Federal Communications Commission	FCC 24-109
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554 

In the Matter of

ESPN, Inc.


  )
  )
  )
  )
  )
 

                

File No.:  EB-IHD-23-00035802
NAL/Acct. No.:  202432080027
FRN:  0001548064
             
NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:  October 10, 2024	Released:  October 17, 2024

By the Commission:  Commissioner Simington dissenting.

I. INTRODUCTION
1. We propose a penalty of $146,976, the statutory maximum for six apparent violations by a Federal Communications Commission (Commission or FCC) regulatee, against ESPN, Inc. (ESPN) for apparently willfully and repeatedly violating the FCC’s rules that prohibit the transmission of, or causing the transmission of, false or deceptive emergency alert system (EAS) codes or the EAS Attention Signal, or simulations thereof (together, EAS Tones).  On October 20, 2023, October 23, 2023, and October 24, 2023, ESPN apparently transmitted, or caused the transmission of, EAS codes during a promotional segment (Promo Spot) concerning the start of the 2023-2024 National Basketball Association (NBA) season in the absence of any actual emergency, authorized test of the EAS, or qualified public service announcement (PSA). 
2. The EAS is a national system that federal, state, and local government authorities use to disseminate public warnings of impending emergencies, such as hurricanes and other dangerous weather conditions, wildfires, and child abductions (AMBER alerts), over broadcast, cable, and satellite networks to consumers’ radios, televisions, and other audio and video devices. See Amendment of Part 11 of the Commission’s Rules Regarding the Emergency Alert System, PS Docket No. 15-94, Report and Order, 37 FCC Rcd 11844, 11845, para. 4 (2022).
  Broadcasters, cable television operators, wireless cable operators, wireline video service providers, satellite digital audio radio service providers, and direct broadcast satellite providers also are required to supply the communications capability for delivery of nationwide messages to the American public during a national emergency via the EAS. See Fox Corporation d/b/a Fox Television Stations, LLC et al., Notice of Apparent Liability for Forfeiture, FCC 23-4, 2023 WL 1067995, at *1, para. 2 (2023) (forfeiture paid) (Fox NAL); CBS Broadcasting Inc. d/b/a CBS Television Network, CBS Television Stations, Inc., CBS Stations Group of Texas LLC, CBS LITV LLC, Notice of Apparent Liability for Forfeiture, 34 FCC Rcd 8417, 8417, para. 1 (2019) (forfeiture paid) (CBS NAL); FEMA, Emergency Alert System, https://www.fema.gov/emergency-managers/practitioners/integrated-public-alert-warning-system/public/emergency-alert-system (last visited Mar. 14, 2024).

