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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Millcreek Broadcasting, L.L.C. )
Licensee of Station KUUU-FM1 ) File No. 99-DV-522
Salt Lake City, Utah )
Facility ID # 86882 )
Licensee of Station KUDD(FM) ) File No. EB-00-DV-302
Roy, Utah )
Facility ID # 33438 )
Licensee of Station KUUU(FM) ) File No. EB-01-DV-062
Tooele, Utah )
Facility ID # 37876 )
) NAL/Acct. No. 200232800008
) FRN 0004-8307-33
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 19,
By the District Director, Denver Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Millcreek Broadcasting, L.L.C., ("Millcreek") licensee of
Utah stations KUUU-FM1 in Salt Lake City, KUDD1 in Roy, KUUU in Tooele,
and KUDD-FM1 in Salt Lake City, apparently willfully violated Sections
11.35(a) and 74.1251 of the Commission's Rules ("Rules")2 by failing to
have operational Emergency Alert System ("EAS") equipment at the main
FM stations KUUU and KUDD and by operating translator station KUUU-FM1
with an unauthorized transmission system at an unauthorized location
and with excessive effective radiated power. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),3
that Millcreek is apparently liable for a forfeiture in the amount of
twenty-two thousand dollars ($22,000).
2. On June 20, 2000, two Denver Office Agents inspected
Millcreeks' co-located full power FM stations KUUU and KUDD and their
respective booster stations KUUU-FM1 and KUDD-FM1. At the time of
inspection, the main transmitters used by stations KUUU and KUDD,
located in the Stansbury Mountains and Promontory Peak, respectively,
were not operational. However, the booster station KUUU-FM1, located
at a manned site on Farnsworth Peak, was operational, as was the
auxiliary antenna facility used for KUDD, located at Ensign Peak. Both
stations were rebroadcasting the programming of their respective main
3. At the time of inspection, EAS equipment, although present at
the co-located facilities for stations KUUU and KUDD, was not installed
or connected so as to be operational. Review of the station log
maintained by KUDD and KUUU revealed that no required weekly test (RWT)
and no required monthly test (RMT) had been received or sent by either
station for the period April 30, 2000, through June 17, 2000. The
station logs contained no annotation indicating EAS equipment failure
or explaining the missed EAS RWTs and RMTs.
4. On March 9 and 12, 2001, the Denver Office issued Notices of
Violation ("NOV") to Millcreek for the FCC rule violations detected at
KUUU and KUDD during the inspection, including, among others, a
violation of Section 11.35 of the Rules for failing to have EAS
equipment installed and operational. On May 2, 2001, Millcreek
responded to the NOV's. Millcreek acknowledged the violation of the
EAS rules and stated that immediately following the FCC inspection the
EAS system for KUUU and KUDD was restored to fully operational status.
In addition, Millcreek reported that procedures have been established
and communicated to station staff to ensure that all appropriate EAS
receive tests and equipment issues are properly logged and that
appropriate entries are entered in the station log indicating reasons
why tests were not received.
5. Denver Office Agents also inspected booster station KUUU-FM1
on June 20, 2000. KUUU-FM1 was authorized at that time to operate with
24 watts transmitter output power and an effective radiated power in
the horizontal plane of 50 watts with the horizontally polarized
antenna and 50 watts with the vertically polarized antenna. In
particular, KUUU-FM1 was authorized to operate using two Scala CA5-
FM/CP/RM directional antennas with major lobe directions of 50 degrees
with 25% power and 135 degrees with 75% power, at a height of radiation
center above ground at six meters on a tower located on the east side
of the main transmitter building at licensed coordinates N40-39-34,
W112-12-06. At the time of inspection on June 20, 2000, KUUU-FM1 was
operating with transmitter output power measured at 285 watts and an
effective radiated power in excess of 142 watts with one vertically
polarized antenna. In particular, KUUU-FM1 was operating using one
NiCom non-directional vertical polarized antenna, similar to Model BKG-
1/P, at a height of radiation center above ground at approximately 14
meters, on a steel pole on the west side of the main building atop
Farnsworth Peak at coordinates of N40-39-35, W112-12-06.
6. Millcreek suspended operation of KUUU-FM1 on the unauthorized
antenna at the unauthorized power level immediately after the FCC
inspection. Operation of KUUU-FM1 was resumed only after the
transmitter was reconnected to the authorized antennas at the
authorized height, effective radiated power and transmitted power
7. On March 5, 2001, the Denver Office issued a Notice of
Violation ("NOV") to Millcreek for station KUUU-FM1's failure at the
time of the inspection to operate in accordance with the technical
parameters of the translator station license, which included operation
with an unauthorized transmitting antenna system, operating at an
unauthorized location and operating with excessive effective radiated
power.4 On May 2, 2001, Millcreek responded to the NOV. Millcreek
acknowledged the violations and stated that a written policy was
developed and distributed to the technical personnel stating that all
future changes to the station's operating plant must be approved in
advance by the station's manager, who will engage as appropriate, the
licensee's consulting engineer to ensure that any alterations to the
station's transmitting equipment comport with the Commission's Rules.
