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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-KC-174
Maria L. Salazar ) NAL/Acct. No. 200232560011
Licensee, Station KTCM(FM) )
Kingman, Kansas ) FRN 0003-7578-12
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 15, 2002 Released: July
By the Commission:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Maria L. Salazar, licensee of radio station
KTCM(FM), Kingman, Kansas, and owner of antenna structure number
1057462 near Spivey, Kansas, apparently liable for a forfeiture
in the amount of thirty-nine thousand dollars ($39,000) for
willful and repeated violation of Sections 301 and 303(q) of the
Communications Act of 1934, as amended (``Act'')1, and Sections
73.1350(a) and 17.51 of the Commissions Rules (``Rules'').2 Ms.
Salazar is also apparently liable for the willful violation of
Sections 11.35(a), 73.1125(a), and 73.3526 of the Rules.3
Specifically, we find Ms. Salazar apparently liable for operating
a radio station from an unauthorized location; failing to
maintain prescribed obstruction lighting on antenna structure
number 1057462; failing to install and maintain Emergency Alert
System (``EAS'') equipment at station KTCM(FM); failing to
maintain a main studio at an authorized location; and failing to
maintain a public inspection file.
2. On April 8, 2002, as a result of receiving a complaint
that station KTCM(FM) was broadcasting on frequency 100.3 MHz
from an unauthorized location in Wichita, Kansas, agents from the
Commission's Kansas City, Missouri Field Office (``Kansas City
Office'') went to Wichita, Kansas to determine if an unauthorized
station was broadcasting on frequency 100.3 MHz. Once in
Wichita, using standard direction finding techniques, the agents
determined that a radio station was broadcasting on frequency
100.3 MHz from the Latino Boom Nightclub at 1514 West 21st Street
North. The agents checked the Commission's records and
determined that no license to operate a FM broadcast station from
this location had been issued.
3. The agents then drove to the last known main studio
address for station KTCM(FM) at 315 West D Avenue, Kingman,
Kansas. In front of the building at that address was a sign
imprinted with the letters ``KTCM,'' however, the building was
locked, appeared to be empty, and no one answered when the agents
knocked. The agents then drove to KTCM(FM)'s authorized
transmitter site near Spivey, Kansas. At the transmitter site,
the agents, by using standard direction finding techniques,
determined that KTCM(FM) was broadcasting from the antenna
structure at that location on its authorized frequency of 100.3
MHz. The programming at the transmitter site appeared to be the
same as that being broadcast from the unauthorized location in
4. While at the transmitter site, the agents inspected
antenna structure number 1057462, which is owned by Ms. Salazar.
The agents observed that, of the six prescribed lights on the
structure, the top flashing beacon and three of the four side
lamps were not lighted. The agents contacted the Federal
Aviation Administration (``FAA'') Flight Service Station in
Wichita, Kansas, determined that no report of light outages had
been made for antenna structure number 1057462, and reported the
5. On April 9, 2002, after confirming that unauthorized
broadcast transmissions continued to emanate from the Latino Boom
Nightclub, the agents interviewed Ms. Salazar at the nightclub
and inspected the station. The agents also interviewed Mr. Juan
Antonio Delgado because Ms. Salazar instructed them to address
their questions concerning the operation of KTCM(FM) to Mr.
Delgado. Mr. Delgado stated that the studio at the Latino Boom
originated programming for both KTCM(FM)'s authorized transmitter
and the unauthorized station at the nightclub. In response to
the agent's questioning, Ms. Salazar stated that she did not have
an authorization to operate at the Latino Boom Nightclub. Also
during the inspection, the agents determined that KTCM(FM) had no
public inspection file and no EAS equipment.
6. On April 18, 2002, the Kansas City Office received a
letter from Ms. Salazar, in which she stated that she relied on a
professional broadcast engineer to ensure that her operation of
KTCM(FM) was in accordance with the Act and the Rules. She also
stated that she moved KTCM(FM)'s studio to Wichita on the advice
of the engineer and that, because he recommended it, she thought
the move was legal. Finally Ms. Salazar stated that she has
ceased operating from Wichita and has moved KTCM(FM)'s studio
back to Kingman.
