$// NAL, Station KQQK(FM)(Galveston, TX), DA 94-1602 //$ $/ 300.503(b) Forfeitures(Notice of Apparent Liability) /$ $/ 073.1125 Main Studio Rules /$ ///newjob///$///DA 94-1602,12/29/94///$ DA 94-1602 FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 December 23, 1994 IN REPLY REFER TO: 8310-SB 94060488 CERTIFIED MAIL-RETURN RECEIPT REQUESTED Released:January 5, 1995 KQQK, Inc., Licensee Radio Station KQQK (FM), Galveston, TX P.O. Box 2722 Houston, TX 77252 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY for a FORFEITURE pursuant to Section 503(b) of the Communications Act of 1934, as amended, for violation of the Commission's Main Studio Rule, 47 C.F.R.  73.1125. This action is taken under authority delegated to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules. On November 25 and December 20, 1991, personnel of the Commission's Field Operations Bureau (FOB) inspected the facilities of Station KQQK(FM), Galveston, Texas. Subsequent to this investigation, the Commission issued an Official Notice of Violation, finding, in part, that the station was in violation of the Commission's Main Studio Rule. On January 31, 1992, Station KQQK responded to this Notice and on May 16, 1994, a follow-up letter of inquiry was issued. This follow-up letter questioned whether Station KQQK maintained adequate staffing at its main studio. Specifically, this letter requested the names, titles and responsibilities of Station KQQK's main studio personnel. Based upon the information obtained by FOB personnel, and the responses of KQQK, Inc. to the Official Notice of Violation and subsequent letter of inquiry, it appears that Station KQQK has repeatedly been and continues to be in violation of Section 73.1125 of the Commission's Rules. Section 73.1125 of the Commission's Rules requires a broadcast licensee to maintain a main studio within its principal community contour "which has the capability adequately to meet its function . . . of serving the needs and interests of the residents of the station's community of license." Main Studio and Program Origination Rules (Clarification), 3 FCC Rcd 5024, 5026 (1988) ("Main Studio Clarification"). To satisfy this requirement, there must be a "meaningful management and staff presence" at the main studio on a full-time basis during regular business hours. 3 FCC Rcd at 5026; see also Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615 (1991), clarified, 7 FCC Rcd 6800 (1992). Finally, the "station must equip the main studio with production and transmission facilities that meet the applicable standards [and] maintain continuous program transmission capability." Main Studio Clarification, 3 FCC Rcd at 5026. In response to our Notice and inquiry, Station KQQK indicated that it maintains a main studio located on Pelican Island, near Galveston (the "GPI Studio"), with an auxiliary studio at 6006 Bellaire Blvd., Houston, Texas. In support, Station KQQK provides a copy of a December 1, 1989, agreement with Harbor Broadcasting Co., Inc., licensee of Station KGBC(AM), which permits Station KQQK to rent studio space for the "purpose of broadcasts from such studio at such times as KQQK may elect." The agreement specifies that Station KQQK will "pay for a broadcast quality telephone line from such studio" to its transmitter or, alternatively, "establish a microwave link to the transmitter." Finally, the agreement states that Station KQQK will "locate its public file at KGBC" and that KGBC "personnel will be available to answer questions relating to KQQK during regular business hours." According to the agreement, such personnel will be "considered employees of KQQK." Although Station KQQK has provided some evidence that personnel have been located on a full-time basis at the GPI Studio, at least in part for the purposes of staffing Station KQQK, it appears that the station has not maintained a meaningful management presence at the studio. Station KQQK's response to our letter of inquiry points to an August 1, 1991, letter confirming the appointment of Mr. Vandy V. Anderson, President of Harbor Broadcasting Company, as Assistant Station Manager in charge of the GPI Studio. Station KQQK, however, has not provided sufficient evidence to establish that Mr. Anderson did, in fact, hold a managerial position at Station KQQK. Although our May 16, 1994, inquiry specifically asked the licensee to explain in full Mr. Anderson's role in operating Station KQQK and to provide documentation as to his employment status, the licensee