3. To preserve the unique purpose and effectiveness of the EAS Tones, the Commission enforces laws that prohibit their use or simulation, A “simulation” of the EAS tones includes not only recordings of actual EAS codes or Attention Signal, see 47 CFR § 11.31, but also sounds that mimic or are substantially similar to them, such that an average listener could reasonably mistake the sounds for an actual EAS code or Attention Signal.  Emergency Alert System: False, Fraudulent or Unauthorized Use of the Emergency Alert System Attention Signal and Codes is Strictly Prohibited, Public Notice, 28 FCC Rcd 15438, 15440 (EB 2013) (2013 EAS Enforcement Advisory).  By contrast, general alarms or other loud noises, including bells and police or fire sirens, are not considered “simulations” of the EAS tones and are not prohibited under section 11.45 of the Commission’s rules.  Id.  
 except for specific Permitted Uses. Permitted uses of the EAS are limited to alerts of actual emergencies, authorized tests of the EAS, qualified PSAs, or as otherwise specified in sections 10.520(d), 11.46, and 11.61 of the Commission’s rules (collectively, Permitted Uses).  See 47 CFR § 11.45(a).
  The Commission has warned that the use of simulated or actual EAS Tones for non-authorized purposes—such as commercial or entertainment purposes—can lead to “alert fatigue,” whereby the public becomes desensitized to the alerts, questioning or simply disregarding whether a particular alert is intended to warn about a real, imminent threat or some other cause. See, e.g., Fox NAL, at *1, para. 3; CBS NAL, 34 FCC Rcd at 8418, para. 2; Amendment of Part 11 of the Commission’s Rules Regarding the Emergency Alert System, Wireless Emergency Alerts, PS Docket Nos. 15-94, 15-91, Report and Order and Further Notice of Proposed Rulemaking, 33 FCC Rcd 7086, 7091-92, para. 9 (2018); 2013 EAS Enforcement Advisory, at 15438.
  Moreover, because the EAS codes include operative data elements, See 47 CFR § 11.31(a).  The EAS uses a four-part message for an emergency activation, consisting of:  Preamble and EAS Header Codes; audio Attention Signal; message; and Preamble and EAS End of Message (EOM) Codes.  Id.  The sounds of an EAS message serve the dual purposes of capturing a listener’s or viewer’s attention and conveying specially coded information for equipment that is activated by the EAS message as part of an actual emergency or authorized test.  See Viacom, Inc., NBC Universal Media, LLC, ESPN Inc., Notice of Apparent Liability for Forfeiture, 29 FCC Rcd 2548, 2548, para. 1 (2014) (Viacom/ESPN NAL), aff’d, Viacom, Inc., ESPN, Inc., Forfeiture Order, 30 FCC Rcd 797 (2015) (forfeiture paid) (Viacom/ESPN FO).  The EAS codes consist of audible sounds in which encoded information regarding the specific alert is embedded.  See Viacom/ESPN NAL, 29 FCC Rcd at 2548, para 1.  The separate EAS Attention Signal that follows the EAS codes includes two tones that are transmitted simultaneously.  Id.
 the misuse of simulated or actual EAS codes may result in false activations of the EAS that can spread false information or lock out legitimate activations of the EAS.  Unauthorized use of the EAS Tones thus undermines the integrity and effectiveness of the EAS and presents a substantial threat to public safety.  
4. In this Notice of Apparent Liability for Forfeiture, we find that ESPN apparently willfully and repeatedly violated section 11.45(a) of the Commission’s rules See 47 CFR § 11.45(a).
 on October 20, 2023, October 23, 2023, and October 24, 2023, when it transmitted or caused the transmission of EAS codes during a Promo Spot in the absence of any actual emergency, authorized test of the EAS, qualified PSA, or other Permitted Uses. See Response to Letter of Inquiry, from Matthew S. DelNero and Jorge Ortiz, Covington & Burling LLP, counsel to ESPN, Inc., to Patrick M. McGrath, Chief, Investigations and Hearings Division, FCC Enforcement Bureau, at 2-4, Responses to Questions 3-6 (Feb. 9, 2024, as supplemented Feb. 21, 2024) (on file in EB-IHD-23-00035802) (LOI Response).  This Notice of Apparent Liability for Forfeiture does not disclose material identified as confidential in the LOI Response, and we defer ruling on the Confidentiality Request unless and until necessary.  See 47 CFR § 0.459(d)(3) (the Commission may defer acting on requests for confidential treatment of materials submitted to the Commission until a request for inspection has been made pursuant to 47 CFR § 0.460 or 47 CFR § 0.461; such material will be accorded confidential treatment until the Commission acts on the confidentiality request and all subsequent appeal and stay proceedings have been exhausted).
  The prohibition on such transmissions has been in place for many years, and the Commission has repeatedly made its requirements clear. See generally False, Fraudulent, or Unauthorized Use of the Emergency Alert System or Wireless Emergency Alert Codes or Attention Signals is Strictly Prohibited, Public Notice, 34 FCC Rcd 7041 (EB 2019) (Enforcement Advisory promoting understanding of the regulations governing the appropriate use of EAS Tones); Viacom/ESPN FO, 30 FCC Rcd at 797, paras. 1-2 (affirming findings that Viacom and ESPN committed violations of the Commission’s rules by transmitting or causing transmission of EAS Tones in a promotional announcement for the movie, “Olympus Has Fallen,” on cable networks); 2013 EAS Enforcement Advisory, supra note 3, at 15438 (promoting understanding of the laws governing appropriate use of EAS Tones to address concerns about misuse of EAS Tones aired in order to capture audience attention when there is no actual emergency or test).  See also Enforcement Bureau Reminds Emergency Alert System (EAS) Participants of Compliance Obligations, Public Notice, 36 FCC Rcd 44, 47 (EB 2021) (reiterating that failure to comply with the EAS rules may subject a violator to sanctions, including monetary forfeitures).  
  Accordingly, based on our review of the facts and circumstances surrounding these apparent violations of section 11.45(a) of the Commission’s rules, we propose a forfeiture of $146,976 against ESPN.
II. BACKGROUND
A. Legal Framework
5. Pursuant to section 503(b)(1) of the Communications Act of 1934, as amended (Act), 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. 47 U.S.C. § 503(b)(1)(B); see also 47 CFR § 1.80(a)(2).  
  Section 312(f)(1) of the Act defines willful as “the conscious and deliberate commission or omission of such act, irrespective of any intent to violate” the law. 47 U.S.C. § 312(f)(1).
  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, H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) (“This provision [inserted in section 312] defines the terms ‘willful’ and ‘repeated’ for purposes of section 312, and for any other relevant section of the act (e.g., [s]ection 503)   . . . .  As defined[,] . . . .‘willful’ means that the licensee knew that he was doing the act in question, regardless of whether there was an intent to violate the law.  ‘Repeated’ means more than once, or where the act is continuous, for more than one day.  Whether an act is considered to be ‘continuous’ would depend upon the circumstances in each case.  The definitions are intended primarily to clarify the language in [s]ections 312 and 503, and are consistent with the Commission’s application of those terms . . . .”).
 and the Commission has so interpreted the term in the section 503(b) context. See, e.g., Southern California Broad. Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (1991), recon. denied, Memorandum Opinion and Order, 7 FCC Rcd 3454 (1992).
  In order to impose such a penalty, the Commission must issue a notice of apparent liability, the notice must be received, and the person against whom the notice has been issued must have an opportunity to show, in writing, why no such penalty should be imposed. 47 U.S.C. § 503(b)(4); 47 CFR § 1.80(g).
  The Commission will then issue a forfeiture if it finds, by a preponderance of the evidence, that the person has willfully or repeatedly violated the Act or a Commission rule. See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7591, para. 4 (2002) (forfeiture paid).

6. Under section 11.45(a) of the Commission’s rules, “[n]o person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS; or as specified in [sections] 10.520(d), 11.46, and 11.61 of this chapter.” 47 CFR § 11.45(a).  Section 11.46 of the Commission’s rules provides that “EAS Participants may use the EAS Attention Signal and a simulation of the EAS codes as provided by FEMA in EAS Public Service Announcements (PSAs) (including commercially-sponsored announcements, infomercials, or programs) provided by federal, state, and local government entities, or non-governmental organizations, to raise public awareness about emergency alerting.”  Id. § 11.46.  Section 11.61 of the Commission’s rules provides that “EAS Participants shall conduct tests [of EAS procedures] at regular intervals . . . .”  Id. § 11.61(a).  See also Viacom/ESPN FO, supra note 6, at 799-800, para. 8 (explaining that section 11.45 of the Commission’s rules “applies broadly to ‘persons’ and does not exclude cable programmers.  Likewise, it explicitly applies to actions that ‘transmit or cause to transmit’ the restricted EAS Tones, and is not limited to direct transmissions by or to a particular person or entity.”).  
  The Commission adopted section 11.45 in 1994 to protect the integrity and operation of the EAS, See Amendment of Part 73, Subpart G, of the Commission’s Rules Regarding the Emergency Broadcast System, FO Docket Nos. 91–301 and 91–171, Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, 7 FCC Rcd 6903, 6907, para. 39 (1992).
 acknowledging that while existing laws prohibited false distress signals and broadcast hoaxes, “a specific prohibition against the misuse of the EAS attention signal and codes is necessary . . . because it is more specific and directly addresses the proper use of EAS codes and Tones.” Amendment of Part 73, Subpart G, of the Commission’s Rules Regarding the Emergency Broadcast System, FO Docket Nos. 91–301 and 91–171, Report and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 1786, 1815, para. 84 (1994).  In enforcing section 11.45 of the Commission’s rules, the Commission explained:
The plain language of the rule prohibits any transmission of the EAS Tones in the absence of an actual emergency or authorized test . . . . Moreover, [s]ection 11.45 contains no provision limiting liability under the rule to cases where intent to deceive exists, nor does the rule make exceptions for, or protect, ‘dramatic’ uses of the EAS Tones.  Instead, the rule provides that the transmission of the EAS Tones is prohibited in ‘any circumstance’ except when an actual emergency or authorized test warrants their use.  
Viacom/ESPN FO, supra note 6, at 801-02, para. 12.
  
