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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Boulder Community Broadcast )
Association, Inc. File Number: EB-07-DV-193
Licensee of KGNU NAL/Acct. No.: 200832800002
Denver, Colorado FRN: 0006024319
Facility ID# 31349
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 21, 2007
By the District Director, Denver Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Boulder Community Broadcast Association, Inc. ("BCBA"), in
Boulder, Colorado, apparently willfully and repeatedly violated
Section 73.1745(a) of the Commission's Rules ("Rules") by failing to
operate KGNU(AM) in accordance with the station's authorized power as
specified on the station's license. We conclude, pursuant to Section
503(b) of the Act, that BCBA is apparently liable for a forfeiture in
the amount of four thousand dollars ($4,000).
2. KGNU(AM) is authorized to operate with a non-directional pattern on
1390 kHz with 5000 watts during daytime hours and 139 watts during
nighttime hours. Daytime is defined as the "period of time between
local sunrise and local sunset" and nighttime is defined as the period
"between local sunset and local sunrise." In Denver, Colorado, during
the month of April, local sunrise occurs at 6:30 a.m., and local
sunset occurs at 7:45 p.m.
3. On April 26, 2007, in response to a complaint, an agent from the
Enforcement Bureau's Denver Office monitored KGNU(AM) through the
post-sunset nighttime hours with a spectrum analyzer, and determined
that KGNU(AM) failed to reduce its power to its licensed nighttime
power level of 139 watts. The agent continued monitoring the station
on April 27, 28 and 29, 2007, throughout the post-sunset nighttime
hours and determined that on each night, KGNU(AM) failed to reduce its
power to its licensed nighttime power of 139 watts.
4. On April 30, 2007, a Denver agent contacted KGNU about the over-power
operation. KGNU(AM)'s engineer indicated to the agent that a March 16,
2007, software update had corrupted the remote control input and
output systems. According to the KGNU(AM) engineer, this meant that
the system was unable to switch the transmitter to low power at sunset
or switch to full power at sunrise. It also meant that the system was
no longer able to dial out to the preprogrammed BCBA numbers to inform
station personnel that the transmitter had failed to reduce power at
5. On May 4, 2007, a Denver agent contacted KGNU(AM), requesting to
review the station's logs covering April 1 through May 3, 2007. On May
9, 2007, a representative of KGNU(AM) provided the Denver Office with
a letter acknowledging the remote control failure and the immediate
actions undertaken by KGNU(AM) to fully restore the remote control
system, including manually ensuring the power was reduced at the
station at sunset. Also, KGNU(AM) provided copies of remote control
telemetry readings for the period January 18, 2007, to April 24, 2007,
that confirmed KGNU(AM)'s remote control problems.
6. On December 7, 2007, Denver agents inspected KGNU(AM)'s operations at
the transmitter site and viewed additional remote control telemetry
readings on the station's remote control unit that showed KGNU(AM)
operated with daytime power levels of 5000 watts 24 hours a day for
the period from March 17, 2007, to April 30, 2007. The station's
remote control readings directly corresponded to the Denver agent's
observations from April 26, 2007, through April 29, 2007, of KGNU(AM)
operating at power levels exceeding its authorized nighttime power
during nighttime hours.
7. 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. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
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. Specifically, Section 73.1745(a) 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 part of the license.
During the month of April, KGNU(AM) is authorized to operate at 5000
watts between 6:30 a.m., and 7:45 p.m. After 7:45 p.m., and before
6:30 a.m., KGNU(AM) is authorized to operate at 139 watts.
9. Between April 26, 2007, and April 29, 2007, monitoring by a Denver
agent revealed that KGNU(AM) was not reducing its operating power
after 7:45 p.m., as required by its authorization. Further
investigation by Denver agents revealed that telemetry readings made
by KGNU(AM) showed that KGNU(AM) was operating at 5000 watts 24 hours
a day, from March 17, 2007, to April 30, 2007, confirming the Denver
agent's observations between April 26, 2007, and April 29, 2007. BCBA
was aware of the requirement to operate KGNU(AM) at the power levels
authorized on its license, but failed to do so. Therefore, the
violation was willful. The violation occurred on more than one day,
therefore, the violation was repeated.
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"), and Section 1.80 of the Rules, the
base forfeiture amount for exceeding power limits is $4,000 per
violation. In assessing the monetary forfeiture amount, we must also
take into account the statutory factors set forth in Section
503(b)(2)(E) 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.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that BCBA is
apparently liable for a $4,000 forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Boulder Community Broadcast
Association, Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
willfully and repeatedly violating Section 73.1745(a) of the Rules.
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 for Forfeiture, Boulder Community
Broadcast Association, 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 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado 80226 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 submitted.
16. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Associate
Managing Director - Financial Operations, Room 1A625, 445 12th Street,
S.W., Washington, D.C. 20554.
17. 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 Boulder Community Broadcast
Association, Inc., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
Denver District Office
47 C.F.R. S: 73.1745(a).
47 U.S.C. S: 503(b).
47 C.F.R. S: 73.14.
All times indicated are local Mountain Daylight Savings Time.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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. S: 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 one day."
47 C.F.R. S: 73.1745(a).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1745(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission