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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554



In the Matter of                )       
                                )       
A-O Broadcasting Corporation    )       File No. EB-01-DV-334
                                )
Licensee of Station KTMN(FM)    )       NAL/Acct.             No. 
200332800001
Cloudcroft, New Mexico          )       FRN # 0005-0204-74
Facility ID #89049              )       
                                

           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:  November 14, 2002        Released:  November 18, 2002
                                             
By the Commission:

                         I.  Introduction

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''), we find that  A-O Broadcasting Corporation  (``A-O''), 
licensee of  FM  radio  station  KTMN,  Cloudcroft,  New  Mexico, 
apparently willfully  and  repeatedly violated  Sections  1.1310, 
11.35,  73.1125,   and   73.1400  of   the   Commission's   Rules 
(``Rules'')1 by failing to comply with radio frequency  radiation 
maximum permissible exposure limits applicable to transmitters on 
towers, failing to  have EAS equipment  installed and  operating, 
failing to maintain a  main studio and  failing to have  adequate 
transmission system control.   We conclude,  pursuant to  Section 
503(b) of the Communications Act of 1934, as amended  (``Act''),2 
that A-O is apparently liable for  a forfeiture in the amount  of 
twenty-eight thousand dollars ($28,000).

                         II.  Background

     2.   In 1996, the Commission amended its rules to adopt  new 
guidelines  and  procedures  for  evaluating  the   environmental 
effects of radio frequency radiation (``RFR'') from FCC-regulated 
transmitters.3   The  Commission   adopted  maximum   permissible 
exposure  (``MPE'')  limits  for  electric  and  magnetic   field 
strength and power density  for transmitters operating on  towers 
at frequencies from 300 kHz to 100 GHz.4  These MPE limits, which 
are set forth in Section 1.1310 of the Rules, include limits  for 
``occupational/controlled'' exposure  and  limits  for  ``general 
population/uncontrolled'' exposure.   The  occupational  exposure 
limits apply  in situations  in which  persons are  exposed as  a 
consequence of their employment provided those persons are  fully 
aware of the potential for exposure and can exercise control over 
their exposure.5  The limits for occupational exposure also apply 
in situations where an individual is transient through a location 
where the occupational limits apply,  provided that he or she  is 
made aware of  the potential  for exposure.   The more  stringent 
general population or public exposure limits apply in  situations 
in which the general public may  be exposed, or in which  persons 
that are exposed as a consequence of their employment may not  be 
fully aware  of the  potential for  exposure or  cannot  exercise 
control over their exposure.6  

     3.   An  applicant  for  an  initial  construction   permit, 
license, or renewal  or modification  of an  existing license  is 
generally required  to  perform  the  necessary  analysis  (e.g., 
calculations  and/or   measurements)  to   determine  whether   a 
particular transmitting facility on a tower complies with the RFR 
exposure limits.  If, on the basis of its analysis, the applicant 
determines that  the  facility  complies with  the  RFR  exposure 
limits,  the  applicant  certifies  compliance  as  part  of  its 
application.  If,  on the  other hand,  the applicant  determines 
that operation  of the  facility  will not  comply with  the  RFR 
exposure  limits,  the  applicant   is  required  under   Section 
1.1307(b)  of  the  Rules  either  to  prepare  an  Environmental 
Assessment and undergo environmental  review by Commission  staff 
or to amend its application so as to comply with the RFR limits.7  
The Commission's Office of  Engineering and Technology  (``OET'') 
has prepared OET  Bulletin 65, ``Evaluating  Compliance with  FCC 
Guidelines for Human  Exposure to Radiofrequency  Electromagnetic 
Fields,'' to  provide  assistance to  applicants  in  determining 
whether proposed or  existing transmitting  facilities on  towers 
comply with the RFR exposure limits.  

     4.   On October 29, 2001,  the FCC's Denver, Colorado  Field 
Office (``Denver Office'') received a complaint alleging that  FM 
broadcast  station  KTMN  in  Cloudcroft,  New  Mexico,  was  not 
operating at the authorized power and was not in compliance  with 
the FCC's RFR tower guidelines due to the antenna's low radiation 
center above  ground  level  (``AGL'').  KTMN  is  authorized  to 
operate on frequency  97.9 MHz with  an effective radiated  power 
(``ERP'') of  100 kW  using a  Superior Broadcast  8-bay  antenna 
model with 0.75  wavelength spacing, operating  with a center  of 
radiation equal to 18 meters AGL.8  The station authorization for 
KTMN also includes  the following  special operating  conditions:  
(1) ``If  the  licensee  makes  any  changes  in  facilities  via 
modifications of license application in accordance with 47 C.F.R. 
73.1690(c), the subsequent Form 302-FM, application for  license, 
must include a revised RF field showing to demonstrate  continued 
compliance with the FCC  guidelines''; (2) ``Warning signs  which 
describe the  radiofrequency  electromagnetic (RF)  field  hazard 
must be posted at appropriate intervals.  These signs must be  at 
least 8 meters distant from the base of the tower.  Measures must 
be taken so that  persons who are authorized  access to the  site 
are not exposed to levels in excess of the FCC guidelines'';  and 
(3) ``The permittee/licensee in coordination with other users  of 
the site must  reduce power  or cease operation  as necessary  to 
protect persons having access to the site, tower or antenna  from 
radiofrequency  electromagnetic   fields   in   excess   of   FCC 
guidelines.''