Following the inspection of the booster, Millcreek submitted
applications seeking authority to modify the technical parameters of
the operation and authority to establish the KUUU-FM1 booster facility
as an auxiliary facility.5
8. Section 503(b) of the Act provides that any person who
willfully fails to comply substantially with the terms and conditions
of any license, or willfully 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) has been interpreted to mean simply
that the acts or omissions are committed knowingly.6
9. Commission licensees are responsible for familiarizing
themselves and complying with applicable statutes and Commission Rules
and policies. The Rules provide that every AM and FM broadcast station
is part of the nationwide EAS network and is categorized as a
participating national EAS source unless the station affirmatively
requests authority to not participate.7 The EAS provides the President
and state and local governments with the capability to provide
immediate and emergency communications and information to the general
public.8 State and local area plans identify local primary sources
responsible for coordinating carriage of common emergency messages from
sources such as the National Weather Service or local emergency
10. Section 11.35(a) of the Rules states that "[b]roadcast
stations...are responsible for ensuring that EAS Encoders, EAS Decoders
and Attention Signal generating and receiving equipment used as part of
the EAS are installed so that the monitoring and transmitting functions
are available during the times the stations
and systems are in operation." Millcreek did not have EAS equipment
installed and operational at stations KUUU and KUDD at the time of
inspection. Based on the evidence, we find that Millcreek willfully
violated Section 11.35 of the Rules by failing to have an operational
11. In general, the Rules require stations to operate in
compliance with applicable technical rules and the terms of the station
authorization. Section 74.1251 of the Rules provides that licensees
must formally apply to the FCC and be granted permission by the FCC
before making a change in the transmitting antenna system including the
direction of radiation or directive antenna pattern, a change in the
location of the translator or booster except a move within the same
building or upon the same pole or tower, a change of authorized
effective radiated power and a change in the area being served. At the
time of inspection on June 20, 2000, KUUU-FM1 was operating with an
unauthorized transmitting antenna system installed at an antenna height
exceeding that authorized at a location 1º from its authorized location
with excessive effective radiated power and was serving areas outside
the principal community to be served. Based on the evidence before us,
we find that on June 20, 2000, Millcreek willfully violated Section
74.1251 of the Rules by failing to operate KUUU-FM1 in accordance with
the technical parameters of the booster station's authorization.
12. The base forfeiture amount set by The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"),10 and Section 1.80 of the Commissions Rules,11 for EAS
equipment not installed or operational is $8,000, for use of
unauthorized equipment is $5,000, for exceeding authorized antenna
height is $5,000, for exceeding power limits is $4,000. Application of
the base amount to the noted violations results in a total base
forfeiture amount of $22,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Act,12 which include the nature,
circumstances, extent, and gravity of the violation(s), and with
respect to the violator, the degree of culpability, and history of
prior offenses, ability to pay, and other such matters as justice may
require. The violations for which forfeitures are assessed in this NAL
are the more serious of the numerous violations of the Rules discovered
at the four Millcreek stations at the time of the inspection. Failure
to have EAS equipment installed and operational at both of the main FM
stations serving a significant area of Utah,13 is a serious safety-
related rule violation. The significantly overpowered operation of
booster KUUU-FM1, which resulted in signal coverage far beyond the 60
dbu (1 mV/m) contour of the main FM station, is a serious violation of
the Commission's technical and interference protection rules. Taking
all of the evidence, the statutory factors and the Forfeiture Policy
Statement into consideration, a $22,000 forfeiture is warranted.
IV. ORDERING CLAUSES
13. 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, that Millcreek Broadcasting,
L.L.C., is hereby NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE in
the amount of twenty-two thousand dollars ($22,000) for violations of
Sections 11.35 and 74.1251 of the Rules.14
14. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Millcreek Broadcasting, L.L.C., SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed forfeiture.
15. 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 must include the FCC Registration number (FRN)
and the NAL/Acct. No. referenced in the caption.
16. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and Public
Safety Division, 445 12th Street, S.W., Washington, D.C. 20554, and
must include the NAL/Acct. No. referenced in the caption.
17. 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 submitted.
18. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.15
19. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4290,
Return Receipt Requested, to Millcreek Broadcasting, L.L.C., 980 N.
Michigan Avenue, Suite 1880, Chicago, Illinois 60611, and courtesy
copied to Shainis & Peltzman, Chartered, Attn: Aaron Shainis, 1850 M
Street, NW, Suite 240, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
11 The licensed call signs for stations KUDD and KUDD-FM1 were
changed from KFVR-FM and KFVR-FM1, subsequent to the inspection on June
20, 2000. All references will be made to the current call signs KUDD
2 47 C.F.R. §§ 11.35(a) and 74.1251.
3 47 U.S.C § 503(b).
4 The Denver Office also issued an NOV on March 2, 2001, to
Millcreek for station KUDD-FM1's failure at the time of the inspection
to operate in accordance with the authorized technical parameters.
KUDD-FM1 was operating at the time of the inspection with only one of
the two antennas specified in the authorization.
5 See File No. BPFTB-20000626AFE, application for authority to
use a non-directional antenna system, granted December 20, 2000 by File
No. BLFTB-20000928APN. See also File No. BXPH-20000626AFF, application
for construction permit for auxiliary facility, granted September 27,
2000, and File No. BXLH-20010315AAE, license application to cover
construction permit of auxiliary facility.
6 Section 312(f)(1) of the Act, 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., 6 FCC Rcd 4387 (1991).
7 47 C.F.R. §§ 11.11 and 11.41.
8 47 C.F.R. §§ 11.1 and 11.21.
9 47 C.F.R. § 11.18. State EAS plans contain guidelines that must
be followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and
local emergency alerts. The state plans include the EAS header codes
and messages to be transmitted by the primary state, local and relay
10 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
11 47 C.F.R. § 1.80.
12 47 U.S.C. § 503(b)(2)(D).
13 KUDD and KUUU both operate under the Wasatch Front Operational
EAS Area under the State of Utah EAS plan. KUUU serves the Salt Lake
City region and KUDD serves the Ogden region in Utah.
14 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35 and
15 See 47 C.F.R. § 1.1914.