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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Reier Broadcasting Company Inc. ) File No. EB-
Licensee of Radio Stations KOBB-FM ) NAL/Acct. No.
and KZLO-FM )
Bozeman, Montana )
Facility ID Nos.:16776 and 55676 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 20, 2004
By the District Director, Seattle Office, Western Region,
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Reier Broadcasting Company Inc.
(``RBC''), licensee of FM radio broadcast stations KOBB-FM and
KZLO-FM in Bozeman, Montana, has apparently willfully and
repeatedly violated Section 73.1350(a) of the Commission's Rules
(``Rules'') by relocating stations KOBB-FM and KZLO-FM prior to
obtaining Commission authority.1 We also find that RBC has
apparently willfully and repeatedly violated Section 73.1560(b)
by failing to operate stations KOBB-FM and KZLO-FM in accordance
with the stations' authorized power.2 We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended
(``Act''),3 that RBC is apparently liable for forfeiture in the
amount of sixteen thousand dollars ($16,000).
2. RBC is the licensee of KOBB-FM and KZLO-FM, Bozeman,
Montana. RBC is authorized to operate station KOBB-FM on 93.7
MHz with 100 kilowatts Effective Radiated Power (ERP) from
45°41'35'' north latitude and 110°58'50'' west longitude.4 RBC
is also authorized to operate station KZLO-FM on 99.9 MHz with
100 kilowatts Effective Radiated Power (ERP) from 45°41'34''
north latitude and 110°58'57'' west longitude.5 On January 8,
2003, the Commission granted RBC's applications for construction
permits (``CPs'') to move the stations' transmitters
approximately six miles to the east of their licensed site.6 On
or about April 23, 2003, the Commission's Seattle Office
obtained information that radio stations KZLO-FM and KOBB-FM
were transmitting from a location other than their licensed site
without a special temporary authority (STA) to do so.7 The
information indicated that RBC was operating the stations at the
same location as KBOZ(AM), approximately seven miles southwest
of the stations' licensed site prior to January 8, 2003.8
3. On June 18, 2003, the Seattle Office issued a Letter of
Inquiry (``LOI'') to RBC concerning the operation of KZLO-FM and
KOBB-FM at locations other than those authorized by the
Commission. On June 24, 2003, RBC responded to the LOI by
sending copies of STA's granted to RBC that allowed a temporary
antenna for KZLO-FM and KOBB-FM to be installed on the existing
tower of KBOZ(AM). The STA applications were submitted on May
8, 2003 and were granted by the Commission's Media Bureau on May
22, 2003.9 In its STA applications, RBC requested operating
power of 15 kilowatts ERP for KOBB-FM and 18 kilowatts ERP for
KZLO-FM. The STA's granted on May 22, 2003, however, authorized
operating power of seven kilowatts ERP for KOBB-FM and eight
kilowatts ERP for KZLO-FM. The STA Grant Letters also
specifically stated that operation at the requested power would
extend the 60 dBu contour of the stations beyond the stations'
licensed contours; therefore, the STA's authorized operation at
the temporary location on the KBOZ tower with reduced power.10
4. On October 21, 2003, Seattle agents inspected the KZLO-
FM, KOBB-FM, and KBOZ transmitter sites. The inspection
included transmitter measurements, measurements at the AM
monitoring points and a review of station logs. The Chief
Operator at the stations stated that KOBB-FM and KZLO-FM had
been shut down sometime in the middle of March because RBC had
lost its transmitter site lease. The logs indicated that the
stations were moved and collocated with KBOZ(AM) and had been
operating at the KBOZ(AM) location since the end of March.
Review of the station logs for both KOBB-FM and KZLO-FM revealed
that from March 20, 2003 through October 20, 2003, the stations
had consistently been operating at power levels approximately
five kilowatts above the operating power allowed by the STA's of
seven kilowatts ERP for KOBB-FM and eight kilowatts ERP for
KZLO-FM.11 When the agents notified the Chief Operator that
both KOBB-FM and KZLO-FM were operating at power levels in
excess of that allowed by the STA's, he took immediate steps to
lower the power of both transmitters to within the authorized
5. 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 there under,
shall be liable for a forfeiture penalty.13 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 day.14
6. Section 73.1350(a) of the Rules states that each
licensee is responsible for maintaining and operating its
broadcast station in a manner which complies with the technical
rules and in accordance with the terms of the station license.15
RBC operated KOBB-FM and KZLO-FM from a location other than the
location specified on the stations' licenses during the time
period from between March 20, 2003, and May 21, 2003. RBC's
requests for STA's on May 8, 2003, which were granted on May 22,
2003, indicates RBC was aware of the need to acquire Special
Temporary Authority before operating from the new location.
Therefore it appears that RBC's violation of Section 73.1350(a)
was willful. It further appears that the violation occurred on
more than one day, thus, it was repeated.
