See  47  C.  F.  R.    73.  1201.  Generally,  the  rule  requires  identification  at  the  beginning  and  end  of  operation  and  hourly 
 during  operation.  See  also  Establishment  of  a  Class  A  Television  Service,  Report  and  Order,  15  FCC  Rcd  6355,  6366,    24  (2000)  (stating  that  Class  A  television  stations  are  required  to  comply  with  station  identification  requirements  of 


 Section  73.  1201).  2 
 See  Complaint  received  April  13,  2004  (  There  are  no  station  I.  D.  s  except  during  morning  local  programming.).  3 
 See  Letter  from  William  D.  Freedman,  Deputy  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  FCC,  to  E-  DA-  HOE,  Inc.,  dated  June  30,  2005  (  LOI). 


 4  See  Letter  from  Brendan  Holland,  Esq.,  Pillsbury  Winthrop  Shaw  Pittman  LLP,  counsel  for  E-  DA-  HOE,  Inc.  to 
 David  Brown,  Esq.,  Assistant  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  FCC,  dated  December  6,  2005  (  LOI  Response). 


 5  See  id.  at  1-  2. 
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 however,  that  on  occasion,  due  to  unforeseen  technical  difficulties,  most  often  as  a  result  of  a  thunderstorm  or  power  surge,  the  automated  equipment  that  inserts  the  station  identification  announcements  has  failed  to 
 insert  the  announcement.  Such  power  fluctuations  occur  infrequently  and  are  remedied  by  station  personnel  as  soon  as  they  are  detected,  virtually  always  within  hours  of  the  triggering  event.  6  E-  DA-  HOE  states  that 
 it  does  not  keep  records  of  these  outages  and  noted  that  in  November  2005,  shortly  before  the  LOI  Response  was  filed,  the  Station  installed  a  battery  back-  up  system  to  prevent  future  interruptions.  7 


 3.  Subsequently,  the  Enforcement  Bureau  issued  a  supplemental  letter  of  inquiry  to  E-  DA-HOE,  which  included  the  four  six-  hour  videotapes  received  with  the  Complaint.  8  The  Supplemental  LOI 
 directed  E-  DA-  HOE  to  state  whether  each  tape  represented  an  accurate  recording  of  Station  programming  on  the  date  indicated,  and  requested  that  E-  DA-  HOE  respond  to  the  allegation  that,  on  those  occasions,  the 
 Station  failed  to  identify  itself  in  accordance  with  the  Commissions  requirements.  9  E-  DA-  HOE,  by  counsel,  responded  to  the  Supplemental  LOI,  admitting  that  the  tapes  represented  Station  programming,  10 
 but  contending  that  they  contain  discrepancies  both  as  to  the  number  of  hours  recorded  and  the  dates  on  which  the  programming  aired.  11  There  is  no  dispute,  however,  that  the  tapes  represent  at  least  24  hours  of 
 programming  aired  by  the  Station  and  that  during  that  time  the  Station  was  identified  only  twice. 
 III.  DISCUSSION 
 4.  Based  on  our  review  of  the  record,  we  find  that  E-  DA-  HOE  apparently  violated  Section  73.1201  of  the  Commissions  rules  at  least  22  times.  This  rule  provides  in  pertinent  part: 


 (a)  When  regularly  required.  Broadcast  station  identification  announcements  shall  be  made: 
 (1)  At  the  beginning  and  ending  of  each  time  of  operation,  and 


 6  See  id.  at  2. 
 7  See  id. 
 8  See  Letter  from  William  H.  Davenport,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  FCC,  to 
 Brendan  Holland,  Esq.,  Pillsbury  Winthrop  Shaw  Pittman  LLP,  counsel  for  E-  DA-  HOE,  Inc.  dated  June  16,  2005  (  Supplemental  LOI). 


 9  See  id.  at  1-  2. 
 10  See  Letter  from  Brendan  Holland,  Esq.,  Davis  Wright  Tremaine  LLP,  counsel  for  E-  DA-  HOE,  Inc.  to  Elizabeth 
 Valinoti,  Esq.,  Assistant  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  FCC,  dated  August  16,  2006  at  1-  3  (  Supplemental  LOI  Response). 