     5.   The  complainant's  information   indicated  that   the 
antenna was placed significantly  lower on the antenna  structure 
than authorized.   Based on  pictures  of the  antenna  structure 
provided by the  complainant, it  appeared that  the antenna  was 
mounted only 13 meters AGL, rather than 18 meters AGL as required 
in  the   station  authorization.    Mathematical  RFR   modeling 
calculations performed by the Denver Office staff indicated  that 
operation of station KTMN  with the transmitting antenna  mounted 
only 13 meters AGL created a significant potential for RFR levels 
at the  base of  the tower  and  beyond in  excess of  the  FCC's 
exposure limits for the general  population set forth in  Section 
1.1310 of the Rules.    

     6.    On  November  14, 2001,  FCC  agents from  the  Denver 
Office conducted an inspection of the KTMN transmitting  facility 
in  Cloudcroft,   New  Mexico.    The  agents   found  the   KTMN 
transmitting antenna,  a Superior  Broadcast 8-bay  antenna  with 
0.75 wavelength spacing, side mounted approximately 13 meters AGL 
on a United States Forest  Service (``USFS'') fire lookout  tower 
at the authorized location.  The top bay of the antenna was level 
with the lookout platform.   RFR warning signs  were placed on  a 
2.5 meter tall ground fence  approximately three meters from  the 
base of the tower.  The lookout  tower was in a gated and  locked 
area approximately 30 meters from Forest Service Road 175  (``FSR 
175'').  The agents  also noted that  numerous vehicles used  FSR 
175 during the time that the agents were at the KTMN site. 

     7.   When the agents  arrived at the  transmitter site,  the 
station was not operating.  KTMN's owner subsequently advised the 
agents that  the station  had  been off  the  air for  one  week, 
following a November 7, 2001, electrical surge which affected the 
programming capabilities  of KTMN.   Due  to the  serious  public 
safety nature of  the allegations  in the  complaint, the  agents 
asked KTMN's owner to turn the transmitter on so that they  could 
take RFR measurements.  KTMN's owner turned the transmitter on to 
40% of  the  authorized  power  and  transmitted  an  unmodulated 
carrier (i.e., a radio signal with no programming material  being 
broadcast).  The owner  was not able  to achieve 100%  authorized 
power and admitted the most  the station ever achieved was  about 
60% of the  authorized power.  The  owner stated that  he had  no 
monitoring equipment or remote control for the station, but  that 
he  would  monitor  the  station  on  a  consumer-grade  portable 
receiver at his  residence in Alamogordo  to confirm the  station 
was on the air.  

     8.   At 40%  of  the  authorized  power,  the  agents  found 
publicly accessible  areas  outside  the  fence  surrounding  the 
lookout tower  that  significantly  exceeded the  FCC's  RFR  MPE 
limits  for  the  general  population.   The  agents  also  found 
numerous areas on the stairway of the lookout tower in excess  of 
both the  public and  the occupational  MPE limits.   Inside  the 
lookout platform, RFR fields exceeded the public MPE limits.   In 
particular, using spatially  averaged techniques  to measure  the 
RFR fields, the agents found the following: 

     Location           RFR as      RFR Public    % Over RFR 
                      Measured by   MPE  Limit    Public MPE 
                        Agents       (mW/cm2)9       Limit 
                       (mW/cm2)
20 to 60 feet from       0.63           0.2           315
tower base
Lookout tower            3.010          0.2          1500
stairway
Lookout platform          0.7           0.2           350
area

     9.   The temporary special use permit issued by the USFS  to 
the owner of A-O  expressly provided USFS personnel  unrestricted 
access to  the structure  and no  arrangements existed  for  USFS 
personnel to contact the licensee  when accessing the tower.   In 
addition, the  agents spoke  with USFS  personnel and  determined 
that USFS rangers with access  to the lookout tower stairway  and 
platform had no training with respect to RFR and no knowledge  of 
RFR  exposure  potential  from  the  radio  transmitting  antenna 
mounted just a few feet from their fire lookout.

