Click here for Adobe Acrobat version
This document was converted from
WordPerfect or Word to ASCII Text format.
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
Adobe Acrobat version (above).
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Barnstable Broadcasting, Inc. ) File No. EB-01-KC-678
dba Two Rivers Broadcasting Limited Partnership )
FM Broadcast Station KGGO ) NAL/Acct. No. 20013256-003
FM Broadcast Station KJJY )
Antenna Registration #1028734 ) FRN 0003-7827-37
Newton, MA )
Adopted: December 3, 2001 Released: December 5,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of $16,000 to Barnstable
Broadcasting, Inc., (``BBI'') dba Two Rivers Broadcasting Limited
Partnership (``Two Rivers''), previous licensee of Stations
KGGO(FM) and KJJY(FM), Des Moines and West Des Moines, Iowa
respectively1, for willful and repeated violation of Sections
11.35(a) and 17.51(b) of the Commission's Rules (``Rules'').2
The noted violations involved BBI's failure to determine and log
the reasons why EAS tests were not being received and its failure
to maintain antenna lighting in operational condition. We also
find that BBI failed to notify the Federal Aviation
Administration (``FAA'') of lighting outages.
2. On August 3, 2001, the Commission's Kansas City, Kansas
Field Office (``Field Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to BBI for a forfeiture in the
amount of sixteen thousand dollars ($16,000).3 BBI filed a
response to the NAL on August 30, 2001.4 II. BACKGROUND
3. On March 20, 2001 an agent from the Commission's Field
Office inspected Station KRKQ(FM) and found that the licensee was
not determining or logging the reasons why EAS tests were not
being received. On March 28, 2001, the Field Office issued a
Notice of Violation to BBI for violation of Section 11.35(a) of
the Rules. On April 13, 2001, BBI submitted a response to the
Notice of Violation, indicating that steps had been taken to
correct the violation. On May 9, 2001, the FCC received a
complaint of lighting outages on an antenna structure owned by
BBI and used by Station KGGO(FM). On May 9, 2001, at
approximately 3:15 p.m., the Field Office notified Mr. Kim Jones,
manager of KGGO(FM), of the lighting outage. On May 10, 2001, a
station employee notified the FAA of the lighting outage.
4. On May 23, 2001, BBI provided to the Field Office an
incident report on the lighting outage. The report stated that
the auto reporting unit began providing ``intermittent,
inconsistent indications'' of the tower lighting a few months
earlier, but no visual inspection was made until May 9, 2001.
The licensee admitted that it failed to detect and expeditiously
correct the lighting, failed to inform the FAA of the outage in a
timely manner, and failed to make proper log notations. The
licensee also stated that the lighting had been repaired on May
5. On May 29, 2001, an agent from the Field Office
inspected BBI's co-located stations, KGGO(FM) and KJJY(FM).
During the inspection, the agent observed numerous violations of
the Commission's rules including failure to determine and log the
reasons why EAS tests were not being received and failure to
maintain lighting in operational condition. On June 18, 2001,
the Field Office issued a Notice Of Violation to BBI for the
violations observed during the May 29, 2001 inspection. On July
13, 2001, BBI submitted a response to the Notice Of Violation.
On August 3, 2001, the Field Office issued the captioned NAL for
6. On August 30, 2001, BBI filed its response to the NAL,
requesting revision or correction of the NAL. BBI does not
dispute our findings of the violations enumerated in the NAL, and
does not challenge the amount of the forfeiture. BBI disputes,
however, the factual characterizations included in the NAL and
requests that they be corrected and the NAL revised. The NAL
``Stations KGGO, KJJY and three co-owned
and co-located stations in this group
were operating under a time marketing
agreement with Wilks Broadcasting LLC
(``Wilks'') per agreement dated March
19, 2001. At the time of the inspection,
Two Rivers maintained a manager
responsible for accounts receivable and a
receptionist. All station operations,
other than accounts receivable, were
under the direction and oversight of
Wilks.''5 (Emphasis in response to NAL).
BBI claims that the emphasized statements are inaccurate.6 BBI
argues that the duties of its station manager went beyond
responsibility solely for accounts receivable, and that its
station manager ``certainly transcended the de minimis meaningful
7. BBI further states that the NAL's characterization of
the station manager's duties suggests that BBI ``abdicated
control of the station'' and that Wilks ``assumed unauthorized
control of the station.'' According to BBI, either inference is
contrary to the evidence submitted to the Commission and by the
explanation of the station manager's duties. Consequently, the
licensee requests that the Commission revise the NAL to delete
the two erroneous sentences. Alternatively, the licensee
requests that the Commission revise the NAL to reflect the
station manager's complete duties and to reflect that all station
operations, other than accounts receivable, were not under the
direction or oversight of Wilks.