 11  For  example,  E-  DA-  HOE  responded  that  each  tape  consists  of  six  hours  of  programming,  rather  than  eight  hours,  as 
 stated  on  the  tape  labels.  See  id.  at  2.  In  addition,  the  complainant  apparently  confused  the  labels  for  Tapes  1  and  4.  According  to  E-  DA-  HOE,  based  on  its  review  of  Station  program  logs,  Tape  1,  which  is  labeled  January  26,  2004,  4 


 AM  to  12  PM,  actually  consists  of  programming  aired  on  April  1,  2004  from  4  a.  m.  to  10:  07  p.  m.  See  id.  Similarly,  E-  DA-  HOE  states  that  Tape  4,  which  is  labeled  April  1,  2004,  4  AM  to  12  PM,  actually  consists  of  programming 
 aired  sometime  between  January  19-  26,  2004,  between  4  a.  m.  and  10:  07  a.  m.  See  id.  Given  that  this  material  is  contemporaneous  with  the  material  intended  for  Tape  1,  we  conclude  that  this  programming  aired  on  January  26, 
 2004,  as  stated  on  the  complainants  label.  Both  tapes  each  include  only  one  station  identification  announcement,  five  hours  into  the  recorded  programming.  Tapes  2  and  3  contain  six  hours  of  programming  aired  on  January  25,  2004 
 between  4  p.  m.  and  12  a.  m.  and  February  26,  2004  between  12  p.  m.  and  8  p.  m.,  respectively.  E-  DA-  HOE  states  that  because  both  of  these  tapes  consist  of  network  programming  or  infomercials,  the  licensee  cannot  ascertain  the  specific 
 hours  the  material  aired.  See  id.  Neither  tape  contains  any  station  identification  announcement.  E-  DA-  HOE  asserts  that  the  omissions  of  automated  station  identification  on  the  tapes  occurred  because  the  tapes  were  made  during 
 interruptions  due  to  power  outages.  See  id. 
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 (2)  Hourly,  as  close  to  the  hour  as  feasible,  at  a  natural  break  in  program  offerings.  Television  and  Class  A  television  broadcast  stations  may  make  these  announcements 
 visually  or  aurally.  12 
 5.  Our  review  of  the  video  tapes  confirms  that  E-  DA-  HOE  failed  to  identify  its  station  hourly,  as  required  by  our  rules,  over  periods  lasting  at  least  five  hours  on  January  26  and  April  1,  2004  and  at  least  six 
 hours  on  January  25  and  February  26,  2004,  for  a  total  of  22  missed  announcements.  E-  DA-  HOE  asserts  that  the  Stations  station  identification  omissions  were  the  result  of  power  outages,  although  it  can  only  confirm 
 that  this  was  the  case  on  one  of  the  dates  in  question.  13  We  will  accept  E-  DA-  HOEs  sworn  representations  in  this  regard;  however,  we  find  that  the  licensees  explanation  does  not  eliminate  E-  DA-  HOEs  responsibility 
 for  its  malfunctioning  equipment.  14  E-  DA-  HOE  admits  that  its  equipment  had  failed  in  the  past  and  that  it  knew  the  reason  for  those  failures,  yet  the  licensee  took  no  remedial  action  until  shortly  before  it  responded  to 
 our  LOI.  15 
 6.  Section  503(  b)(  1)  of  the  Communications  Act  of  1934,  as  amended,  16  provides  that  any  person  who  willfully  or  repeatedly  fails  to  comply  substantially  with  the  terms  and  conditions  of  any 
 license,  or  willfully  or  repeatedly  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.  The  term 
 "willful"  as  used  in  Section  503(  b)(  1)  has  been  interpreted  to  mean  simply  that  the  acts  or  omissions  are  committed  knowingly.  17  The  term  repeated  means  that  the  action  was  committed  or  omitted  more  than 
 once,  or  lasts  more  than  one  day.  18  Based  on  the  evidence  before  us,  we  find  that  E-  DA-  HOE  failed  to  properly  broadcast  station  identification  information,  in  apparent  willful  and  repeated  violation  of  Section 
 73.1201  of  the  Commissions  rules. 
 7.  The  statutory  maximum  forfeiture  amount  for  each  apparent  violation  in  this  case  is  $27,500.  19  Pursuant  to  Section  1.80  of  the  Commissions  rules,  20  the  base  forfeiture  amount  for  a  violation  of 


 12  47  C.  F.  R.    73.1201. 
 13  Supplemental  LOI  Response  at  4. 
 14  We  do  not  find  sufficient  support  for  the  Complaints  assertion  that  the  Station  generally  failed  to  identify  itself  during 
 non-  local  originated  programming.  E-  DA-  HOE  asserts  that  its  equipment,  when  working,  inserts  station  identification  during  non-  local  programming.  Supplemental  LOI  Response  at  3.  The  President  and  majority  owner  of  E-  DA-  HOE  has 


 supported  this  statement  with  a  sworn  declaration.  Id.  (Declaration  of  W.  Clinton  Stennett).  Having  no  evidence  to  the  contrary  beyond  the  Complaint's  sweeping  assertion,  we  will  accept  this  sworn  statement  at  face  value. 
 15  See  LOI  Response  at  2  (describing  causes  of  equipment  malfunctions  and  station  practice  of  remedying  the 
 problems  as  soon  as  they  are  detected,  virtually  always  within  hours  of  the  triggering  event).  16 
 See  47  U.  S.  C.    503(  b)(  1).  17 
 Section  312(  f)(  1)  of  the  Communications  Act,  or  1934,  as  amended,  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  this  Act.  See  Southern  California  Broadcasting  Co.,  Memorandum  Opinion  and  Order,  6  FCC  Rcd  4387  (1991). 
 18  Callais  Cablevision,  Inc.,  Grand  Isle,  Louisiana,  Notice  of  Apparent  Liability,  16  FCC  Rcd  1359,  1362    9  (2001). 
 19  Because  these  violations  occurred  in  early  2004,  the  statutory  maximum  applicable  here  is  $27,500.  Prior  to  the 
 broadcasts  at  issue,  the  Commission  amended  its  rules  to  increase  the  maximum  penalties  to  account  for  inflation.  See  Amendment  of  Section  1.80  of  the  Commissions  Rules,  Order,  15  FCC  Rcd  18221  (2000)  (effective  November  13, 


 2000).  Under  the  revised  rules,  for  violations  occurring  on  or  after  November  13,  2000,  the  Commission  may  propose  forfeitures  against  broadcast  licensees  of  up  to  $27,500  per  violation.  These  apparent  violations  occurred  after  that 
 effective  date,  and  prior  to  a  similar  adjustment  effective  September  9,  2004.  See  Amendment  of  Section  1.  80  of  the  Commissions  Rules,  Order,  19  FCC  Rcd  10945  (2004)  (the  current  statutory  maximum  is  $32,500  for  violations  of 
 this  type). 
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 the  station  identification  rule  is  $1,000.  Section  1.80(  b)(  4)  of  the  Commissions  rules  also  specifies  that,  in  determining  the  amount  of  a  forfeiture  penalty,  the  Commission  or  its  designee  will  take  into  account  "the 
 nature,  circumstances,  extent,  and  gravity  of  the  violations  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."  21 


 8.  As  noted  above,  E-  DA-  HOE  apparently  violated  the  Commissions  station  identification  rule  for  periods  lasting  at  least  five  to  six  hours  each  on  four  occasions,  for  a  total  of  22  violations  of  Section 
 73.1201.  If  we  proposed  a  forfeiture  assessing  the  base  amount  of  $1,000  for  each  apparent  violation  in  this  case,  E-  DA-  HOE  would  face  a  $22,000  forfeiture.  We  find  that  such  an  amount  would  be  excessive  here. 
 In  similar  cases,  we  have  proposed  forfeitures  based  on  the  totality  of  the  circumstances,  rather  than  on  a  per-  violation  basis.  22  Based  on  our  review  of  the  circumstances  in  this  case,  we  find  that  a  $5,000  proposed 
 forfeiture  is  appropriate.  E-  DA-  HOE  knew  its  station  identification  equipment  would  break  down  after  electrical  storms  and  power  surges,  yet  it  installed  a  back-  up  power  system  only  after  it  learned  of  our 
 investigation.  We  find  that  E-  DA-  HOEs  disregard  for  its  station  identification  responsibilities  was  egregious  and  merits  a  forfeiture  sufficient  to  deter  it  and  other  licensees  from  similar  misconduct. 
 Although  the  nature  of  E-  DA-  HOE's  apparent  violations  might  justify  a  higher  proposed  forfeiture,  however,  we  decline  to  do  so  in  light  of  the  licensee's  overall  history  of  compliance  with  FCC  rules.  23 