B. Factual Background
7. ESPN, based in Bristol, Connecticut, is a multimedia sports entertainment company that nationally distributes television programming. LOI Response, supra note 8, at 1, Response to Question 1.  ESPN also holds Commission-issued wireless and satellite authorizations.  See id. at 1, Response to Question 2, Exh. A – List of FCC Registration Numbers (“FRNs”) and FCC Authorizations.
  ESPN Holding Company, Inc., an indirect subsidiary of The Walt Disney Company, owns 80% of ESPN, and Hearst Brazil, Inc., a subsidiary of The Hearst Corporation, owns the remaining 20%. Id. at 1, Response to Question 1.
  The Promo Spot is a promotional segment concerning the start of the 2023-24 NBA season. Id. at 2, Response to Question 3(a).
  ESPN included the Promo Spot on its nationally distributed cable networks, the ESPN network (ESPN Network), and its companion network, ESPN 2, which are widely carried by cable systems and other multichannel video programming distribution systems (MVPDs) throughout the United States. Id. at 2, Responses to Questions 3(b)-(c).

8. On October 20, 2023, the Commission received complaints alleging that ESPN transmitted the EAS Tones, or a simulation thereof, multiple times, including on October 20, 2023,  during a sports-related promotion. See Complaint No. 6531140 (Oct. 20, 2023) (on file in EB-IHD-23-00035802); Complaint No. 6531910 (Oct. 20, 2023) (on file in EB-IHD-23-00035802) (together Complaints).
  The Enforcement Bureau’s Investigations and Hearings Division issued a letter of inquiry (LOI) on January 10, 2024, directing ESPN to submit, among other things, recordings of the complained-of programming and sworn written statements as to whether it had transmitted, or caused the transmission of, the EAS Tones. See Letter of Inquiry from Patrick M. McGrath, Chief, Investigations and Hearings Division, FCC Enforcement Bureau, to James Pitaro, Chairman, ESPN, The Walt Disney Company, Nell DeVane, Chief Counsel, ESPN, and Susan Fox, Senior Vice President, The Walt Disney Company (Jan. 10, 2024) (on file in EB-IHD-23-00035802) (LOI).
  ESPN provided a video recording of the October 20, 2023, October 23, 2023, and October 24, 2023 airings of the Promo Spot. See LOI Response, supra note 8, at 1.  See also id. at Exh. B - Transcript of Programming (Promo Spot).

9. In its LOI Response, ESPN admits that it developed, produced, and transmitted the subject programming. See, e.g., id. at 1, Response to Question 2 n.3.
  ESPN further admits that “[f]or each Transmission, ESPN Transmitted or caused to be Transmitted a portion of the EAS Attention Signals as part of the Promo Spot.” Id. at 3, Response to Question 4.  Throughout the LOI Response, ESPN refers to its transmission of “EAS Attention Signals” with respect to its transmissions of the Promo Spot.  We find those transmissions to be EAS codes, not an EAS Attention Signal as defined in 47 CFR § 11.31.    
  ESPN notes that the Promo Spot was “accompanied by a brief, less than two second excerpt of the EAS Attention Signals, immediately followed by a . . . voiceover of a man who states, in an exaggerated, stentorian tone, that ‘we interrupt our program to bring you this important message.’” Id. at 4, Response to Question 6.  See supra note 27.
  ESPN believes that “the brief portion of the EAS Attention Signals included in the Promo Spot [was] an excerpt of the EAS header tone” and did “not include other elements of the EAS Attention Signals, such as the dual-tone attention signal.” Id. at 4, Response to Question 7.  See supra note 27.
  ESPN further admits that for the Promo Spot airings, ESPN did not transmit or cause to be transmitted a portion of the EAS Tones in connection with any Permitted Use, i.e., an actual emergency, authorized test of the EAS, or qualified PSA. See id. at 3-4, Responses to Questions 5, 5(a), 5(c).  ESPN has no knowledge that any emergency response was made by federal, state, or local law enforcement or other public health and safety authorities concomitant with or as a result of its transmissions, and whether such transmissions triggered any other EAS alert notifications to issue.  Id. at 4, Response to Question 5(b).  According to ESPN, it would have been “highly unlikely.”  Id.  ESPN notes that EAS hardware “does not process incomplete EAS tones of such short duration” and “the excerpt was sourced from what appears to be an analog-era simulation or recording of the retired Emergency Broadcast System (EBS) alerting tone.”  Id. 
  ESPN acknowledges that it transmitted the Promo Spot a total of six times during October 20-24, 2023, on two ESPN-owned networks. Specifically, ESPN transmitted the Promo Spot two times on October 20, 2023 on the ESPN Network, one time on October 23, 2023 on the ESPN Network, one time on October 23, 2023 on ESPN 2, and two times on October 24, 2023 on ESPN 2.  Id. at 2, Response to Question 3(b).  The Promo Spot was also posted to an ESPN YouTube Account and a personal LinkedIn account.  See id. at 8, Response to Question 14.
 
10. ESPN admits that ESPN producers “likely . . . obtained the portion of the EAS Attention Signal recordings from a publicly available YouTube video,” Id. at 5, Response to Question 9(a).  See supra note 27.
 and that its producers, and potentially other ESPN production staff, reviewed the Promo Spot before its initial transmission in 2023. Id. at 6, Response to Question 9(c).
  ESPN indicates that it was aware that the Promo Spot was transmitted to the public at approximately the time it was transmitted. Id. at 5, Response to Question 8(a).
  After the initial airings, ESPN believes that “some members of the production team may have discussed the presence of the excerpt of the EAS Attention Signals in the Promo Spot, but they apparently did not comprehend that its use was prohibited.” Id. at 8, Response to Question 13.  See supra note 27.
  ESPN notes that it “is taking this opportunity to revisit its internal review processes and reeducate its personnel” regarding the FCC’s EAS rules. See id. at 8, Responses to Question 13, 15.

