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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                   )     File Number EB-03-KC-001
                                                            )
Johnson Enterprises, Inc.          )    NAL/Acct. No 200332560016
Licensee of KLEY(AM)               )
Wellington, Kansas                 )             FRN 0006-1509-65
                                  )


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                          Released: April 3, 2003

By the Enforcement Bureau, Kansas City Office:

                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''),  we  find  Johnson  Enterprises,  Inc.  (``Johnson''), 
licensee of broadcast radio station KLEY(AM), Wellington, Kansas, 
apparently liable for a forfeiture in the amount of six  thousand 
dollars ($6,000) for  willful and repeated  violation of  Section 
73.1745(a) of the Commission's Rules (``Rules'').1  Specifically, 
we find Johnson Enterprises, Inc. apparently liable for operating 
station KLEY with full daytime power at night.

                         II.  BACKGROUND

     2.   On  January  6,  2003,  the  Commission's   Enforcement 
Bureau, Kansas City  Office (``Kansas City  Office'') received  a 
confidential complaint  specifying  that station  KLEY  had  been 
operating  at  night  with  full  daytime  power  while  carrying 
Nebraska University  football  games  and  other  local  sporting 
events.  The  complaint  indicated  the station  appeared  to  be 
attempting to cover Wichita, Kansas with its broadcast signal and 
questioned how  this  could  occur  with only  1  watt  of  power 
authorized at night.  Wichita is approximately 30 miles from  the 
KLEY location in Wellington.   KLEY's station license  authorizes 
operation with 250 watts of power daytime and 1 watt nighttime.

     3.   During the period  of January 10-21,  2003, the  Kansas 
City Office monitored the signal strength level of station  KLEY.  
The monitoring showed that KLEY remained at daytime power  during 
nighttime hours on January 10 through January 13, 2003.

     4.   On January 30, 2003, an agent of the Kansas City Office 
inspected radio station  KLEY, accompanied by  owner and  general 
manager Gordon  Johnson and  chief operator  Vernon Napier.   The 
inspection determined the following:
       a)      Mr. Johnson stated that Johnson had entered into a 
          written contract to carry Nebraska University  football 
          games on  KLEY  during the  2002 football  season  ``in 
          their  entirety.''  Mr.  Johnson  produced  a  contract 
          with the Kansas Cornhusker Club of Wichita, Kansas.
       b)      Mr.  Johnson  stated  that  on  August  24,  2002, 
          beginning  at 6:45  p.m.  and lasting  approximately  3 
          hours,  station  KLEY aired  a  football  game  between 
          Arizona State University and Nebraska University  while 
          operating with  full daytime power  of 250 watts.   The 
          KLEY authorization specifies sunset time for the  month 
          of August is  7:30 p.m.   Mr.  Johnson stated that  the 
          station  utilized  an automatic  timer  to  switch  the 
          transmitter between daytime and nighttime power  levels 
          and that,  on August  24, 2002, the  operator used  the 
          manual  override  to   operate  the  transmitter   with 
          daytime power during nighttime hours.
       c)      Mr. Johnson  stated that  on September  14,  2002, 
          beginning  at 7:00  p.m.  and lasting  approximately  3 
          hours, station KLEY aired a football game between  Penn 
          State  and Nebraska  University  while  operating  with 
          full   daytime   power  of   250   watts.    The   KLEY 
          authorization specifies  sunset time for  the month  of 
          September is 6:45 p.m.  Mr. Johnson stated that, as  on 
          August 24,  2002, the  operator manually  overrode  the 
          automatic timer  in order  to operate  the  transmitter 
          with daytime power during nighttime hours.
       d)      Mr. Johnson stated  that he  observed the  station 
          operating on daytime power after sunset on the  evening 
          of  January 28,  2003,  but allowed  the  operation  to 
          continue through the next day.  Mr. Napier stated  that 
          when he arrived  at the station  before sunrise on  the 
          morning of January 29, 2003, the station was  operating 
          at daytime power.
       e)      Mr. Johnson stated he  was unaware of the  daytime 
          power operation during  nighttime hours on January  10-
          13, 2003, as  observed by the  Kansas City Office,  but 
          did not refute the operation.
       f)      KLEY maintains  no  human operator  in  charge  of 
          nighttime  transmitter  and  no  automated   monitoring 
          devices are  installed to monitor  the transmitter  for 
          out-of-tolerance conditions.
                        III.  DISCUSSION

     5.   Section 73.1745(a) requires  that no broadcast  station 
shall operate at times, or with modes or power, other than  those 
specified and made a part of the license.  The terms of the  KLEY 
station authorization specifies that the station may operate from 
local sunrise to  local sunset  with a  power of  250 watts,  and 
authorizes nighttime operation from midnight to local sunrise and 
from sunset to midnight  each day with a  power of 1 watt.   KLEY 
operated its station with daytime power during nighttime hours on 
the following  dates:   August  24,  2002,  September  14,  2002, 
January 10, 2003, January 11, 2003, January 12, 2003, January 13, 
2003, January 28, 2003, and January 29, 2003.

     6.   Based on  the  evidence  before  us,  we  find  Johnson 
willfully2 and  repeatedly3 violated  Section 73.1745(a)  of  the 
Rules and the terms of the KLEY station authorization by  failing 
to reduce power to 1  watt during nighttime operation of  station 
KLEY on seven separate dates.

     7.   Pursuant to Section 1.80(b)(4) of the Rules,4 the  base 
forfeiture  amount  for  overpower   operation  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 Communications  Act of 1934,  as amended (``Act''),  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.5  With regards to  the 
overpower operation, the  evidence shows  that Johnson  knowingly 
operated overpower at night because, on at least two occasions, a 
Johnson  employee   intentionally  bypassed   the   transmitter's 
automatic timer  preventing the  required reduction  of power  at 
night.  Based on  these circumstances, an  upwards adjustment  of 
the base forfeiture  amount from $4,000  to $6,000 is  warranted.  
Considering the  entire record  and applying  the factors  listed 
above, this case warrants a $6,000 forfeiture.
                      IV.  ORDERING CLAUSES

     8.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the  Act,6 and Sections  0.111, 0.311 and  1.80 of  the 
Rules,7 Johnson  Enterprises, Inc.  is  hereby NOTIFIED  of  this 
APPARENT LIABILITY FOR A FORFEITURE in the amount of six thousand 
dollars ($6,000) for  willful and repeated  violation of  Section 
73.1745(a) of  the  Rules  and  the terms  of  the  KLEY  station 
authorization for operating  station KLEY overpower  at night  on 
seven separate dates.

     9.   IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Rules, within thirty  days of the release  date of this  NAL, 
Johnson Enterprises,  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 should note the 
NAL/Acct. No. and FRN referenced above.  Requests for payment  of 
the full amount of this NAL  under an installment plan should  be 
sent to:  Chief, Revenue  and Receivables  Operations Group,  445 
12th Street, S.W., Washington, D.C. 20554.8

     11.  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.  

     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  (``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.

     13.  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.

     14.   IT IS FURTHER ORDERED THAT a copy of this NAL shall be 
sent by regular mail and Certified Mail Return Receipt  Requested 
to Johnson Enterprises,  Inc., P.O. Box  707, Wellington,  Kansas  
67152.   


                         FEDERAL COMMUNICATIONS COMMISSION

                           - Unhandled Picture -  

                         Robert C. McKinney
                         Kansas City Office, Enforcement Bureau


Attachment
_________________________

1 47 C.F.R.  73.1745(a).

2 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 4387-88 (1991).

3 The 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.''  47 U.S.C.  
312(f)(2).

4 47 C.F.R.  1.80(b)(4).

5 47 U.S.C.  503(b)(2)(D).

6 47 U.S.C.  503(b).

7 47 C.F.R.  0.111, 0.311, 1.80.

8 See 47 C.F.R.  1.1914.