Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
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:
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.
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
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
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
FEDERAL COMMUNICATIONS COMMISSION
- Unhandled Picture -
Robert C. McKinney
Kansas City Office, Enforcement Bureau
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. §
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.