     10.  The agents also found that KTMN had no main studio  and 
had no EAS equipment installed.  Upon arriving in Cloudcroft, the 
agents first attempted to locate  KTMN's main studio by going  to 
the addresses specified in A-O's construction permit and  license 
applications, but  they  did not  find  a main  studio  at  these 
locations.11   The  agents  also  searched  the  local  telephone 
directory but found no listing for KTMN or A-O.  A-O's owner  was 
not  present  at  the  KTMN  transmitter  site  when  the  agents 
initially arrived at the site.  When A-O's owner subsequently met 
the agents at the  transmitter site, he told  the agents that  he 
was temporarily using the transmitter building as a main  studio.  
However, the agents  observed that the  transmitter building  was 
contained within  the locked  fence that  surrounded the  lookout 
tower and  therefore  was  not  accessible  to  the  public.   In 
addition, the  agents noted  that  the transmitter  building  was 
filled with equipment and there was little room, if any, for more 
than one person to move around in the building.  Furthermore, the 
owner stated that he visited the  site every day, or every  other 
day, but had no other  personnel present at the transmitter  site 
when he  was not  there.  The  owner advised  the agents  that  a 
permanent studio was  being constructed  in downtown  Alamogordo, 
but the building was undergoing renovation.  The agents  observed 
EAS equipment in a  box in the transmitter  building, but no  EAS 
equipment was installed or operational.  The inspection  revealed 
numerous other rule  violations, including,  among other  things:  
failure to operate at the station at the minimum power of 90%  of 
the authorized power of 100 kW (47 C.F.R.  73.1560(b));  failure 
to  follow   the  minimum   operating  schedule   (47  C.F.R.    
73.1740(a)); failure to  post the  station license  (47 C.F.R.   
73.1230); failure  to designate  a chief  operator (47  C.F.R.   
73.1870(a)); and failure to maintain a public inspection file (47 
C.F.R.  73.3526). 

     11.  On November  21,  2001,  the  Denver  Office  issued  a 
warning letter  to  A-O  advising  A-O   that  KTMN  was  not  in 
compliance with RFR exposure  limits.  The letter requested  that 
prior to  KTMN's return  to operational  status, measurements  be 
made to determine the appropriate levels at which operation would 
comply with the FCC's  RFR limits at:  (1)  ground level; (2)  on 
the stairway leading to the  lookout; and (3) inside the  lookout 
platform area.

     12.  On December  5,  2001, A-O  submitted  a reply  to  the 
warning letter.  A-O stated that KTMN would take all  appropriate 
action to  comply with  the FCC's  RFR limits  and that  the  RFR 
problem would be best dealt  with by relocating the  transmitting 
facilities of  KTMN.   A-O's reply  also  stated that  both  KTMN 
personnel and USFS rangers had keys  to the locked gate and  that 
areas inside the fence would be kept below the public limits when 
any person accessed the lookout tower.  A-O further asserted that 
because a theoretical RFR analysis as outlined in OET Bulletin 65 
had been completed for KTMN and because the Commission granted A-
O a construction permit and license for KTMN after reviewing this 
analysis, the Commission  now had  no right to  penalize A-O  for 
violation of the RFR rules.

     13.  By letter dated November  20, 2001,12 A-O notified  the 
Commission that on November 7, 2001, KTMN ceased transmitting  as 
a result of a transient  failure of the station's computer.   A-O 
further stated that KTMN would remain silent in order to complete 
improved studio facilities  and to make  some adjustments to  its 
transmitting facilities and that if these matters caused KTMN  to 
remain silent for  longer than  30 days, A-O  would seek  special 
temporary  authority  (``STA'')  to  remain  silent  pursuant  to 
Sections 73.1635 and 73.1740 of the Rules.13  A-O filed a request 
for STA with the Media Bureau to permit KTMN to remain silent  on 
March 14, 2002,  approximately four months  after KTMN  suspended 
operations, and amended  its STA  request on June  10, 2002,  and 
again on June 21, 2002.  In  the STA request, A-O stated that  in 
November  2001,  the   Denver  Office   determined  that   KTMN's 
transmitting antenna on the USFS lookout tower created a risk  of 
excessive RF exposure to nearby  persons; that on March 4,  2002, 
the USFS  requested  that the  transmitter  and antenna  bays  be 
removed from the  authorized site;  and that  it was  negotiating 
with the USFS to relocate the transmitter to a new site.  On June 
25, 2002, the  Media Bureau granted  A-O STA for  KTMN to  remain 
silent through November 7, 2002.   On August 22, 2002, A-O  filed 
an application seeking authorization to relocate the  transmitter 
for KTMN to a new site.14

                        III.  Discussion

     14.  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 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.15  The term ``willful'' as used in  Section 
503(b) has  been interpreted  to  mean simply  that the  acts  or 
omissions are committed knowingly.16  The term ``repeated'' means 
that the violation occurred on more than one day.17

     15.  Section 1.1310  of  the  Rules  requires  licensees  to 
comply with RFR  exposure limits.18   Table 1  in Section  1.1310 
provides that the  MPE limit  for the general  population from  a 
radio station  operating in  the frequency  range 30-300  MHz  is 
0.200 mW/cm2 and  the MPE  limit for  occupational or  controlled 
exposure from a station  operating in this  frequency range is  1 
mW/cm2.  