7. Section 301 of the Act sets forth the general mandate
that no person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio
within the United States except under and in accordance with the
Act and with a license. Section 73.1350(a) provides that each
licensee is responsible for maintaining and operating its
broadcast station in a manner which complies with the technical
rules set forth elsewhere in this part and in accordance with the
terms of the station authorization. Although Ms. Salazar holds a
Commission license to operate a broadcast station in Kingman,
Kansas, on April 8 and 9, 2002, Ms. Salazar operated a radio
station on frequency 100.3 MHz at 1514 West 21st Street North,
Wichita, Kansas, a location from which she was not authorized to
8. Section 303(q) of the Act, along with Part 17 of the
Rules, requires antenna structure owners to maintain the painting
and lighting of antenna structures as prescribed by the
Commission. The Commission's antenna structure construction,
marking and lighting requirements operate in concert with the
FAA's regulations to ensure that antenna structures do not
present hazards to air navigation. Generally, our rules require
that antenna structures located close to airports or that are
greater than 200 feet in height comply with painting and lighting
specifications designed to ensure air safety.4 The Rules further
require antenna structure owners to monitor lights daily or
install automatic alarm systems to ensure lights function
properly.5 The Rules also require that red obstruction lighting
be exhibited from sunset to sunrise unless otherwise specified.6
Antenna structure owners are required to maintain lighting
equipment and replace or repair inoperative lights, indicators
and control and alarm systems as soon as practicable.7
Additionally, antenna structure owners are required immediately
to notify the FAA when major antenna structure lights are
inoperative and cannot be repaired within 30 minutes.8 Ms.
Salazar's antenna structure required obstruction lighting because
it is greater than 200 feet in height and because the FAA
recommended obstruction lighting for the structure. The agents
observed that four of the six prescribed obstruction lights,
including the top flashing beacon and three of four side lamps,
were unlighted on April 8, 2002 at 4:30 p.m. in violation of
Section 17.51 of the Rules. During the inspection on April 9,
2002, Mr. Delgado stated that he knew the lights were out for at
least two weeks prior to the inspection and that he had not
reported the light outage to the FAA as required. There were no
logs documenting the light outages. Additionally, Mr. Delgado
stated that he visually observed the lights approximately every
two weeks and not on the requisite daily basis.
9. Section 11.35(a) of the Rules requires broadcast
stations to have the necessary EAS equipment installed so that
monitoring and transmitting functions are available during the
times the station and systems are in operation. On April 9,
2002, Ms. Salazar had no EAS equipment installed at the KTCM(FM)
studio. Ms. Salazar stated during the inspection that the
equipment had been removed for repair and had not been replaced.
There were no log entries indicating removal of the equipment for
repair and there were no log entries indicating that EAS
equipment had ever been installed or used. Although Ms. Salazar
stated that KTCM(FM)'s engineer removed the EAS equipment for
repair about 60 days prior to the inspection, the fact remains
that no EAS equipment was installed at station KTCM(FM) on the
day of the inspection and there is no evidence that EAS equipment
had been removed for repair. In this regard, we note that if
defective EAS equipment was sent out for repair in late January
or early February of 2002, as Ms. Salazar stated, then a request
for additional time to have the equipment repaired should have
already been made to the Kansas City Office under Section
11.35(c) of the Rules,9 which requires that an informal request
be submitted to the District Director of the FCC Field Office
serving the area in which KTCM(FM) is located for additional time
to repair defective EAS equipment if the repair or replacement is
not completed within 60 days. No such request has been received
by the Kansas City Office.
10. Section 73.1125(a) of the Rules generally requires
broadcast stations to maintain a main studio at one of the
following locations: (i) within the station's community of
license; (ii) at any location within the principal community
contour of any AM, FM, TV broadcast station licensed to the
station's community of license; or (iii) within twenty-five miles
from the reference coordinates of the center of its community of
license. In December, 2001, Ms. Salazar admittedly moved
KTCM(FM)'s main studio outside of Kingman, Kansas, its community
of license, to the Latino Boom Nightclub in Wichita, Kansas. At
the time of the inspection, the KTCM(FM) studio at the Latino
Boom was located 27.1 miles outside of KTCM(FM)'s principal
community contour. The only other broadcast station licensed to
Kingman, Kansas was station KCVW(FM). The Latino Boom Nightclub
is located 12.6 miles outside of the principal community contour
of station KCVW(FM). Further, the Latino Boom Nightclub is 41.9
miles from the reference coordinates of the center of the city of
Kingman, Kansas. Therefore, the location of station KTCM(FM)'s
main studio on the date of the inspection was not any of the
locations permitted by Section 73.1125(a) of the Rules.
11. Section 73.3526 of the Rules requires commercial
broadcast stations to maintain a public inspection file. On
April 9, 2002, no public file for station KTCM(FM) was present
during the inspection and in response to the agents request to
see the public file, Ms. Salazar stated that the station did not
have a public file.
