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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
AGM-Nevada, LLC )
Licensee of Station WMV815 ) File Number EB-02-DV-067
Albuquerque, New Mexico )
Facility ID # 25529 ) and
Licensee of Station WMW873 ) File Number EB-02-DV-071
Albuquerque, New Mexico )
Facility ID # 51762 ) and
Licensee of Station KYLZ-FM1 ) File Number EB-02-DV-072
Albuquerque, New Mexico )
Facility ID # 82812 ) NAL/Acct. No. 200232800012
) FRN 0005-7738-90
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 28, 2002
By the District Director, Denver Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that AGM-Nevada, LLC ("AGM"), licensee of booster station KYLZ-
FM1 and studio-transmitter-link (STL) stations WMV815 and WMW873 in
Albuquerque, New Mexico, apparently willfully violated Section
74.1235(e) of the Commission's Rules ("Rules")1 by failing to operate
the booster transmitter within the authorized transmitter power output
("TPO") limits, and apparently willfully and repeatedly violated
Section 74.551(a)(3) of the Rules2 by operating two STL transmitters
from unauthorized locations. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended ("Act"),3 that AGM is
apparently liable for a forfeiture in the amount of twelve thousand
2. On March 26, 2001, the Denver Office received a complaint
that AGM licensed booster stations KLVO-FM1 and KYLZ-FM1 in Albuquerque
were causing interference.
3. On April 17, 2001, a Denver Office Agent inspected the
stations. No interference was found. However, during the inspection
the Agent found that the STL transmitters, WMV815 and WMW873, were
operating from an unauthorized location and that the KYLZ-FM1
transmitter was operating with excessive transmitter output power.
4. The STLs were located at the current studio location at 4125
Carlisle, NE, Albuquerque, New Mexico. The licenses for WMV815 and
WMW873 both listed a transmitter address of 300 San Mateo Avenue.
According to an AGM employee, in approximately December 1998 the AGM
studio and the STL transmitters were moved from 300 San Mateo, NE,
Albuquerque, New Mexico, to the current studio location at 4125
Carlisle, NE, Albuquerque, New Mexico. On June 26, 2002, a record
search of the FCC database showed that the transmitter address for
stations WMV815 and WMW873 had still not been modified.
5. During the inspection on April 17, 2001, station KYLZ-FM1 was
found to be operating with excessive transmitter output power. KYLZ-
FM1 is authorized to operate with a TPO of 1,800 watts. The calculated
TPO was 2,280 watts, or 127% of the authorized TPO. During the
inspection, the director of engineering for AGM reduced the TPO to
1,826 watts, thus within the authorized limits.
6. Section 503(b) of the Act provides that any person who
willfully and repeatedly fails to comply substantially with the terms
and conditions of any license, or willfully and 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.4 The term "willful" as used in Section 503(b) has
been interpreted to mean simply that the acts or omissions are
7. Section 74.551(a)(3) of the Rules states that, "[p]rior
Commission approval, upon appropriate application (FCC Form 313),
therefore, is required for ... A change in the location of the
transmitter or transmitting antenna except when the relocation of the
transmitter is within the same building." AGM failed to modify the
authorizations to indicate the new location for the STL transmitters.
Based on the evidence before us, we find that AGM willfully and
repeatedly violated Section 74.551(a)(3) of the Commission's Rules by
moving and operating the STL transmitters from a location prior to
receipt of the requisite authorization.
8. Section 74.1235(e) of the Rules states that, "In no event
shall a station authorized under this subpart be operated with a
transmitter power output (TPO) in excess of the transmitter certified
rating. A station authorized under this subpart for a TPO that is less
than its transmitter certificated rating shall determine its TPO in
accordance with §73.267 of this chapter and its TPO shall not be more
than 105 percent of the authorized TPO." AGM operated the transmitter
for KYLZ-FM1 at 127% of the authorized TPO. Based on the evidence
before us, we find that AGM willfully violated Section 74.1235(e) of
the Commission's Rules by failing to operate the KYLZ-FM1 within the
authorized TPO limits.
9. 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"),6 and Section 1.80 of the Commission's Rules,7 for
operation at an unauthorized location is $4,000, and for exceeding
power limits is $4,000. In this particular case, the forfeiture amount
for operating at an unauthorized location is assessed for both STLs.
Thus, the total base forfeiture amount is $12,000. 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,8 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. Applying the Forfeiture Policy
Statement and the statutory factors to the instant case, a $12,000
forfeiture is warranted.
IV. ORDERING CLAUSES
10. 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, AGM-Nevada, LCC, is hereby
NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE in the amount of
twelve thousand dollars ($12,000) for violations of Sections
74.551(a)(3) and 74.1235(e) of the Rules.9
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules10 within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, AGM-Nevada, LCC SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. 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.
13. 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.
14. 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.
15. 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. 20554.11
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4276,
Return Receipt Requested and First Class Mail, to AGM-Nevada, LCC, P.
O. Box 2700, Bakersfield, CA 93303.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
1 47 C.F.R § 74.1235(e).
2 47 C.F.R § 74.551(a)(3).
33 47 U.S.C. § 503(b).
4 47 U.S.C. § 503(b)(2)(D).
5 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). Section 312(f)(2), which also
applies to Section 503(b), provides: "[t]he term 'repeated', when used
with reference to the commission or omission of any act, means the
commission or omission of such act more than once or, if such
commission or omission is continuous, for more than one day."
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80,
74.551(a)(3) and 74.1235(e).
10 47 C.F.R. § 1.80.
11 See 47 C.F.R. § 1.1914.