     16.  A-O certified in  its construction  permit and  license 
applications that operation  of station KTMN  in Cloudcroft,  New 
Mexico would comply with the FCC's RFR exposure limits and  would 
not require  the  filing  of an  Environmental  Assessment.   The 
construction permit  for KTMN  authorized  A-O to  construct  the 
station with the antenna radiation center at 18 meters AGL.19  A-
O certified  in  its  application  for a  license  to  cover  the 
construction  permit  that   the  station   was  constructed   as 
authorized in  the construction  permit.   However, A-O  did  not 
construct KTMN as  authorized.20  The antenna  was mounted at  13 
meters AGL,  rather  than  the  authorized  18  meters  AGL.   In 
addition, the  license for  KTMN contained  special RF  operating 
conditions, including a requirement for a revised RF field  study 
in the event  of any modification  of the authorized  facilities.  
A-O did not  submit a  revised RF  study to  demonstrate that  an 
antenna mounted at 13 meters AGL would comply with the RFR limits 
as required by KTMN's license.  

     17.  The license for  KTMN also  included special  operating 
conditions requiring A-O to post RF warning signs at least  eight 
meters from the base  of the tower and  to reduce power or  cease 
operation as necessary  to protect persons  having access to  the 
site, tower or antenna from RFR  fields in excess of FCC  limits.  
A-O did not  comply with  these conditions.   Warning signs  were 
only found on a  fence three meters from  the base of the  tower.  
The USFS rangers that could access the tower and lookout were not 
informed of the RFR hazard  and were never instructed to  contact 
the licensee before accessing the stairway or lookout platform on 
the tower.   Additionally,  the  KTMN transmitter  site  was  not 
remote and was easily accessible to the general public.  

     18.  The USFS rangers who had access to the lookout tower on 
which KTMN's antenna was mounted had no training with respect  to 
RFR and no  knowledge of  the potential impact  of RFR  exposure.  
Absent such training  and knowledge, the  rangers are  considered 
members of the general population.  Furthermore, as noted  above, 
the area  surrounding  the  KTMN  transmitter  site  was  readily 
accessible to the general public.  Thus, the RFR exposure  limits 
for the general population set  forth in Section 1.1310 apply  in 
this case.   Based on  RFR  modeling of  the transmitter  at  the 
authorized  power  and  on-site   measurements  at  40%  of   the 
authorized power, FCC agents determined that operation of KTMN as 
constructed created  RFR fields  that exceeded  the RFR  exposure 
limits for the general population.  With the station operating at 
only  40%  of  the  authorized  power,21  the  FCC  agents  found 
spatially averaged RFR fields which were more than 300% over  the 
limits  for  maximum  permissible  exposure  by  the  public   at 
distances of 20  to 60  feet from the  base of  the tower,  which 
includes areas outside of the fence surrounding the lookout tower 
that were accessible to the general public and within the lookout 
platform.  In addition, the  agents found spatially averaged  RFR 
fields which were  more than  1500% over the  limits for  maximum 
permissible exposure by the public on the stairway leading to the 
lookout tower.  Given that the RFR fields exceeded the public MPE 
limits by more than 300% with  the station operating at only  40% 
of authorized power at the time of the inspection on November 14, 
2001, it is clear  that KTMN was not  in compliance with the  MPE 
limits during  its  operation  at  higher  power  levels  between 
October 5,  2001, when  the  license for  KTMN was  granted,  and 
November 7,  2001,  when  A-O  took  the  station  off  the  air.  
Accordingly, based on the  evidence before us,  we find that  A-O 
apparently willfully and  repeatedly violated  Section 1.1310  of 
the Rules during the period from October 5, 2001 and November  7, 
2001 by  exceeding  the  RFR  exposure  limits  for  the  general 
population and failing to take measures to adequately prevent the 
public from  accessing  areas  that  exceeded  the  RFR  exposure 
limits.

     19.  Section 11.35(a) of the Rules  states in part that  all 
broadcast  stations  are  ``responsible  for  ensuring  that  EAS 
Encoders, Decoders, and Attention Signal generating and receiving 
equipment  used  as  part  of  the  EAS  are  installed  so  that 
monitoring and transmitting  functions are  available during  the 
times that stations  ... are  in operation.''22  At  the time  of 
inspection, no  EAS equipment  was  installed or  operational  at 
station KTMN.  Based on the evidence, we find that A-O apparently 
willfully and repeatedly violated  Section 11.35(a) of the  Rules 
by failing to have EAS equipment installed and operational. 

