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FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
North American Broadcasting ) File No. EB-02-SD-197
Company, Inc. ) NAL/Acct. No.
Licensee of AM station KFNX ) 200232940007
Cave Creek, Arizona ) FRN: 0007-2982-68
2001 N. 3rd Street, Suite 102 )
Phoenix, AZ 85004
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 30, 2002
By the Enforcement Bureau: San Diego Office
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find the North American Broadcasting Company, Inc.,1
licensee of radio station KFNX(AM) Cave Creek, Arizona, has
apparently willfully violated Section 73.1560(a)(1) of the
Federal Communications Commission's (``FCC'') Rules and
Regulations (``Rules'')2 by failing to reduce transmitter
output power in accordance with their station authorization.
We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended (``Act''),3 that North American
Broadcasting Company, Inc., is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
2. Station KFNX is authorized to operate on frequency 1100 kHz
with a daytime operating power of 50 kW and a nighttime
operating power of 1 kW. The station is required to maintain
a directional broadcast pattern, with the shape of the
broadcast pattern identical for both daytime and nighttime
operations. As specified in the station authorization, KFNX
must reduce operating power to 1 kW at local sunset (7:45 p.m.
MST for the month of June) and may resume an operating power
of 50 kW at local sunrise (5:15 a.m. MST for the month of
3. On June 22, 2002 from approximately 6:45 p.m. MST until
10:30 p.m. MST, and on June 23, 2002 in the mid-morning and in
the evening from approximately 7:30 p.m. MST until 10:30 p.m.
MST, Agents from the San Diego District Office conducted AM
broadcast field strength measurements of KFNX at various
locations in the Phoenix, Arizona area. The measured field
strength at a distance of 50 kilometers from the Cave Creek,
Arizona transmitter site was consistent with what would be
expected for a 50 kW AM broadcast station on 1100 kHz. The
Agents found that several hours beyond local sunset time of
7:45 p.m. MST on the evenings of June 22 and June 23, 2002,
the field strength level of station KFNX never changed from
its daytime measurement. Radio station KFNX was apparently
exceeding its authorized nighttime power level of 1 kW and
continued to operate at night with a power level of 50 kW.
4. On the morning on June 24, 2002, the Agents visited the
studio of radio station KFNX at 2001 N. 3rd Street, Suite 102,
Phoenix, Arizona to discuss the station's failure to reduce
operating power at night as required by the terms of the
station's authorization. Tests of the transmitter control
circuits were conducted. The station was operating at its
authorized daytime power of 50 kW. Station personnel could
readily change the operating power from daytime to nighttime
and back. The station did not employ any device to
automatically change operating power at nighttime and relied
upon the station's duty operator to make the necessary
adjustments at the proper times (local sunset and sunrise).
The station did not employ any procedures to remind duty
operators about when to make the necessary power changes or to
document when those changes occurred in a log or check sheet.
5. 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 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.4
6. A broadcast station licensee is responsible for assuring
that at all times the station operates within tolerance
specified by applicable technical rules contained in this part
and in accordance with the terms of the station
authorization.5 Section 73.1560(a) of the Rules states that
"[t]he antenna input power of an AM station as determined by
the procedures specified in Section 73.51 of the Rules must be
maintained as near as is practicable to the authorized antenna
input power and may not be less than 90% nor more than 105% of
the authorized power . . . whenever the transmitter of an AM
station cannot be placed into the specified operating mode at
the time required, transmissions must be immediately
terminated . . . ." In this case, North American Broadcasting
Company, Inc., operated station KFNX at fifty times its
authorized power level at nighttime (50 kW versus 1 kW).
7. Based on the evidence before us, we find that North American
Broadcasting Company, Inc, willfully violated Section
73.1560(a) of the Rules, by exceeding authorized nighttime
power levels and failing to maintain operating power at the
level and within the tolerances specified in its station
authorization and by the Rules. Pursuant to The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines,
(``Forfeiture Policy Statement''),6 the base forfeiture amount
for exceeding power limits is $4,000. 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, which include the nature, circumstances, extent, and
gravity of the violation(s), 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.7 Applying the Forfeiture Policy Statement and the
statutory factors to the instant case, we find no compelling
evidence to support any adjustments to the base forfeiture
amount. Therefore, a forfeiture in the amount of $4,000 is
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b)
of the Act, and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules, North American Broadcasting Company, Inc.,
is hereby NOTIFIED of their APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
violating Section 73.1560(a) of the Rules.8
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, North American Broadcasting Company,
Inc., SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. 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) referenced
above and also must note NAL/Account No. 200232940007.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, DC
20554 and MUST INCLUDE THE NAL/Acct. No. 200232940007.
12. 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; 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
13. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operation Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
14. IT IS FURTHER ORDERED THAT the licensee, North American
Broadcasting Company, Inc., must demonstrate that they are now
operating in compliance with daytime and nighttime operating
parameters. The licensee shall maintain as part of their
station records, power measurements made at three hour
intervals.10 These logs shall be made by the station's duty
operator and reviewed daily by the station's chief operator.
The logs shall contain the signature of the person making the
measurement, the date and local time, the measurement values
made in watts and notations of any discrepancies found or
corrections made. The chief operator shall sign and date the
logs after his or her review. The logs shall be maintained
until the licensee demonstrates to the FCC's Enforcement
Bureau District Office satisfaction that the licensee is in
compliance. The log of the previous month's measurements
shall be forwarded by the 5th day of the new month to the FCC
office at the following address:
FCC San Diego
4542 Ruffner St., Suite 370
San Diego, California 92111
15. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY
shall be sent by certified mail, return receipt requested, to
North American Broadcasting Company, Inc., 2001 N. 3rd Street,
Suite 102, Phoenix, AZ 85004.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director - San Diego Office
1 On August 13, 2002, the Commission granted the application of
North American Broadcasting Company, Inc., to assign the license
for station KFNX to North American Broadcasting Company, Inc.,
Debtor in Possession. According to the assignment application,
BAL-20020725AAL, no change in ownership occurred, only a change
in status of the company. The filing of bankruptcy does not
preclude the Commission from issuing an order imposing a
forfeiture for violating the Rules. See Coleman Enterprises,
Inc., 16 FCC Rcd 24385, 24389 n. 28 (2000); Friendship Cable of
Texas, Inc., Forfeiture Order, DA 02-1086 (May 13, 2002, Enf.
2 47 C.F.R. § 73.1560(a).
3 47 U.S.C. §503(b).
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provide 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).
5 47 C.F.R. § 73.1350 and 74.1400.
6 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80,
9 47 C.F.R. § 1.1914.
10 Pursuant to 47 C.F.R. §§ 0.314(j) and 73.1835 of the Rules,
the District Directors of the FCC's Enforcement Bureau Offices
may require a broadcast station licensee to keep operating and
maintenance records as necessary to resolve rule violations or
deficient technical operation.