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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Simmons-SLC, LS, LLC ) File Number: EB-02-DV-076
Licensee of FM Station KJQN ) NAL/Acct. No. 200332800009
Brigham City, Utah ) FRN 0004-9693-74
Facility ID #81867 )
Licensee of FM Translator )
Station K264AC )
Utah County, Utah )
Facility ID #60459
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the Acting District Director, Denver Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Simmons-SLC, LS, LLC, ("Simmons") licensee of FM station
KJQN in Brigham City, Utah, and translator station K264AC, in rural
Utah County, Utah, apparently willfully and repeatedly violated
Section 74.1232(d) of the Commission's Rules ("Rules"),1 by using
station K264AC to extend the 1 mV/m contour of FM station KJQN beyond
its authorized contour. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended,2 that Simmons is
apparently liable for a forfeiture in the amount of four thousand
2. Station K264AC is licensed to Simmons and authorized to
provide fill-in service for Simmons owned FM station KSFI in Salt Lake
City, Utah. Station K264AC is authorized to provide service to rural
Utah County and to transmit from West Mountain, approximately 40 miles
south of downtown Salt Lake City.
3. On April 10, 2002, the Denver Office received a complaint that
FM translator station K264AC was transmitting FM station KJQN's signal
beyond the 1 mV/m contour into areas approximately 50 miles south of
downtown Salt Lake City. Simmons also owns station KJQN which is
licensed to Brigham City, Utah, and transmits from Cow Mountain
approximately 70 miles north of downtown Salt Lake City. KJQN's 1
mV/m contour lies entirely north of downtown Salt Lake City and
station K264AC's 1 mV/m contour lies entirely south of downtown Salt
Lake City. The authorized 1 mV/m contours of K264AC and KJQN do not
4. On April 10, 2002, the Denver Office agent contacted Simmons'
Director of Engineering. The engineer admitted that K264AC was
transmitting the signal of station KJQN rather than KSFI; that station
K264AC's coverage contour is outside of KJQN's 1 mV/m contour; and
that station K264AC had been operating with that configuration for
approximately 30 days.
5. On October 21, 2002, the Denver Office issued a Notice of
Violation ("NOV") to Simmons for violation of Section's 74.1232(d) and
74.1251(c) of the Rules. On October 31, 2002, the Denver Office
received a response from Simmons stating that station K264AC ceased
transmitting the signal of station KJQN on April 11, 2002.
6. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the terms
and conditions of any license, or willfully or 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.3 The term "willful" as used in
Section 503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly and the term "repeated" means the
commission or omission of the Act more than once or for more than one
7. A broadcast station licensee is responsible for maintaining
and operating the station in accordance with the terms of the station
license. Section 74.1232(d) of the Rules sets forth generally that an
authorization for a FM translator whose coverage contour extends
beyond the protected contour of the commercial primary station will
not be granted to the licensee or permittee of a commercial FM radio
broadcast station. Translator station K264AC was authorized to
transmit the signal of its primary station KSFI. By using station
K264AC to transmit station KJQN, Simmons failed to comply with the
terms of station K264AC's license and improperly extended the
1 mV/m contour of station KJQN. Based on the evidence, we find that
Simmons willfully and repeatedly violated Section 74.1232(d) of the
Rules by extending the 1 mV/m contour of FM station KJQN.
8. The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"),5 and Section 1.80 of the Commission's
Rules,6 do not specify a base forfeiture for violation of the terms
and conditions of the license by extending the 1 mV/m contour of a FM
primary radio station. Therefore we must determine an appropriate
amount for this violation.7 Similar operational parameters such as
construction or operation at an unauthorized location, exceeding power
limits, and using an unauthorized frequency, carry a base forfeiture
of $4,000. Accordingly, we believe a base forfeiture in the
amount of $4,000 is appropriate. Translator station K264AC is
legally licensed by the FCC as a fill-in translator for primary FM
station KSFI. In this instance, translator station K264AC was not
being used for this purpose and would not be authorized at the
specified location by the Commission because the operation extends the
1 mV/m contour of a FM primary station. Therefore, translator station
K264AC's operation is treated as construction or operation at an
unauthorized location, and a base forfeiture of $4,000 will be
9. 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 $4,000 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, Simmons-SLC, LS, LLC, is hereby
NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for violation of Section 74.1232(d) of
11. 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, Simmons-SLC, LS, LLC, SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
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 also must note 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. 20554.10
16. 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 Federal Communications
Commission, Enforcement Bureau, 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 Act. If you have questions regarding any of the
information contained in Attachment A, please contact OCBO at (202)
17.IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 9448,
Return Receipt Requested and First Class Mail, to Simmons-SLC, LS,
LLC, 515 South 700 East - Suite 1C, Salt Lake City, Utah 84102.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
Acting District Director, Denver Office
Enclosure: Attachment A
1 47 C.F.R. § 74.1232(d).
2 47 U.S.C. § 503(b).
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 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...."
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. § 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."
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 C.F.R. § 1.80.
7 The fact that the Forfeiture Policy Statement does not specify
a base amount does not indicate that no forfeiture should be imposed.
The Forfeiture Policy Statement states that "any omission of a
specific rule violation from the...[Forfeiture Policy
Statement]...should not signal that the Commission considers any
unlisted violation as nonexistent or unimportant." Forfeiture Policy
Statement, 12 FCC Rcd at 17,099. See e.g., American Tower
Corporation, 16 FCC Rcd 1282 (2001).
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, and
10 See 47 C.F.R. § 1.1914.