     20.  Section 73.1125(a)  of the  Rules states  in part  that 
``[e]ach AM, FM, or  TV broadcast station  shall maintain a  main 
studio at  one  of  the  following  locations:   (1)  within  the 
station's community of  license; (2) at  any location within  the 
principal community  contour  of  any AM,  FM,  or  TV  Broadcast 
station licensed to  the station's community  of license; or  (3) 
within twenty-five miles  from the reference  coordinates of  the 
center  of   its   community   of   license   as   described   in 
73.208(a)(1).''23  In addition, the  station's main studio  must 
serve the needs and interests  of the residents of the  station's 
community of license.  To fulfill this function, a station  must, 
among other things,  maintain a meaningful  managerial and  staff 
presence at  its main  studio.24   The Commission  has  generally 
defined ``meaningful presence'' as full-time managerial and full-
time  staff  personnel  and  has   stated  that  there  must   be 
``management and  staff presence''  on a  full-time basis  during 
normal  business   hours  to   be  considered   ``meaningful.''25  
Further, with respect to management personnel, the Commission has 
stated that they need not be ``chained to their desks'' but  that 
they would be required to report to work at the main studio on  a 
daily basis, spend a  substantial amount of  time there, and  use 
the main studio as their  ``home base.''26  Although A-O's  owner 
stated that he was temporarily using KTMN's transmitter  building 
as a main  studio, it is  apparent that KRMN  had no main  studio 
presence in the  community at  the time of  the inspection.   The 
transmitter building  was contained  within  a locked  fence  and 
therefore was inaccessible to the public; there was little  room, 
if  any,  for  more  than  one  person  to  move  around  in  the 
transmitter building; there was no listing for KTMN or A-O in the 
local telephone  directory; and  there was  no public  inspection 
file.  Moreover, A-O did not maintain a meaningful management and 
staff presence at  the transmitter site.   In this regard,  A-O's 
owner told the  agents that  he visited  the site  every day,  or 
every other  day,  but had  no  other personnel  present  at  the 
transmitter site when he was not there.  Therefore, based on  the 
evidence, we conclude that A-O  failed to maintain a main  studio 
in apparent willful and repeated violation of Section 73.1125  of 
the Rules.27  

     21.  Licensees are  also  responsible  for  operating  their 
broadcast stations  within  tolerances  specified  by  applicable 
technical rules contained in this part and in accordance with the 
terms of the station authorization.  Section 73.1400 of the Rules 
allows  stations  to   employ  various  methods   or  levels   of 
transmission system monitoring and  supervision to preclude  out-
of-tolerance  operation  and  to   ensure  compliance  with   the 
transmission system control requirements of Section 73.1350.   At 
the time of the inspection, A-O's owner admitted that he did  not 
have ongoing supervision of the transmission system by a  station 
employee or other person designated by the licensee, did not have 
an automatic transmission system to alert a contact person in the 
event of  a technical  malfunction,  and did  not have  a  remote 
control whereby the  transmission system could  be monitored  and 
controlled  for  compliance  with  Section  73.1350.   Use  of  a 
consumer-grade portable receiver  to tune into  the station  does 
not  meet  the   transmission  system   monitoring  and   control 
requirements of  Section  73.1400.   Based on  the  evidence,  we 
further  find  that  A-O  apparently  willfully  and   repeatedly 
violated Section 73.1400 of the Rules by failing to have adequate 
transmission system monitoring and control.  

     22.  The  Commission's  Forfeiture   Policy  Statement   and 
Amendment of  Section 1.80(b)  of the  Rules to  Incorporate  the 
Forfeiture Guidelines  (``Forfeiture Policy  Statement'')28  does 
not specify a base  forfeiture for violation  of the RFR  maximum 
permissible exposure limits  for transmitting  tower antennas  in 
Section 1.1310.29  However,  the FCC  has set  a base  forfeiture 
amount of $10,000 for failure to comply with other public  safety 
related rules,  such  as prescribed  antenna  structure  lighting 
and/or marking rules related to public and private air navigation 
safety.  Based on  the public  safety nature of  the RFR  maximum 
permissible exposure limits, we  conclude that a base  forfeiture 
amount of $10,000  for failure  to comply with  the RFR  exposure 
limits is appropriate.   The Forfeiture Policy  Statement sets  a 
base forfeiture  amount  of $8,000  for  failure to  install  EAS 
equipment,30 a base amount  of $7,000 for  failure to maintain  a 
main studio,31  and a  base  amount of  $3,000 for  violation  of 
transmitter control and metering requirements.32  Thus, the total 
base forfeiture amount for all of A-O's violations is $28,000.

     23.  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,33   which   include   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.  We  believe that  the seriousness  of  the 
safety violations,  including the  high levels  of RFR  resulting 
from A-O's  failure to  construct the  station according  to  the 
terms of  the license  and  failure to  comply with  the  special 
operating conditions,  coupled with  the  lack of  installed  and 
operational EAS equipment, failure to maintain a main studio, and 
failure to maintain positive control of the transmitter,  warrant 
the proposed  $28,000 forfeiture  amount.  Accordingly,  applying 
the Forfeiture  Policy Statement  and  statutory factors  to  the 
instant case, we  conclude that  A-O is apparently  liable for  a 
$28,000 forfeiture.

                      IV.  Ordering Clauses

     24.  Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b)  of  the  Act,  and  Section  1.80  of  the  Rules,34  A-O 
Broadcasting Corp., is hereby NOTIFIED of its APPARENT  LIABILITY 
FOR A FORFEITURE in the  amount of twenty-eight thousand  dollars 
($28,000) for willfully and repeatedly violating Sections 1.1310, 
11.35, 73.1125, and 73.1400 of the Rules.

     25.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Rules, within thirty days of the release date of this  NOTICE 
OF APPARENT LIABILITY, A-O Broadcasting Corp., SHALL PAY the full 
amount of  the  proposed  forfeiture  or  SHALL  FILE  a  written 
statement seeking  reduction  or  cancellation  of  the  proposed 
forfeiture.