did not give any description of Mr. Anderson's duties as Assistant Station Manager. Rather, the licensee only indicated that Mr. Anderson was available to answer questions related to Station KQQK and had "the ability, through the licensee's toll-free number, to contact immediately various KQQK personnel at the auxiliary studio." No indication is given whether Mr. Anderson was authorized to make typical managerial decisions pertaining to facilities, equipment, programming, sales or emergency procedures. See Jones Eastern of the Outer Banks, Inc., clarified, 7 FCC Rcd at 6801. Absent such a showing, we cannot find any confirmation that there was a significant management presence at the GPI studio. Moreover, despite the fact that we asked the licensee to provide the names, titles and responsibilities of Station KQQK's personnel assigned to the GPI studio, Station KQQK makes no showing whatsoever regarding a management presence at the GPI Studio before the August 1, 1991, appointment of Mr. Anderson as Assistant Station Manager. Additionally, Station KQQK has informed the Commission that Mr. Anderson retired in November 1993. His duties were apparently assumed by Mr. Steven Cowan, the new General Manager of Station KGBC, but, by the licensee's own admission, Mr. Cowan has not been formally appointed as Assistant Station Manager for Station KQQK, nor has the station provided any evidence that Mr. Cowan is authorized to make managerial decisions. It appears that from at least April 17, 1990 (the date its last renewal application was granted), to the present, Station KQQK has repeatedly violated Section 73.1125 of the Commission's Rules by failing to maintain a significant management presence at the main studio location. With respect to this violation, KQQK, Inc., is hereby advised of its apparent liability for a forfeiture of seven thousand five hundred dollars ($7,500). The amount specified was determined after consideration of the factors set forth in Section 503(b)(2) of the Act, taking into account the nature, circumstances, extent and gravity of the violation. In reaching this amount, we reviewed the precedent and compared the seriousness of Station KQQK's main studio violations with those in other main studio cases decided prior to the adoption of the Policy Statement, generally resulting in forfeiture amounts ranging from $5,000 to $10,000. In these cases, the forfeiture amounts were determined prior to the 1989 increase in our forfeiture authority. In Texas Key Broadcasters, Inc., 30 FCC 2d 146 (1971), the licensee was assessed a forfeiture of $5,000 for the relocation of its main studio without authority, a condition which lasted for approximately two years. Similarly, in International Panorama TV, Inc., 52 FCC 2d 258 (1975) a licensee was issued a $5,000 forfeiture for the unauthorized relocation of its main studio for a period of four weeks. In a more recent case, The Dalton Group, Inc., 6 FCC Rcd 646 (1991), the NAL and Forfeiture Order (issued prior to the 1989 increase in our forfeiture authority) imposed a $10,000 forfeiture for main studio, public inspection file, and program origination rule violations. In this case, the evidence indicates, that the licensee has been operating in violation of our main studio rule at least since April 17, 1990 (the date its last renewal application was granted), until the present. Taking into account the length of the violation, as well as the increase in our forfeiture authority, a $7500 forfeiture is warranted. In regard to this forfeiture, you are afforded a period of thirty (30) days from the date of this Notice "to show, in writing, why a forfeiture penalty should not be imposed or pay the forfeiture. Any showing as to why the forfeiture should not be imposed or reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R  1.80(f)(3). Other relevant provisions of Section 1.80 are summarized in the attachment to this Notice. Additionally, because it appears that you are still in violation of the main studio rule, Section 73.1125, you must take immediate remedial measures to bring yourself into compliance. Within thirty (30) days of the date hereof, you must provide documentation to this office outlining the steps you have taken to bring yourself in compliance. Since this is an ongoing violation, you are hereby notified that further similar forfeitures for additional periods of noncompliance may be issued. Sincerely, Roy J. Stewart Chief, Mass Media Bureau Attachments cc: Dennis F. Begley, Esq.