III. DISCUSSION
11. We find that ESPN apparently willfully and repeatedly violated section 11.45(a) of the Commission’s rules.  ESPN confirms that the six airings of the Promo Spot, twice each day on October 20, 2023, October 23, 2023, and October 24, 2023, included a portion of the EAS Tones. See id. at 2-4, Responses to Questions 3(b), at 3-4, 6-7.  Throughout the LOI Response, ESPN refers to its transmission of “EAS Attention Signals” with respect to its transmissions of the Promo Spot.  We find those transmissions to be EAS codes, not an EAS Attention Signal.  Section 11.45(a) of the Commission’s rules applies to “…the EAS codes or Attention Signal, or a recording or simulation thereof….”  47 CFR § 11.45(a).  As such, improper transmission of the EAS codes or Attention Signal may violate section 11.45(a) of the Commission’s rules.      
  ESPN admits that it and its employees or agents created and transmitted the Promo Spot with a portion of the EAS Tones, and that the Promo Spot was aired on its owned networks which are widely carried by cable systems and other MVPDs nationwide. See id. at 1-3, 6, Responses to Questions 2, n.3, 3, 3(b)-(d), 4, 9(d).  See supra note 37.  ESPN holds Commission-issued wireless and satellite authorizations.  See id. at 1, Response to Question 2, Exh. A – List of FCC Registration Numbers (“FRNs”) and FCC Authorizations.  As a Commission regulatee, ESPN is responsible for the acts of its employees and agents.  See, e.g., Eure Family Ltd. P’ship, Memorandum Opinion and Order, 17 FCC Rcd 21861, 21863-64, para. 7 (2002) (“[L]icensees and other Commission regulatees are responsible for the acts and omissions of their employees and independent contractors.”).   
  We find ESPN responsible for transmitting the Promo Spot with the EAS codes a total of six times on its networks.  ESPN also admits that none of the material in question was transmitted in connection with an actual national, state, or local emergency, authorized test, or qualified PSA. LOI Response, supra note 8, at 3-4, Responses to Questions 5, 5(a), 5(c). 
  Accordingly, we find six apparent violations of section 11.45(a) of the Commission’s rules by ESPN.
12. Despite being shorter in duration than the full EAS Tones, See id. at 4, Response to Question 6.
 the approximate two-second portion of the EAS Tones used in the Promo Spot were recognizable by viewers or listeners as substantially similar to the EAS Tones. See Complaints, supra note 23 (one Complaint stating that ESPN aired promo spot that “included a simulated EAS alert tone followed by a fake emergency notice” and another Complaint stating that commercial on ESPN “is using part of the EAS sound”).  See also Fox NAL, supra note 2, at *2, para. 4, *3, para. 9, *4, para. 12 (finding that FOX apparently willfully violated section 11.45(a) of the Commission’s rules when it transmitted or caused the transmission of EAS tones – an approximately three-second excerpt of the EAS Attention Signal – during a FOX NFL promotional segment in the absence of any actual emergency, authorized test of the EAS, qualified PSA, or other Permitted Uses); CBS NAL, supra note 2, at 8424, para. 17 (finding that CBS improperly used a “modified” version of the EAS codes and Attention Signal that, despite being softer in volume and shorter in duration at approximately three seconds, nonetheless possessed the same characteristics as the actual EAS tones, and was recognizable by viewers or listeners as substantially similar to the EAS tones); ESPN, Inc., Notice of Apparent Liability for Forfeiture, 36 FCC Rcd 12382, 12386-87, paras. 10-12 (EB 2021) (finding that ESPN apparently willfully violated section 11.45 of the Commission’s rules when it transmitted programming including a portion of the EAS tones lasting a total of 1.83 seconds in the absence of Permitted Uses) (forfeiture paid) (ESPN NAL).
  The Promo Spot’s voiceover “in an exaggerated, stentorian tone,” LOI Response, supra note 8, at 4, Response to Question 6.
 also did not alter or neutralize its overall effect of falsely warning listeners and viewers of a non-existent emergency, as the portion of the EAS Tones was clearly audible, cognizable, and appropriated for a non-emergency use. See Fox NAL, supra note 2, at *4, para. 12; CBS NAL, supra note 2, at 8425-26, paras. 19-21.
  This manner of appropriation of the EAS Tones falls squarely within the type of simulation that the Commission’s rules seek to address and prohibit in order to avoid diluting the EAS Tones’ real meaning over time. See Fox NAL, supra note 2, at *4, para. 12 (finding manner of appropriation of the approximate three-second EAS tone used in the promotional segment is exactly the type of simulation that the Commission’s rules seek to address and prohibit in order to avoid diluting the EAS tones’ real meaning over time); CBS NAL, supra note 2, at 8425-26, paras. 19-22 (concluding that the sounds – including the shortened approximate three second Attention Signal – that CBS used in Young Sheldon simulated the actual EAS tones – exactly the type of simulation that the Commission’s rules seek to address).

IV. PROPOSED FORFEITURE
13. Section 503(b) of the Act authorizes the Commission to impose a forfeiture against any entity that “willfully or repeatedly fail[s] to comply with . . . any rule, regulation, or order issued by the Commission . . . .” 47 U.S.C. § 503(b)(1)(B). 
  Section 503(b)(2)(D) of the Act and section 1.80(b)(10) of the Commission’s rules authorize us to assess a forfeiture against ESPN as a Commission regulatee ESPN holds Commission-issued wireless and satellite authorizations.  See LOI Response, supra note 8, at 1, Response to Question 2, Exh. A – List of FCC Registration Numbers (“FRNs”) and FCC Authorizations.  
 of up to $24,496 per violation or for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $183,718 for a single act or failure to act. 47 U.S.C. § 503(b)(2)(D); 47 CFR § 1.80(b)(10) (setting the current inflation adjusted statutory maximum forfeiture penalty for a violation under 47 U.S.C. § 503(b)(2)(D) at $24,496 per violation or for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $183,718 for a single act or failure to act).  See Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of Civil Monetary Penalties to Reflect Inflation, Order, DA 23-1198, 2023 WL 8889597, at *6 (EB Dec. 22, 2023); see also Annual Adjustment of Civil Monetary Penalties to Reflect Inflation, 89 Fed. Reg. 2148, 2148 (Jan. 12, 2024) (setting January 15, 2024 as the effective date for the increases).
  In exercising our forfeiture authority, we must consider 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. 47 U.S.C. § 503(b)(2)(E); 47 CFR § 1.80(b)(11).  
  The Commission has established forfeiture guidelines, base penalties for certain violations, and has identified criteria that it considers when determining the appropriate penalty in any given case. 47 CFR § 1.80(b)(11), Table 3. 
  Under these guidelines, we may adjust a forfeiture downward for violations that are minor, good faith or voluntary disclosure of violations, where there is a history of compliance, or where there is an inability to pay. Id. 
  We may adjust a forfeiture upward for violations that are egregious, intentional, repeated, that cause substantial harm or generate substantial economic gain for the violator, where there is an ability to pay, or where there is a history of prior violations of FCC requirements. Id.  
  
14. Section 1.80(b) of the Commission’s rules provides for a base forfeiture of $8,000 for various EAS and false distress rule violations, for each violation or each day of a continuing violation. Id. § 1.80(b)(11), Table 1.
  The Commission has previously applied an $8,000 base forfeiture for violations of section 11.45(a) of the Commission’s rules. See, e.g., CBS NAL, supra note 2, at 8431, para. 36.
  We have discretion, however, to depart from the base forfeiture guidelines, taking into account the particular facts of each individual case. The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087, 17098-99, para. 22 (1997) (noting that “[a]lthough we have adopted the base forfeiture amounts as guidelines to provide a measure of predictability to the forfeiture process, we retain our discretion to depart from the guidelines and issue forfeitures on a case-by-case basis, under our general forfeiture authority contained in Section 503 of the Act.”) (Forfeiture Policy Statement), recon. denied, Memorandum Opinion and Order, 15 FCC Rcd 303 (1999).
  In determining the proposed forfeiture amount, we considered the factors outlined in section 503 of the Act, section 1.80 of the Commission’s rules, and  the Commission’s Forfeiture Policy Statement.  We have considered the number of transmissions at issue, ESPN’s sizeable nationwide audience reach, the gravity of the apparent violations, the violator’s degree of culpability, ability to pay, and the serious public safety implications of the apparent violations, as well as the other factors outlined in section 1.80 of the Commission’s rules and the Commission’s Forfeiture Policy Statement. 
15. The nature of EAS violations requires particularly serious consideration because, among other issues, such violations undermine the integrity of the EAS by desensitizing the public to the potential importance of warning tones.  EAS violations therefore implicate substantial public safety concerns.  As explained in the Fox NAL, our forfeiture determination in such cases is based on multiple factors associated with the nature of the violation and the violator. See Fox NAL, supra note 2, at *5, para. 15.
  When applying the statutory factors concerning the circumstances, extent, and gravity of an EAS violation, we take into account a number of specific factors, including:  (1) the number of repetitions (i.e., the number of individual transmissions); (2) the duration of the violation (i.e., the number of days or months over which the violation occurred); (3) the audience reach of the transmissions (e.g., nationwide, regional, or local); and (4) the extent of the public safety impact (e.g., whether an EAS activation is triggered). See id.
  While each of these factors may be significant in a given case, no single factor (e.g., the number of transmissions) is controlling. 
16. In this case, we find ESPN responsible for transmitting the EAS codes during the Promo Spot over two of its networks a total of six times, resulting in a base forfeiture of $48,000.  Furthermore,  reviewing the factors in this case, we find that an upward adjustment is warranted.  As detailed above, ESPN apparently committed multiple violations over three days on its networks—the ESPN Network and ESPN 2—both of which are distributed to most cable systems and other MVPDs in the United States. LOI Response, supra note 8, at 2, Response to Question 3(c).
  More than 55 million subscribers to cable systems and other MVPDs have access to the ESPN Network and ESPN 2 via their respective cable system or other MVPD provider. Id. (referring to approximately 55.6 million subscribers).  This figure represents the approximate number of Nielsen-estimated subscribers that have access to the ESPN network and ESPN 2 through cable systems and other MVPDs.  Id. at 2, Response to Question 3(c), n.4.  ESPN’s parent company The Walt Disney Company stated in a recent annual report that ESPN has approximately 71 million subscribers, as estimated by Nielsen Media Research as of September 2023.  The Walt Disney Company, Annual Report at 10 (Form 10-K) (Nov. 21, 2023), https://www.sec.gov/ix?doc=/Archives/edgar/data/1744489/000174448923000216/dis-20230930.htm (last visited June 28, 2024) (Walt Disney 2023 Annual Report).  The approximate 71 million subscriber estimate includes “traditional” multichannel video programming distribution systems and the majority of digital “OTT” subscriber counts.  Walt Disney 2023 Annual Report at 10.  “OTT” is a digital over-the-top (OTT) service that includes live linear streams of cable networks and the major broadcast networks.  Walt Disney 2023 Annual Report at 3.
  The fact that ESPN’s programming reached such potentially vast audiences greatly increases the extent and gravity of the instant repeated apparent violations.  Moreover, the creation and transmissions of the Promo Spot involved a self-promotion by ESPN for its upcoming 2023-24 NBA season programming, which began on October 25, 2023, See LOI Response, supra note 8, at 1, Exh. B - Transcript of Programming (Promo Spot), Ronce Rajan, ESPN & ABC’s Blockbuster Broadcast Schedule for 2023-24 NBA Regular Season (Aug. 17, 2023), https://espnpressroom.com/us/press-releases/2023/08/espn-abcs-blockbuster-broadcast-schedule-for-2023-24-nba-regular-season/. 
 shortly after the Promo Spot aired. See LOI Response, supra note 8, at 2, Response to Question 3(b) (stating that the Promo Spot aired on Oct. 20, 2023, Oct. 23, 2023, and Oct. 24, 2023).
  According to ESPN, the Promo Spot is known as the “NBA Is Back Tease,” Id. at 2, Response to Question 3.
 a promotional segment (commonly known as a “promo tease” in the media sector) concerning the start of the 2023-24 NBA season Id. at 2, Response to Question 3(a).
 that appeared in or adjacent to programs “First Take,” “NBA Today,” and “Sports Center.” Id. at 2, Response to Question 3(b).
  We find that this self-promotion for the purposes of additional economic gain The Walt Disney Company reported a total quarterly revenue of $23.5 billion for October 1 - December 30, 2023, including domestic ESPN’s approximate $4 billion in revenue, which encompassed the dates this Promo Spot aired.  See, e.g., Business Wire, The Walt Disney Company Reports First Quarter Earnings for Fiscal 2024 (Feb. 7, 2024), https://www.businesswire.com/news/home/20240207673292/en/The-Walt-Disney-Company-Reports-First-Quarter-Earnings-for-Fiscal-2024.  See also Michael McCarthy, ESPN’s Financial Success Raises Questions About Cost-Cutting and Layoffs (Nov. 13, 2023), https://frontofficesports.com/espns-financial-success-raises-questions-about-cost-cutting-and-layoffs/.  
 at the expense of the integrity of the EAS constitutes egregious misconduct warranting an upward adjustment.
17. In calculating the appropriate forfeiture, we also consider ESPN’s past compliance record.  ESPN has a history of noncompliance with respect to section 11.45 of the Commission’s rules.  In 2015, ESPN paid a $280,000 forfeiture for violations of section 325(a) of the Act and section 11.45 of the Commission’s rules when it transmitted EAS Tones in the absence of a Permitted Use. See Viacom/ESPN FO, supra note 6, at 797, paras. 1-2 (affirming $280,000 forfeiture against ESPN, Inc. for violations of the laws that prohibit misuse of tones reserved for the EAS).
  Once again in 2021, ESPN paid a $20,000 forfeiture for violation of section 11.45 of the Commission’s rules when it transmitted EAS Tones in the absence of a Permitted Use. See ESPN NAL, supra note 43, at 12382-83, paras. 1-4 (finding that ESPN, Inc. apparently willfully violated section 11.45 of the Commission’s rules when it transmitted or caused the transmission of EAS Tones in the program “30 for 30: Roll Tide/War Eagle,” which was included in ESPN, Inc.’s programming stream sent to cable systems and other MVPDs in the absence of a Permitted Use).
  We find ESPN’s prior history of EAS violations to be a significant factor to consider in determining the proposed forfeiture in this case. See, e.g., Turner Broad. System, Inc., Notice of Apparent Liability for Forfeiture, 29 FCC Rcd 752, 758, para. 16 (2014) (finding a higher degree of culpability due to a previous experience with misusing the EAS Tones) (forfeiture paid).
  