     26.  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. 

     27.  The response, if any, must  be mailed to the 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  the 
NAL/Acct. No.  referenced in the caption.

     28.  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.

     29.  Requests for payment of the full amount of this  Notice 
of Apparent Liability  under an installment  plan should be  sent 
to: Chief,  Revenue and  Receivable  Operations Group,  445  12th 
Street, S.W., Washington, D.C. 20554.35

     30.       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 Enforcement Bureau -  Technical 
and Public Safety Division.   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 (202) 418-0990.

     31.  

     32.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall  be  sent  by  Certified  Mail,  Return 
Receipt Requested to A-O  Broadcasting Corp., Attention:   Robert 
Flotte, 3001 North Florida Avenue, Alamogordo, New Mexico  88310-
9794, and its counsel,  Paul Brown, Esq.,  Wood, Maines &  Brown, 
Chartered, 1827 Jefferson Place, N.W., Washington, D.C. 20036.



                                FEDERAL COMMUNICATIONS 
COMMISSION



                                Marlene H. Dortch
                                Secretary






















                                                     October 2002


                FCC List of Small Entities

   As described below, a ``small entity'' may be a small 
                       organization,
  a small governmental jurisdiction, or a small business.

(1)  Small Organization 
Any not-for-profit enterprise that is independently owned 
and operated and 
is not dominant in its field.

  
(2)  Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages, 
school districts, or 
special districts, with a population of less than fifty 
thousand.


(3)  Small Business
Any business concern that is independently owned and 
operated and 
is not dominant in its field, and meets the pertinent size 
criterion described below.
  

      Industry Type          Description of Small Business 
                                     Size Standards
                 Cable Services or Systems
                            Special Size Standard - 
Cable Systems                Small Cable Company has 400,000 
                            Subscribers Nationwide or Fewer
Cable and Other Program 
Distribution                     $12.5 Million in Annual 
                                    Receipts or Less

Open Video Systems 
       Common Carrier Services and Related Entities
Wireline Carriers and 
Service providers 
                                1,500 Employees or Fewer
Local Exchange Carriers, 
Competitive Access 
Providers, Interexchange 
Carriers, Operator Service 
Providers, Payphone 
Providers, and Resellers

Note:  With the exception of Cable Systems, all size 
standards are expressed in either millions of dollars or 
number of employees and are generally the average annual 
receipts or the average employment of a firm.  Directions 
for calculating average annual receipts and average 
employment of a firm can be found in 
13 C.F.R. 121.104 and 13 C.F.R.  121.106, respectively.

                  International Services
International Broadcast 
Stations
                                $12.5 Million in Annual 
                                    Receipts or Less






International Public Fixed 
Radio (Public and Control 
Stations)
Fixed Satellite 
Transmit/Receive Earth 
Stations
Fixed Satellite Very Small 
Aperture Terminal Systems
Mobile Satellite Earth 
Stations
Radio Determination 
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space 
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
                    Mass Media Services
Television Services

                             $12 Million in Annual Receipts 
                                        or Less
Low Power Television 
Services and Television 
Translator Stations
TV Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Radio Services
                             $6 Million in Annual Receipts 
                                        or Less
Radio Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Multipoint Distribution      Auction Special Size Standard -
Service                      Small Business is less than 
                            $40M in annual gross revenues 
                            for three preceding years
          Wireless and Commercial Mobile Services
Cellular Licensees
                                1,500 Employees or Fewer
220 MHz Radio Service - 
Phase I Licensees
220 MHz Radio Service -      Auction special size standard -
Phase II Licensees           Small Business is average gross 
                            revenues of $15M or less for 
                            the preceding three years 
                            (includes affiliates and 
                            controlling principals)
                            Very Small Business is average 
                            gross revenues of $3M or less 
                            for the preceding three years 
                            (includes affiliates and 
                            controlling principals)
700 MHZ Guard Band Licensees


Private and Common Carrier 
Paging
Broadband Personal 
Communications Services          1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal           Auction special size standard -
Communications Services      Small Business is $40M or less 
(Block C)                    in annual gross revenues for 
                            three previous calendar years
                            Very Small Business is average 
                            gross revenues of $15M or less 
                            for the preceding three 
                            calendar years (includes 
                            affiliates and persons or 
                            entities that hold interest in 
                            such entity and their 
                            affiliates)
Broadband Personal 
Communications Services 
(Block F)
Narrowband Personal 
Communications Services


Rural Radiotelephone Service     1,500 Employees or Fewer
Air-Ground Radiotelephone 
Service
800 MHz Specialized Mobile   Auction special size standard -
Radio                        Small Business is $15M or less 
                            average annual gross revenues 
                            for three preceding calendar 
                            years
900 MHz Specialized Mobile 
Radio
Private Land Mobile Radio        1,500 Employees or Fewer
Amateur Radio Service                      N/A
Aviation and Marine Radio 
Service                          1,500 Employees or Fewer
Fixed Microwave Services
                            Small Business is 1,500 
Public Safety Radio Services employees or less
                            Small Government Entities has 
                            population of less than 50,000 
                            persons
Wireless Telephony and 
Paging and Messaging             1,500 Employees or Fewer
Personal Radio Services                    N/A
Offshore Radiotelephone          1,500 Employees or Fewer
Service
Wireless Communications      Small Business is $40M or less 
Services                     average annual gross revenues 
                            for three preceding years
                            Very Small Business is average 
                            gross revenues of $15M or less 
                            for the preceding three years 

