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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-594
Wilkins Communications ) NAL/Acct. No. 200332560003
Network, Inc. )
Licensee of AM Radio Station ) FRN 0006-1527-71
KLNG in Council Bluffs, Iowa )
Spartanburg, South Carolina
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 3, 2002
By the Enforcement Bureau, Kansas City Office:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Wilkins Communications Network, Inc.,
licensee of AM radio station KLNG, Council Bluffs, Iowa,
apparently liable for a forfeiture in the amount of three
thousand five hundred dollars ($3,500) for willful violation
of Sections 11.61(a) and 73.3526(e)(6) of the Commission's
Rules (``Rules'').1 Specifically, we find Wilkins
Communications Network, Inc. apparently liable for failing
to transmit EAS tests and for failing to maintain the most
recent requests for political time in the public file.
2. On August 15, 2002, an agent from the FCC
Enforcement Bureau's Kansas City Field Office inspected
radio station KLNG, Council Bluffs, Iowa. The agent
observed that the station's logs showed no record that the
station had transmitted EAS tests since October, 2001. The
station manager and chief operator stated that the station
had run no EAS tests since September 11, 2001. In addition,
the station's public file did not contain the most recent
requests for political time. The station manager stated
that the station had aired political advertising during
· III. DISCUSSION
3. Section 11.61(a) of the Rules requires broadcast
stations to conduct weekly and monthly tests of the EAS.
Section 11.61(b)2 of the Rules requires that entries be made
in the broadcast station records of EAS tests received and
transmitted. At the time of inspection on August 15, 2002,
the KLNG logs contained no indication that required EAS
tests were transmitted since October, 2001. Station
personnel stated that no tests had been transmitted since
September of 2001.3
4. Section 73.3526(e)(6) requires all licensees to
keep a record of requests for broadcast time made by or on
behalf of a candidate for public office, together with an
appropriate notation showing the disposition made by the
licensee of such requests and the charges made, if any, if
the request is granted. All records shall be placed in the
political file as soon as possible and shall be retained for
a period of two years. As soon as possible means
immediately absent unusual circumstances.4 Inspection of
the public file on August 15, 2002, could not locate any
political files for the August, 2002 election even though
the station manager stated that the station had aired
5. Based on the evidence before us, we find that KLNG
willfully5 violated Sections 11.61(a) and 73.3526(e)(6) of
the Commission's Rules by failing to conduct required EAS
tests and failing to maintain copies of requests for
political advertising in the public file. Pursuant to
Section 1.80(b)(4) of the Rules,6 the base forfeiture amount
for violation of public file rules is $10,000 per violation.
The Rules do not establish a base forfeiture amount for
violating the Commission's rules requiring EAS tests.
Therefore, we must determine what an appropriate forfeiture
amount should be for this violation.7 The requirement that
broadcast stations conduct EAS tests is similar in both
nature and severity to other required operational
performance checks identified in the Rules as required
measurements or required monitoring. Section 1.80 of the
Rules sets the base forfeiture amount at $2,000 for failure
to make required measurements or conduct required
monitoring.8 Therefore, we will assess the base forfeiture
for failing to conduct EAS tests in the amount of $2,000.
In assessing the monetary forfeiture amount, we must take
into account the statutory factors set forth in Section
503(b)(2)(D) of the Communications Act of 1934, as amended
(``Act''),9 which include 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 other such matters as justice
may require. Because KLNG's public file was present but
missing a portion of the required items, a downward
adjustment of the base forfeiture amount for this violation
from $10,000 to $1,500 is warranted. Considering the entire
record and applying the factors listed above, this case
warrants a forfeiture of $3,500.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,10 and Sections 0.111, 0.311 and
1.80 of the Rules,11 Wilkins Communications Network, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of three thousand five hundred dollars
($3,500) for willful violation of Sections 11.61(a) and
73.3526(e)(6) of the Rules by failing to transmit EAS tests
and failing to maintain the political file in the public
7. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Wilkins Communications Network, Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. and FRN referenced
above. Request for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivable Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.12
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. referenced above.
10. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the petitioner 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
petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
11. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
12. IT IS FURTHER ORDERED THAT a copy of this NAL shall
be sent by regular mail and Certified Mail Return Receipt
Requested to Wilkins Communications Network, Inc., PO Box
444, Spartanburg, SC 29304.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director, Kansas City
1 47 C.F.R. §§ 11.61(a), 73.3526(e)(6).
2 47 C.F.R. § 11.61(b).
3 On September 18, 2001, the FCC's Enforcement Bureau
released a Public Notice stating that, in response to a
request by the Federal Emergency Management Agency, and in
order to avoid potential public confusion or fear in
connection with the terrorist attacks of September 11, 2001,
the Bureau would not enforce EAS testing requirements from
that date until October 2, 2001. See Public Notice, EAS
Routine Testing, DA 01-2183, (rel. September 18, 2001).
4 See 47 C.F.R. § 73.1943.
5 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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 ....'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
6 47 C.F.R. § 1.80(b)(4).
7 See The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement''), 12
FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
The Forfeiture Policy Statement states that ``... any
omission of a specific rule violation from the ...
[forfeiture guidelines] ... should not signal that the
Commission considers any unlisted violation as nonexistent
or unimportant.'' Forfeiture Policy Statement, 12 FCC Rcd
at 17099. The Commission retains the discretion, moreover,
to depart from the Forfeiture Policy Statement and issue
forfeitures on a case?by?case basis, under its general
forfeiture authority contained in Section 503 of the Act.
847 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
10 47 U.S.C. § 503(b).
11 47 C.F.R. §§ 0.111, 0.311, 1.80.
12 See 47 C.F.R. § 1.1914.