18. Under section 503(b)(2)(E) of the Act, and as codified in section 1.80(b)(11) of our rules, we must take into account a target’s ability to pay a forfeiture. 47 U.S.C. § 503(b)(2)(E); 47 CFR § 1.80(b)(11); see Forfeiture Policy Statement, supra note 54,at 17099-17100, paras. 23-24 (cautioning all entities and individuals that the Commission will take into account the violator’s ability to pay in determining a forfeiture to guarantee that large or highly profitable entities do not consider forfeitures merely an affordable cost of doing business, and noting that such entities should expect proposed forfeitures against them to be well above the applicable base amount); ASUSTeK Computer Inc., Notice of Apparent Liability for Forfeiture, FCC 24-69, 2024 WL 3054117 at *7, para. 25 (June 14, 2024) (explaining that the significant upward adjustment for ability to pay “is warranted to ensure that the proposed forfeiture is an effective deterrent and not simply internalized by [the company] as a cost of doing business”) (forfeiture paid); Viacom/ESPN FO, supra note 6, at 806, para. 22 (noting that an upward adjustment is appropriate in light of Viacom’s reported annual revenues and the revenues of ESPN’s parent); SBC Communications, Inc., Order on Review, 17 FCC Rcd 4043, 4052, para. 20 (2002) (“[A] large and highly profitable company . . . should expect . . . that the forfeiture amount” may “be above, or even well above, the relevant base amount”).
  With respect to ESPN’s ability to pay, The Walt Disney Company reported a substantial total revenue of $22.1 billion, including ESPN’s approximate $3.8 billion in domestic revenue, for a recent quarter. The Walt Disney Company reported a total quarterly revenue of $22.1 billion for January 1 - March 30, 2024, including domestic ESPN’s approximate $3.8 billion in revenue.  See, e.g., Business Wire, The Walt Disney Company Reports Second Quarter and Six Months Earnings for Fiscal 2024 (May 7, 2024), https://www.businesswire.com/news/home/20240507742924/en/The-Walt-Disney-Company-Reports-Second-Quarter-and-Six-Months-Earnings-for-Fiscal-2024.  
  ESPN clearly has an ability to pay.  A significant upward adjustment of the base forfeiture amount is warranted to ensure that the proposed forfeiture is an effective deterrent and not simply internalized by ESPN as a cost of doing business. See, e.g., Forfeiture Policy Statement, supra note 54, at 17098, para. 20 (1997) (recognizing the relevance of creating the appropriate deterrent effect in choosing a forfeiture); see also 47 CFR § 1.80(b)(11), Table to paragraph (b)(11) (identifying adjustment criteria for section 503 forfeitures).
  