39 GHz Service
                            Auction special size standard 
                            (1996) -
Multipoint Distribution      Small Business is $40M or less 
Service                      average annual gross revenues 
                            for three preceding calendar 
                            years
                            Prior to Auction -
                            Small Business has annual 
                            revenue of $12.5M or less
Multichannel Multipoint 
Distribution Service             $12.5 Million in Annual 
                                    Receipts or Less
Instructional Television 
Fixed Service
                            Auction special size standard 
                            (1998) -
Local Multipoint             Small Business is $40M or less 
Distribution Service         average annual gross revenues 
                            for three preceding years
                            Very Small Business is average 
                            gross revenues of $15M or less 
                            for the preceding three years 
                            First Auction special size 
                            standard (1994) -
                            Small Business is an entity 
                            that, together with its 
                            affiliates, has no more than a 
218-219 MHZ Service          $6M net worth and, after 
                            federal income taxes (excluding 
                            carryover losses) has no more 
                            than $2M in annual profits each 
                            year for the previous two years
                            New Standard - 
                            Small Business is average gross 
                            revenues of $15M or less for 
                            the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
                            Very Small Business is average 
                            gross revenues of $3M or less 
                            for the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
Satellite Master Antenna 
Television Systems               $12.5 Million in Annual 
                                    Receipts or Less
24 GHz - Incumbent Licensees     1,500 Employees or Fewer
24 GHz - Future Licensees    Small Business is average gross 
                            revenues of $15M or less for 
                            the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
                            Very Small Business is average 
                            gross revenues of $3M or less 
                            for the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
                       Miscellaneous
On-Line Information Services  $18 Million in Annual Receipts 
                                        or Less
Radio and Television 
Broadcasting and Wireless 
Communications Equipment          750 Employees or Fewer
Manufacturers
Audio and Video Equipment 
Manufacturers
Telephone Apparatus 
Manufacturers (Except            1,000 Employees or Fewer
Cellular)
Medical Implant Device            500 Employees or Fewer
Manufacturers
Hospitals                     $29 Million in Annual Receipts 
                                        or Less
Nursing Homes                    $11.5 Million in Annual 
                                    Receipts or Less
Hotels and Motels             $6 Million in Annual Receipts 
                                        or Less
Tower Owners                 (See Lessee's Type of Business)



_________________________

1   47 C.F.R.  1.1310, 11.35, 73.1125, and 73.1400.

2   47 U.S.C.  503(b).

  3  Guidelines  for  Evaluating  the  Environmental  Effects  of 
Radiofrequency Radiation, Report and Order, ET Docket No.  93-62, 
11 FCC Rcd 15123 (1996), recon. granted in part, First Memorandum 
Opinion and Order,  11 FCC  Rcd 17512 (1996),  recon. granted  in 
part, Second Memorandum Opinion and Order and Notice of  Proposed 
Rulemaking, 12 FCC Rcd 13494 (1997).

  4  See  47 C.F.R.    1.1310,  Table 1.   The  MPE  limits  are 
generally based on recommended  exposure guidelines published  by 
the National  Council on  Radiation Protection  and  Measurements 
(``NCRP'') in  ``Biological  Effects and  Exposure  Criteria  for 
Radiofrequency Electromagnetic  Fields,''  NCRP  Report  No.  86, 
Sections 17.4.1, 17.4.1.1.,  17.4.2, and 17.4.3  (1986).  In  the 
frequency range from 100 MHz to 1500 MHz, the MPE limits are also 
generally based on guidelines contained in the RF safety standard 
developed  by  the  Institute   of  Electrical  and   Electronics 
Engineers, Inc. (``IEEE'') and  adopted by the American  National 
Standards Institute (``ANSI'') in Section 4.1 of ``IEEE  Standard 
for Safety  Levels  with  Respect  to  Human  Exposure  to  Radio 
Frequency Electromagnetic Fields, 3  kHz to 300 GHz,''  ANSI/IEEE 
C95.1-1992 (1992).  

  5 47 C.F.R.  1.1310, Note 1 to Table 1.  

  6 47 C.F.R.  1.1310, Note 2 to Table 1.  

  7 47 C.F.R.  1.1307(b).

8   The former Mass Media Bureau granted A-O's application for  a 
license to  cover the  construction permit  for Station  KTMN  on 
October 5, 2001 (File No. BLH-20010924AAM).  

  9 This  is the MPE limit for  the general population set  forth 
in Section 1.1310 of  the Rules for  radio stations operating  in 
the frequency range 30-300 MHz.   KTMN is licensed to operate  on 
97.9 MHz.

