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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Bustos Media Holdings of Oregon, ) File Number: EB-04-PO-144
) NAL/Acct. No: 200532920001
Former Licensee of Station )
KZNY(AM) ) FRN: 0009298852
Facility ID # 68212
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 7,
By the Resident Agent, Portland Resident Agent Office, Western
Region, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Bustos Media of Oregon, LLC. (``Bustos''),1
licensee of station KZNY(AM), in Milwaukie, Oregon, apparently
willfully and repeatedly violated Section 73.1745(a) of the
Commission's Rules ("Rules")2 by failing to operate KZNY in
accordance with the station's authorized power and hours of
operation. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"),3 that Bustos is
apparently liable for a forfeiture in the amount of four thousand
2. Station KZNY is authorized to operate on 1010 kHz with
4,500 watts during daytime hours. 4 Daytime is defined as the
``period of time between local sunrise and local sunset.''5 In
Milwaukie, Oregon, during the month of August, local sunrise
occurs at 6:15 a.m. and local sunset occurs at 8:15 p.m. In
September, local sunrise occurs at 6:45 a.m. and local sunset
occurs at 7:30 p.m.6 KZNY is also authorized to operate under a
presunrise service authorization (``PSRA'') and a postsunset
service authorization (``PSSA'') which extends the hours of
operation earlier into the morning and later into the night.7
Taken together, these authorizations allow KZNY to operate
between 6:00 a.m. and 10:15 p.m., only, during the month of
August and between 6:00 a.m. and 9:30 p.m., only, during the
month of September.
3. On August 23, 2004, the Resident Agent from the
Commission's Portland Resident Agent Office monitored KZNY
operating on 1010 kHz at 11:35 p.m. Field strength measurements
made by the agent at a distance of 2.5 miles from the KZNY
transmitting antenna measured 14 mV/m (``millivolts/meter''). On
August 27, 2004, the Portland agent again monitored KZNY
operating on 1010 kHz at 4:00 a.m. Field strength measurements
made by the agent at a distance of 2.5 miles from the
transmitting antenna measured 13 mV/m.
4. Later on August 27, 2004, the Portland agent conducted
an inspection of the station. During the inspection, the agent
queried the general manager about KZNY's nighttime operation
indicating that KZNY had no authority to operate at night. The
general manager replied that the station had always operated at
night. The agent also queried KZNY's chief engineer about the
nighttime operation. The chief engineer replied that the station
was permitted to operate at night under a ``grandfather'' clause
that allowed daytime only stations to operate at night with very
limited power. The chief engineer told the agent that he would
fax the authorization to the agent. The authorizations received
by the agent were the KZNY PSRA/PSSA authorizations.
5. On September 9, 2004, the Portland agent monitored KZNY
operating on 1010 KHz at 9:45 p.m. Field strength measurements
made by the agent at a distance of 0.6 miles from the KZNY
transmitting antenna measured 16 mV/m.
6. On September 15, 2004, a review of Commission databases
and archives revealed that KZNY had no license, authorization or
special temporary authorization to operate beyond the parameters
in the authorizations listed above. Later that day, at 10:25
p.m., the Portland agent monitored KZNY on 1010 KHz but found
that the station was not operating.
7. Section 503(b) of the Act provides that any person who
repeatedly fails to comply substantially with the terms and
conditions of any license, 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. The term "willful" as used in Section 503(b)
has been interpreted to mean simply that the acts or omissions
are committed knowingly.8 The term ``repeated'' means the
commission or omission of such act more than once or for more
than one day.9
8. The Rules state 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.10 Specifically, Section 73.1745
of the Commission's Rules states that no broadcast station shall
operate at times or with modes or power, other than those
specified and made a part of the license. Station KZNY is
authorized for operations during daytime with 4500 watts power.
Additionally, KZNY is authorized for limited presunrise and
postsunset operations pursuant to its PSRA/PSSA authorizations.
However, KZNY is not authorized to operate between 10:15 p.m. to
6:00 a.m. during the month of August and between 9:30 p.m. to
6:00 a.m. during the month of September.
9. On August 23, 2004, August 27, 2004, and September 9,
2004, the Portland Resident Agent monitored KZNY operating
outside the hours of authorized operation. On August 27, 2004,
the agent indicated to the KZNY general manager that the station
had no authority to operate at night. When the agent asked the
station's general manager and the chief engineer if the station
was authorized for nighttime operation, both indicated that the
station was authorized. The only supporting documentation
provided to the agent was the PSRA/PSSA authorizations. Further
research by the Portland agent revealed no authorization for KZNY
for nighttime operation beyond the station's PSSA/PSRA
10. Bustos continued to operate KZNY outside of the
parameters stated in KZNY's authorizations, despite being unable
to produce an authorization for such operation. Therefore,
Bustos' violation is willful. Bustos' violation occurred on more
than one day, therefore, it is repeated. Based on the evidence
before us, we find that Bustos apparently willfully and
repeatedly violated Section 73.1745(a) of the Rules by operating
KZNY at times outside of the KZNY station authorizations.
11. 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"), and Section 1.80 of the Rules, the base forfeiture
amount for unauthorized emissions is $4,000.11 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 violations, 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.12 Applying the
Forfeiture Policy Statement, Section 1.80, and the statutory
factors to the instant case, we find that Bustos is apparently
liable for a $4,000 forfeiture.
III. ORDERING CLAUSES
12. 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, Bustos
Media Holdings of Oregon, LLC., is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($4,000) for violations of Section 73.1745(a) of
13. 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 for Forfeiture, Bustos Media
Holdings of Oregon SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
14. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
15. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Portland Resident Agent Office, P.O. Box 61469, Vancouver,
Washington, 98666-1469 and must include the NAL/Acct. No.
referenced in the caption.
16. 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
17. 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. 20554.8
18. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Bustos Media
Holdings of Oregon, LLC, and Bustos Media of Oregon License, LLC.
FEDERAL COMMUNICATIONS COMMISSION
James M. Lafontaine
Portland Resident Agent Office
1On December 15, 2004, an application, File Number BAL-
20041102ADC, was granted, assigning the KZNY(AM) license from
Bustos Media Holdings of Oregon, LLC to Bustos Media of Oregon,
LLC. On January 28, 2005, an application, File Number BAL-
20041222AAY, was granted, assigning the KZNY(AM) license from
Bustos Media of Oregon, LLC to Bustos Media of Oregon License,
247 C.F.R. § 73.1745(a).
347 U.S.C. § 503(b).
4Additionally, KZNY's authorization requires operation with 1,100
watts during the ``critical hours'' period. Critical hours'' is
defined as the ``two hour period immediately following local
sunrise and the two hour period immediately preceding local
sunset.'' 47 C.F.R. § 73.14.
547 C.F.R. § 73.14.
6All times indicated are local Daylight Savings Time.
7See 47 C.F.R. § 73.99.
8See 47 C.F.R. § 1.1914.
Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[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
10 47 C.F.R. § 73.1350(a).
1112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1247 U.S.C. § 503(b)(2)(D).
1347 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 73.1745(a)
8See 47 C.F.R. § 1.1914.