· III. DISCUSSION
8. The forfeiture amount in this case was assessed in
accordance with Section 503 of the Communications Act of 1934, as
amended (``Act''),8 Section 1.80 of the Rules,9 and 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 (1999)
(``Policy Statement''). In examining BBI's response, Section
503(b) of the Act requires that the Commission take into account
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.10
9. In light of the facts of this case and BBI's failure to
refute our findings regarding the violations we conclude that BBI
violated Sections 11.35(a) and 17.51(b) of the Commission's
Rules. Accordingly, we assess a forfeiture in the amount of
$16,000. With respect to BBI's request regarding the NAL, we
strike from the record in this proceeding the sentences in the
NAL that, ``At the time of the inspection, Two Rivers maintained
a manager responsible for accounts receivable and a
receptionist.'' and ``All station operations, other than accounts
receivable, were under the direction and oversight of Wilks.'' IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,11 Barnstable Broadcasting, Inc., dba Two Rivers
Broadcasting Limited Partnership IS LIABLE FOR A MONETARY
FORFEITURE in the amount of sixteen thousand dollars ($16,000)
for failure to determine and log the reasons why EAS tests were
not being received and failure to maintain lighting in
operational condition in willful and repeated violation of
Sections 11.35(a) and 17.51(b) of the Rules.
11. IT IS FURTHER ORDERED that, the underlying Notice of
Apparent Liability for Forfeiture issued in this proceeding will
be revised as indicated above, and unchanged in all other
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.12
Payment shall be made by mailing a check or similar instrument,
payable to the order of the ``Federal Communications
Commission,'' to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 20013256-003, and the FRN 0003-7827-37. Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.13
13. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Barnstable
Broadcasting, Inc. dba Two Rivers Broadcasting Limited
Partnership, 2 Newton Executive Park, Newton, MA, 02162, and to
Allan G. Moskowitz, Esq., Kaye Scholer LLP, The McPherson
Building, 901 Fifteenth Street, NW, Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 On March 19, 2001, BBI entered into a Time Brokerage
Agreement with Wilks Broadcasting LLC (``Wilks'') pursuant to an
Asset Purchase Agreement to assign the licenses of Stations
KBGG(AM), KGGO(FM), KHKI(FM), KRKQ(FM), and KJJY(FM) to Wilks.
The Commission approved the assignment applications on May 7,
2 47 C.F.R. §§ 11.35(a) and 17.51(b).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
20013256-003 (Enf. Bur., Kansas City, Kansas Field Office,
released August 3, 2001).
4 Although BBI's filing is styled as a ``Petition for Limited
Reconsideration of Notice of Apparent Liability for Forfeiture,''
we will treat its filing as a response to the NAL. See 47 C.F.R.
5 NAL, Page 5. The page that is noted as ``5'' is actually
the third page of the document.
6 BBI states that, during the Time Brokerage Agreement, BBI's
station manager had the following duties: monitored Wilks'
programming to ensure compliance as required in Time Brokerage
Agreement; maintained and filed all public file documents;
coordinated all required broadcast and print local public notices
following the filing of the applications to assign the stations'
licenses to Wilks; worked with Wilks' employees, specifically the
Chief Operator and engineer to address necessary action to ensure
FCC compliance after the March 28, 2001 Notice Of Violation was
issued; reviewed all station logs to confirm compliance with FCC
rules after the May 29, 2001 FCC inspection; paid all fees and
expenses relating to the operation and maintenance of the
station; paid all salaries, taxes and insurance and all other
costs related to the licensee's personnel; reviewed and paid all
licensee invoices and collected reimbursable amounts from the
Time Broker; addressed employee concerns regarding vacations,
severance, and benefits, etc. arising from the Time Brokerage
Agreement transition period; supervised the collection and
recording of accounts receivable monies during the term of the
Time Brokerage Agreement; researched and provided a list of all
contracts which were open at the time of the Time Brokerage
Agreement; reported regularly to BBI regarding employee issues,
programming matters etc.; and distributed the Emergency Alert
System Handbook to be posed at all operators' stations.
7 Jones Eastern of the Outerbanks, Inc., 7 FCC Rcd 6800
8 47 U.S.C. § 503(b).
9 47 C.F.R. § 1.80.
10 47 U.S.C. § 503(b)(2)(D).
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.