19. Given the totality of the circumstances, and consistent with the statutory factors, section 1.80 of the Commission’s rules, and the Commission’s Forfeiture Policy Statement, we conclude that a proposed forfeiture of $146,976, the applicable statutory maximum amount for six apparent violations, $146,976 equals $24,496, the current applicable statutory maximum forfeiture penalty, multiplied by six for each apparent violation.  See 47 U.S.C. § 503(b)(2)(D); 47 CFR § 1.80(b)(10) (setting the current inflation adjusted statutory maximum forfeiture penalty for a violation under 47 U.S.C. § 503(b)(2)(D) at $24,496 per violation or for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $183,718 for a single act or failure to act).  See also supra note 49.
 is appropriate in this case for ESPN’s apparent egregious repeated violations of section 11.45(a) of the Commission’s rules.  
20. We find no basis for a downward adjustment. 47 CFR § 1.80(b)(11), Table 3 (downward adjustment factors include minor violations, good faith or voluntary disclosure, history of overall compliance, and inability to pay).
  First, this was not a minor violation.  ESPN had clear and unambiguous notice of the requirements and applicability of the EAS rules to its advertising programming. See, e.g., Viacom/ESPN NAL, supra note 6, at 2558-59, para. 23; Viacom/ESPN FO, supra note 6, at 797, paras. 1-2 (affirming findings that Viacom and ESPN, Inc. committed violations of the Commission's rules by transmitting or causing transmission of EAS Tones in a promotional announcement for the movie, “Olympus Has Fallen,” on cable networks).
  ESPN’s advertising guidelines clearly prohibited the use of EAS Tones, or simulation thereof, in advertisements “[u]nder no circumstances.” LOI Response, supra note 8, at Exh. C – Policy Documents on Improper Use of EAS Tones, ESPN Advertising Standards & Guidelines (2019).
  ESPN touts that such policy was purportedly “generally…made known to employees of ESPN and to others, including…members of ESPN’s production teams.” Id. at 7, Response to Question 11(b).
  However, ESPN admits that ESPN producers and potentially other ESPN production staff reviewed the Promo Spot before its initial transmission, Id. at 6, Response to Question 9(c).
 and “some members of the production team may have discussed the presence of the excerpt of the EAS Attention Signals in the Promo Spot, but they apparently did not comprehend that its use was prohibited.” Id. at 8, Response to Question 13.  See supra note 27.
  
21. Second, this case did not involve voluntary disclosure or good faith compliance efforts before the LOI was issued in this case.  Even though ESPN was aware that the Promo Spot was transmitted to the public at approximately the time it was transmitted, Id. at 5, Response to Question 8(a).
 ESPN did not disclose it to the Commission until required to do so in its LOI Response. See LOI, supra note 24, at 1-2 (directing ESPN, Inc. and The Walt Disney Company to provide the information requested therein concerning the Complaints).
  Thus the disclosure in the LOI Response does not constitute the type of good faith disclosure that warrants a reduction to the proposed forfeiture amount. See, e.g., Fox NAL, supra note 2, at *6, para. 20 (finding that required notification to the FCC under section 11.45(b) of the Commission’s rules does not constitute the type of good faith disclosure that warrants a reduction to the proposed forfeiture amount).
  Additionally, while ESPN may have taken corrective action to stop transmitting the Promo Spot on October 24, 2023, See LOI Response, supra note 8, at 2, Response to Question 3(b).  
 corrective action taken in compliance with Commission rules is expected, and does not nullify or mitigate any prior forfeitures or violations. See, e.g., Viacom/ESPN FO, supra note 6, at 806, para. 23 (declaring that “...it is well settled precedent that subsequent remedial actions do not excuse or nullify a licensee’s violation of a Commission rule.”); Radio License Holding XI, LLC, Forfeiture Order, 29 FCC Rcd 1623,1629-30, para. 15 (2014) (declining to reduce a per-broadcast forfeiture even when the licensee took certain corrective action prior to receiving the Bureau’s letter of inquiry, but did not also notify listeners of the violative announcements and did not voluntarily disclose its conduct to the Commission); Exec. Broad. Corp., Memorandum Opinion and Order, 3 FCC 2d 699, 700, para. 6 (1966) (“The fact that prompt corrective action was taken ... does not excuse the prior violations.”).
  ESPN explained in its LOI Response that it “is taking this opportunity to revisit its internal review processes and reeducate its personnel regarding” the FCC’s EAS rules. LOI Response, supra note 8, at 8, Response to Question 13.  On January 25, 2024, ESPN’s counsel circulated to ESPN personnel a reminder notice that the improper use of EAS Tones in ESPN content was strictly prohibited.  See id. at Exh. C – Policy Documents on Improper Use of EAS Tones. 
  Those compliance efforts to revisit its processes and reeducate its personnel apparently occurred only after the LOI and do not justify a reduction to the proposed forfeiture amount. Cf. Radio One Licenses, Inc., Memorandum Opinion and Order, 18 FCC Rcd 15964, 15965, para. 4 (2003), recon. denied, 18 FCC Rcd 25481 (2003) (reducing a forfeiture from $9,200 to $8,000 for EAS violations because the licensee had identified the problems and had ordered replacement equipment prior to the Field Office’s on-site inspection). 

22. Third, as described above in paragraph 18, ESPN has been the subject of previous enforcement actions involving EAS violations. See LOI Response, supra note 8, at 10, Response to Question 18.  See Viacom/ESPN FO, supra note 6, at 797, paras. 1-2 (affirming $280,000 forfeiture against ESPN, Inc. for violations of the laws that prohibit misuse of tones reserved for the EAS); ESPN NAL, supra note 43, at 12382-83, paras. 1-4 (finding that ESPN, Inc. apparently willfully violated section 11.45 of the Commission’s rules when it transmitted or caused the transmission of EAS Tones in the program “30 for 30: Roll Tide/War Eagle,” which was included in ESPN, Inc.’s programming stream sent to cable systems and other MVPDs in the absence of a Permitted Use).
  We therefore find no countervailing downward adjustment to be appropriate based on compliance history. See 47 CFR § 1.80(b)(11), Table 3.  See, e.g., Cumulus Radio LLC; Radio License Holding CBC, LLC; Cumulus Licensing LLC; and Radio License Holdings LLC, Forfeiture Order, 36 FCC Rcd 738, 748, para. 27 (2021) (declining to reduce the forfeiture when licensee’s history of overall compliance includes past violations including violation of the exact same Commission rule at issue in this decision).
  
23. Therefore, after applying the statutory factors, section 1.80 of the Commission’s rules, and the Commission’s Forfeiture Policy Statement, we find ESPN apparently liable for a total forfeiture of $146,976.
V. CONCLUSION
24. In view of the foregoing, we determine that ESPN apparently willfully and repeatedly violated section 11.45(a) of the Commission’s rules, 47 CFR § 11.45(a), and propose a total forfeiture of $146,976.
VI. ORDERING CLAUSES
25. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80 of the Commission’s rules, 47 CFR § 1.80, ESPN, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of one hundred and forty six thousand and nine hundred and seventy six dollars ($146,976) for willful and repeated violations of section 11.45(a) of the Commission’s rules, 47 CFR § 11.45(a).
26. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Commission’s rules, 47 CFR § 1.80, within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture, ESPN, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 30 below.
27. In order for ESPN, Inc. to pay the proposed forfeiture, ESPN, Inc. shall notify the Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, at IHDMedia@fcc.gov of its intent to pay, whereupon an invoice will be posted in the Commission’s Registration System (CORES) at https://apps.fcc.gov/cores/userLogin.do.  Upon payment, ESPN, Inc. shall send electronic notification of payment to the Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, at IHDMedia@fcc.gov on the date said payment is made.  Payment of the forfeiture must be made by credit card using CORES at https://apps.fcc.gov/cores/userLogin.do, ACH (Automated Clearing House) debit from a bank account, or by wire transfer from a bank account.  The Commission no longer accepts forfeiture payments by check or money order.  Below are instructions that payors should follow based on the form of payment selected: For questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone at 1-877-480-3201 (option #6).

· Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001.  In the OBI field, enter the FRN(s) captioned above and the letters “FORF”.  In addition, a completed Form 159 FCC Form 159 is accessible at https://www.fcc.gov/licensing-databases/fees/fcc-remittance-advice-form-159.
 or printed CORES form Information completed using the Commission’s Registration System (CORES) does not require the submission of an FCC Form 159.  CORES is accessible at https://apps.fcc.gov/cores/userLogin.do.
 must be faxed to the Federal Communications Commission at 202-418-2843 or e-mailed to RROGWireFaxes@fcc.gov on the same business day the wire transfer is initiated.  Failure to provide all required information in Form 159 or CORES may result in payment not being recognized as having been received.  When completing FCC Form 159 or CORES, enter the Account Number in block number 23A (call sign/other ID), enter the letters “FORF” in block number 24A (payment type code), and enter in block number 11 the FRN(s) captioned above (Payor FRN). Instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. 
  For additional detail and wire transfer instructions, go to https://www.fcc.gov/licensing-databases/fees/wire-transfer.  
· Payment by credit card must be made by using CORES at https://apps.fcc.gov/cores/userLogin.do.  To pay by credit card, log-in using the FCC Username associated to the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Manage Existing FRNs | FRN Financial | Bills & Fees” from the CORES Menu, then select FRN Financial and the view/make payments option next to the FRN.  Select the “Open Bills” tab and find the bill number associated with the NAL Acct. No.  The bill number is the NAL Acct. No. with the first two digits excluded (e.g., NAL 1912345678 would be associated with FCC Bill Number 12345678).  After selecting the bill for payment, choose the “Pay by Credit Card” option.  Please note that there is a $24,999.99 limit on credit card transactions.
· Payment by ACH must be made by using CORES at https://apps.fcc.gov/cores/userLogin.do.  To pay by ACH, log in using the FCC Username associated to the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Manage Existing FRNs | FRN Financial | Bills & Fees” on the CORES Menu, then select FRN Financial and the view/make payments option next to the FRN. Select the “Open Bills” tab and find the bill number associated with the  NAL Acct. No.  The bill number is the NAL Acct. No. with the first two digits excluded (e.g., NAL 1912345678 would be associated with FCC Bill Number 12345678).  Finally, choose the “Pay from Bank Account” option.  Please contact the appropriate financial institution to confirm the correct Routing Number and the correct account number from which payment will be made and verify with that financial institution that the designated account has authorization to accept ACH transactions.
28. Any request for making full payment over time under an installment plan should be sent to:  Chief Financial Officer—Financial Operations, Federal Communications Commission, 45 L Street, NE, Washington, D.C. 20554.  See 47 CFR § 1.1914.  Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
29. The written statement seeking reduction or cancellation of the proposed forfeiture, if any, must include a detailed factual statement supported by appropriate documentation and affidavits pursuant to sections 1.16 and 1.80(g)(3) of the Commission’s rules.  47 CFR §§ 1.16, 1.80(g)(3).  The written statement must be mailed to the Office of the Secretary, Federal Communications Commission, 45 L Street, NE, Washington, D.C. 20554, ATTN:  Enforcement Bureau – Investigations and Hearings Division, and must include the NAL/Account Number referenced in the caption.  The statement must also be e-mailed to the Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission at IHDMedia@fcc.gov.
30. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the petitioner submits the following documentation:  (1) federal tax returns for the past three years; (2) financial statements for the past three years prepared according to generally accepted accounting practices; or (3) some other reliable and objective documentation that accurately reflects the petitioner’s current financial status.  47 U.S.C. § 503(b)(2)(E).  Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation.  Inability to pay, however, is only one of several factors that the Commission will consider in determining the appropriate forfeiture, and we retain the discretion to decline reducing or canceling the forfeiture if other prongs of 47 U.S.C. § 503(b)(2)(E) support that result. See, e.g., Ocean Adrian Hinson, Surry County, North Carolina, Forfeiture Order, 34 FCC Rcd 7619, 7621, para. 9 & n.21 (2019); Vearl Pennington and Michael Williamson, Forfeiture Order, 34 FCC Rcd 770, paras. 18-21 (2019); Fabrice Polynice, Harold Sido and Veronise Sido, North Miami, Florida, Forfeiture Order, 33 FCC Rcd 6852, 6860-62, paras. 21-25 (2018); Adrian Abramovich, Marketing Strategy Leaders, Inc., and Marketing Leaders, Inc., Forfeiture Order, 33 FCC Rcd 4663, 4678-79, paras. 44-45 (2018); Purple Communications, Inc., Forfeiture Order, 30 FCC Rcd 14892, 14903-04, paras. 32-33 (2015); TV Max, Inc., et al., Forfeiture Order, 29 FCC Rcd 8648, 8661, para. 25 (2014).
  
31. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by first class mail and certified mail, return receipt requested, to Maria Kirby, Vice President, Government Relations, The Walt Disney Company, 425 Third Street, SW, Suite 1100, Washington D.C. 20024, to Thomas Carroll, Principal Counsel, ESPN, Inc., ESPN Plaza, Bristol, Connecticut 06010, and to ESPN, Inc.’s attorneys Matthew S. DelNero, Esq. and Jorge Ortiz, Esq., Covington & Burling LLP, One City Center, 850 Tenth Street, NW, Washington, D.C. 20001.

						FEDERAL COMMUNICATIONS COMMISSION




						Marlene H. Dortch
						Secretary
2