 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,  0.311,  and  1.80  of  the  Commission's  Rules,  E-  DA-  HOE,  Inc.  is 


 hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  A  FORFEITURE  in  the  amount  of  $5,  000  for  willfully  violating  Section  73.1201  of  the  Commissions  rules. 


 10.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Section  1.80  of  the  Commission's  rules,  within  30  days  of  the  release  date  of  this  Notice  of  Apparent  Liability  for  Forfeiture,  E-  DA-  HOE,  Inc.  SHALL  PAY 
 the  full  amount  of  the  proposed  forfeiture  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 


 11.  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  in  the  caption.  Payment  by  check  or  money  order  may  be  mailed  to  Federal  Communications  Commission,  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. 
 12.  IT  IS  FURTHER  ORDERED  that  the  response,  if  any,  shall  be  mailed  to  William  H.  Davenport,  Chief,  Investigation  and  Hearings  Division,  Enforcement  Bureau,  Federal  Communications 


 (...  continued  from  previous  page)  20  See  47  C.  F.  R.    1.80. 
 21  47  C.  F.  R.    1.80(  b)(  4). 
 22  See  Leighton  Enterprises,  Inc.,  Notice  of  Apparent  Liability,  20  FCC  Rcd  5991  (Enf.  Bur.  2005)  (proposing  $5,  000 
 forfeiture  for  10-  week  period  of  station  identification  violations);  Bay  Broadcasting  Corp.,  Notice  of  Apparent  Liability,  15  FCC  Rcd  9387  (Enf.  Bur.  2000)  (proposing  $1,  500  forfeiture  against  station  that  failed  to  run  station 


 identification  announcements  for  two  days).  23 
 See  Max  Media  of  Montana,  L.  L.  C.,  Forfeiture  Order,  18  FCC  Rcd  21375,  21379    14  (Enf.  Bur.  2003)  (forfeiture  reduced  for  unblemished  record  );  South  Central  Communications  Corp.,  Forfeiture  Order,  18  FCC  Rcd  700,  703    9 


 (Enf.  Bur.  2003). 
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 Commission,  445  12  th  Street,  S.  W.,  Suite  4-  C330,  Washington,  D.  C.  20554,  and  must  include  the  NAL/  Acct.  No.  referenced  in  the  caption. 
 13.  IT  IS  FURTHER  ORDERED  that  the  Commission  shall  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  respondents  current  financial  status.  Any  claim  of  inability  to  pay  must  specifically  identify  the  basis  for  the  claim  by  reference  to  the  financial  documentation  submitted. 


 14.  Requests  for  payment  of  the  full  amount  of  this  NAL  under  an  installment  plan  should  be  sent  to:  Associate  Managing  Director  --  Financial  Operations,  Federal  Communications  Commission,  445 
 12th  Street,  S.  W.,  Room  1-  A625,  Washington,  DC  20554.  24 
 15.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Notice  of  Apparent  Liability  for  Forfeiture  shall  be  sent  by  Certified  Mail  -  Return  Receipt  Requested,  and  regular  mail,  to  Brendan  Holland,  Esquire, 
 Davis  Wright  Tremaine  LLP,  1500  K  Street,  N.  W.  Suite  450,  Washington,  D.  C.  20005-  1272,  and  to  the  licensee. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 William  H.  Davenport  Chief,  Investigations  and  Hearings  Division 
 Enforcement  Bureau 


 24  See  47  C.  F.  R.    1.1914. 
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