10  This  value was the  maximum limit of  the meter, Narda  8718 
and Type 8722 probe combination.

  11  One of  these locations  was a  private residence  formerly 
owned by  A-O's owner,  while  the other  was a  retirement  home 
managed by A-O's owner.

  12 The Commission received this letter on January 9, 2002.

  13 47 C.F.R.  73.1635 and 73.1740.  Section 73.1740(a)(3)  of 
the Rules provides that if  causes beyond the licensee's  control 
make  it  impossible  to  continue  operating,  the  station  may 
discontinue operation  for  a period  of  no more  than  30  days 
without  further  authorization  from  the  FCC.   However,   the 
licensee must notify the FCC no later than the tenth day after it 
discontinues operation.  In  addition, if the  causes beyond  the 
control of the  licensee make it  impossible to resume  operation 
within the  30-day  period,  the licensee  must  make  a  written 
request for such additional  time as may  be deemed necessary  no 
later than the 30th day.  47 C.F.R.  73.1740(a)(3).

  14 File No. BPH-20020822AAC.

15  47 U.S.C.  503(b).

16  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).

  17  Section 312(f)(2)  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 U.S.C.  312(f)(2).

18  47 C.F.R.  1.1310.

  19  The former  Mass Media  Bureau granted  A-O's  construction 
permit  application  on  September   24,  1998  (File  No.   BPH-
19971030MG).

  20 Because  A-O did  not construct  KTMN as  authorized in  the 
construction permit, we  reject A-O's  claim in  response to  the 
Denver Office's  warning letter  that the  Commission cannot  now 
penalize it for  violation of  the RFR  rules.  The  Commission's 
review of the RFR  analysis provided by  A-O in its  construction 
permit application  was based  on A-O's  representation that  the 
antenna would be  mounted with  a center of  radiation 18  meters 
AGL.

  21  A-O  indicated  that it  had  operated  at  up  to  60%  of 
authorized power.  We use the  lower 40% figure because that  was 
the power when  the staff  took measurements.   The RF  radiation 
problem would have been even  worse when the station operated  at 
41%-60% of authorized power.

  22 47 C.F.R.  11.35(a).

  23 47 C.F.R.  73.1125(a).

24  See Main  Studio and  Program Origination  Rules, 2  FCC  Rcd 
3215, 3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).

  25  Jones Eastern of  the Outer  Banks, Inc., 6  FCC Rcd  3615, 
3616  (1991),  clarified,   7  FCC  Rcd   6800  (1992)   (``Jones 
Eastern'').

  26 Jones Eastern, 7 FCC Rcd at 6802.

  27 See  B&C Kentucky, LLC,  16 FCC Rcd  9305 (Mass Media  Bur., 
Video  Services  Div.,  2001)   (concluding  that  a   television 
licensee's transmitter building  was not a  main studio where  no 
employees  regularly  worked  at  that  location,  no  production 
equipment  or  station  files  were  maintained  there,  and  the 
building was contained  within a locked  fence and therefore  was 
inaccessible to the public).

28   12 FCC  Rcd  17087 (1997),  recon  denied, 15  FCC  Rcd  303 
(1999).

  29  The fact  that the  Forfeiture  Policy Statement  does  not 
specify a base amount does not indicate that no forfeiture should 
be imposed.  The  Forfeiture Policy Statement  states that  ``... 
any  omission  of  a  specific   rule  violation  from  the   ... 
[forfeiture guidelines] ... should not signal that the Commission 
considers any unlisted violation  as nonexistent or  unimportant.  
Forfeiture Policy Statement, 12 FCC Rcd at 17099.  The Commission 
retains the discretion, moreover,  to depart from the  Forfeiture 
Policy Statement and issue  forfeitures on a case?by?case  basis, 
under its general forfeiture  authority contained in Section  503 
of the Act.  Id.

  30 See e.g., Marie  L. Salazar, 17 FCC Rcd 14090, 14093  (2002) 
(``Salazar'') (proposing  an  $8,000 forfeiture  for  failure  to 
install  and   maintain   operational  EAS   equipment);   Arnold 
Broadcasting Company,  Inc.,  16  FCC  Rcd  13600,  13602  (2001) 
(``Arnold'') (assessing  an  $8,000  forfeiture  for  failure  to 
install and maintain operational EAS equipment).

  31 See e.g., Salazar,  17 FCC Rcd at 14093 (proposing a  $7,000 
forfeiture for  violation  of  the main  studio  rule);  American 
Broadcasting Education  Foundation, 15  FCC Rcd  8630 (Enf.  Bur. 
2000) (assessing a  $7,000 forfeiture for  violation of the  main 
studio rule).

  32 Arnold, 16 FCC  Rcd at 13602; Rego, Inc., 16 FCC Rcd  16795, 
16797 (Enf. Bur., 2001) (both  assessing a $3,000 forfeiture  for 
violation of transmitter control requirements).

33  47 U.S.C.  503(b).

  34 47 C.F.R.  1.80.

35 See 47 C.F.R.  1.1914.