12. Based on the evidence before us, we find that Ms.
Salazar, licensee of KTCM(FM), Kingman, Kansas, has apparently
operated a radio station at an unauthorized location without the
required license to operate at that location in willful10 and
repeated11 violation of Section 301 of the Act and Section
73.1350(a) of the Rules; failed to maintain prescribed
obstruction lighting on her antenna structure in willful and
repeated violation of Section 303(q) of the Act and Section 17.51
of the Rules; failed to install and maintain operable EAS
equipment in willful violation of Section 11.35(a) of the Rules;
failed to maintain a main studio at an authorized location in
willful violation of Section 73.1125(a) of the Rules; and failed
to maintain a public inspection at KTCM(FM)'s main studio file in
willful violation of Section 73.3526 of the Rules.
13. Section 503(b) of the Act,12 authorizes the Commission
to assess a forfeiture for each willful or repeated violation of
the Act or of any rule, regulation, or order issued by the
Commission under the Act. In exercising such authority, we are
to 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 such other matters as justice may require.''13
14. 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'')14 and Section 1.80 of the Rules,15 the base
forfeiture amounts for the listed violations are: $4,000 for
operation of a radio station at an unauthorized location;16
$10,000 for failure to comply with prescribed lighting and
marking requirements;17 $8,000 for failure to have EAS equipment
installed and operational;18 $7,000 for violating the main studio
rule;19 and $10,000 for violating the public inspection file
rule.20 Thus, the total base forfeiture amount for all of Ms.
Salazar's violations is $39,000. Consistent with precedent, we
propose to issue a forfeiture in the amount of $39,000.
III. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Section 1.80 of the Rules, Maria L.
Salazar, licensee of KTCM(FM), Kingman, Kansas, is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of thirty-nine thousand dollars ($39,000) for willfully
and repeatedly violating Sections 301 and 303(q) of the Act and
Sections 73.1350(a) and 17.51 of the Rules and for willfully
violating Sections 11.35(a), 73.1125(a), and 73.3526 of the
16. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Maria L. Salazar SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
17. Payment 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 NAL/Acct. No.
200232560011 and FRN # 0003-7578-12. Requests for payment of the
full amount of this Notice of Apparent Liability under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
18. The response if any must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Technical and Public Safety Division and must include NAL/Acct.
19. 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; 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.
20. IT IS FURTHER ORDERED that a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Maria L. Salazar at 207 W. 13th Street North, Wichita, Kansas
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 47 U.S.C. §§ 301 and 303(q).
2 47 C.F.R. §§ 17.51 and 73.1350(a).
3 47 C.F.R. §§ 11.35(a), 73.1125(a), and 73.3526.
4 47 C.F.R. § 17.21.
5 47 C.F.R. § 17.47
6 47 C.F.R. § 17.51.
7 47 C.F.R. § 17.56
8 47 C.F.R. § 17.48
9 47 C.F.R. § 11.35(c).
10 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).
11 See id. at 4388; as defined in the Act, 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. § 312(f)(2).
12 47 U.S.C. § 503(b).
13 47 U.S.C. § 503(b)(2)(D).
14 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303
15 47 C.F.R. § 1.80.
16 See, e.g., M.C. Allen Productions, 16 FCC Rcd 21138, 21143
(Enf. Bur. 2001); Arvada Excavating Company, Inc., 15 FCC Rcd
13590, 13590 (Enf. Bur. 2000) (both imposing $4,000 forfeitures
for operating from an unauthorized location).
17 See, e.g., Tidewater Communications, Inc., 17 FCC Rcd 8586,
8586 (Enf. Bur. 2002); Spectrasite Communications, Inc., 16 FCC
Rcd 17668, 17668 (Enf. Bur. 2001) (both imposing $10,000
forfeitures for violating the Commission's prescribed lighting
and marking requirements).
18 See, e.g., Radio One Licenses, Inc., 16 FCC Rcd 15326,
15327-15328 (Enf. Bur. 2001), recon. denied, 17 FCC Rcd 1724
(Enf. Bur. 2001), application for review pending; Arnold
Broadcasting Company, Inc., 16 FCC Rcd 13600, 13602 (2001) (both
imposing $8,000 forfeitures for not having EAS equipment
installed and operational).
19 See, e.g., American Broadcasting Educational Foundation, 15
FCC Rcd 8630, 8630 (Enf. Bur. 2000) (imposing a $7,000 forfeiture
for violation of the main studio rules).
20 See, e.g., Radio One Licenses, Inc., at 15330 (imposing a
$10,000 forfeiture for failure to maintain public inspection
file). See also Riverside Broadcasting, Inc., 15 FCC Rcd 18322,
18323 (Enf. Bur., Inv. & Hear. 2000) (imposing a $10,000
forfeiture for public file violations).
21 See 47 C.F.R. § 1.1914.