7. Based on the evidence before us, we find that RBC
willfully and repeatedly violated Section 73.1350(a) of the
Commission's Rules by failing to operate its stations at the
locations set forth in the terms of the stations'
8. Section 73.1560(b) states that the transmitter output
of an FM station must be maintained as near as practicable to
the authorized transmitter output power and may not be less than
90% or more than 105% of the authorized power.16 The STA's
granted to RBC on May 22, 2003, authorized operating power of
seven kilowatts ERP for KOBB-FM and eight kilowatts ERP for
KZLO-FM. These STA's specifically denied RBC's request for
operating power of 15 kilowatts ERP for KOBB-FM and 18 kilowatts
ERP for KZLO-FM. Despite the explicit requirements in the STA's
of reduced operating power, RBC, during the period May 22, 2003
to October 21, 2003, operated KOBB-FM at a transmitter power in
excess of 12 kilowatts ERP, 170% of authorized power, and
operated KZLO-FM at a transmitter power in excess of 12.7
kilowatts ERP, 158% of authorized power. RBC was aware of the
reduced operating power limits in the STA's, particularly after
its request for higher operating power for both stations was
denied. Therefore, it appears that its operation of KOBB-FM and
KZLO-FM at more than 105% of the stations' authorized power was
willful. The operation at more than the 105% operating power
appears to have occurred for more than one day, therefore, it
9. Based on the evidence before us, we find that RBC
repeatedly violated Section 73.1560(b) by exceeding the STA
authorized power limits for stations KOBB-FM and KZLO-FM.
10. 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''),17 and Section 1.80 of the Rules,18 the base
forfeiture amount for operation at an unauthorized location is
$4000. Also, according to Section 1.80, the base forfeiture
amount for exceeding power limits is $4000. 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,19 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.
Applying the Forfeiture Policy Statement and statutory factors
to the instant case, we conclude an $8000 forfeiture is
warranted for KOBB-FM and an $8000 forfeiture is warranted for
KZLO-FM. In total, we find that a $16,000 forfeiture is
warranted for RBC, licensee of KOBB-FM and KZLO-FM.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act20 and Sections 0.111, 0.311 and 1.80 of the
Rules, Reier Broadcasting Company Inc. is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of sixteen
thousand dollars ($16,000) for violating Sections 73.1350(a) and
73.1560(b) of the Rules.21
12. 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, Reier 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.
13. 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.
14. The response, if any, must be mailed to the Federal
Communications Commission, Western Region, Seattle Office, 11410
NE 122nd Way, Room 312, Kirkland, WA, 98034-6927, and must
include the NAL/Acct. No. referenced in the caption.
15. 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
16. Requests for payment of the full amount of this Notice
of Apparent Liability for Forfeiture under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.22
17. 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, Spectrum Enforcement Division,
445 12th Street, S.W., Washington, D.C. 20554. 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
18. IT IS FURTHER ORDERED THAT a copy of this Notice of
Apparent Liability shall be sent by Certified Mail Return
Receipt Requested and regular mail to Reier Broadcasting Company
Inc., P.O. Box 20, Bozeman, MT 59718.
FEDERAL COMMUNICATIONS COMMISSION
Dennis J. Anderson
Seattle Office, Western Region
Attachment A - FCC List of Small Entities, October 2002
1 47 C.F.R. § 73.1350(a).
2 47 C.F.R. § 73.1560(b).
3 47 U.S.C. § 503(b).
4 File No. BLH-19830411AA, granted December 12, 1983.
5 File No. BLH-19930420KC, granted October 11, 1994.
6 The new coordinates, according to the CPs, are 45°40'24'' north
latitude and 110°52'04'' west longitude, for both KOBB-FM and
KZLO-FM. See BPH-20020708AAR and BPH-20020708AAQ.
7 See 47 C.F.R. § 73.1635 (A special temporary authority (STA) is
the authority granted to a permittee or licensee to permit the
operation of a broadcast facility for a limited period at a
specified variance from the terms of the station authorization or
requirements of the FCC rules applicable to that particular class
8 RBC is also the licensee of KBOZ(AM), Bozeman, Montana
9 The coordinates approved for both stations pursuant to the
STA's are 45°36'58'' north latitude and 111°05'16'' west
longitude. File No. BSTA-20030509ACO, granted May 22, 2003,
expired August 22, 2003; File No. BSTA-20030509ACN, granted May
22, 2003, expired August 22, 2003. Subsequent extensions of the
STA's have been granted. RBC lost its lease at its originally
licensed tower location and needed to relocate to a temporary
site. See May 22, 2003 Letter to Dennis F. Begley, Esquire, (In
re: KZLO-FM, Bozeman, Montana); May 22, 2003 Letter to Dennis
F. Begley, Esquire, (In re: KOBB-FM, Bozeman, Montana) (``STA
10 See STA Grant Letters.
11 The reviewed data is summarized as follows:
Station 3/20/03 3/24/03 7/31/03
KOBB-FM 12.1 kW 12.1 kW 13.5 kW
13.5 kW 13.1 kW
KZLO-FM 13.2 kW 13.2 kW 13.2 kW 13.7
kW 12.7 kW
12 The Chief Operator indicated that he thought the authorized
power was the same as requested in the original applications for
13 47 U.S.C. § 503(b).
14 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) 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."
15 47 C.F.R. § 73.1350(a).
16 47 C.F.R. § 73.1560(b).
17 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 303
18 47 C.F.R. § 1.80.
19 47 U.S.C. § 503(b)(2)(D).
20 47 U.S.C. § 503(b).
21 47 C.F.R. §§ 0.111, 0.311, 1.80, 73.1350(a) and 73.1560(b).
22 47 C.F.R. § 1.1914.