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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
AGM-Nevada, LLC )
Licensee of Station WMV815 ) File No. EB-02-DV-067
Albuquerque, New Mexico )
Facility ID # 25529 ) and
Licensee of Station WMW873 ) File No. EB-02-DV-071
Albuquerque, New Mexico )
Facility ID # 51762 ) and
Licensee of Station KYLZ-FM1 ) File No. EB-02-DV-072
Albuquerque, New Mexico )
Facility ID # 82812 ) NAL/Acct. No. 200232800012
) FRN 0005-7738-90
Adopted: January 30, 2003 Released: February 3,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of nine thousand six hundred
dollars ($9,600) to AGM-Nevada, LLC (``AGM''), licensee of
booster station KYLZ-FM1, and former licensee of aural studio-
to-transmitter link (``STL'') stations WMV815 and WMW873 in
Albuquerque, New Mexico,1 for willful and repeated violation
of Section 74.551(a)(3) of the Commission's Rules (``Rules'')
and willful violation of Section 74.1235(e) of the Rules.2
The noted violations involve AGM's operation of WMV815 and
WMW873 from an unauthorized location and AGM's operation of
KYLZ-FM1 in excess of authorized transmitter power output
2. On June 28, 2002, the Commission's Denver, Colorado
Field Office (``Denver Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to AGM for a forfeiture in
the amount of twelve thousand dollars ($12,000).3 AGM filed a
response to the NAL on July 25, 2002.4
3. On March 26, 2001, the Denver Office received a
complaint alleging that AGM's booster stations KLVO-FM1 and
KYLZ-FM1 in Albuquerque were causing adjacent channel
interference to two FM stations licensed to Albuquerque.
4. On April 17, 2001, an agent from the Denver Office
inspected KLVO-FM and its booster station KLVO-FM1 and KYLZ-
FM1. The agent did not observe any interference from these
stations at the time of the inspection. However, the agent
found that KYLZ-FM1 was operating with excessive TPO. KYLZ-
FM1 is authorized to operate with a TPO of 1,800 watts. At
the time of the inspection, the calculated TPO was 2,280 watts
or 127% of the authorized TPO. The agent also found that the
two STL stations, WMV815 and WMW873, were operating from an
unauthorized location. The licenses for WMV815 and WMW873
both specified a transmitter address of 300 San Mateo Avenue
in Albuquerque. At the time of the inspection, the STL
transmitters were located at 4125 Carlisle Street in
Albuquerque. According to an AGM employee, AGM relocated its
main studio for KYLZ-FM and KLVO-FM and the two STL
transmitters from 300 San Mateo Avenue to 4125 Carlisle Street
in approximately December 1998.
5. On June 27, 2002, the Denver Office issued an NAL to
AGM for a $12,000 forfeiture for operating WMV815 and WMW873
from unauthorized locations in willful and repeated violation
of Section 74.551(a)(3) of the Rules and operating KYLZ-FM1 in
excess of authorized TPO limits in willful violation of
Section 74.1235(e) of the Rules. In its response to the NAL,
AGM does not dispute that it violated these rules. However,
AGM requests cancellation or reduction of the forfeiture
proposed in the NAL. AGM asserts that it was aware that the
STL stations were not in compliance with the rules and that it
was in the process of correcting the violations of Section
74.551(a)(3) at the time of the April 17, 2001 inspection. In
this regard, AGM states that it sought and received a
frequency coordination authorization, dated March 22, 2001,
from the New Mexico Radio Broadcasters frequency coordinator
and that it was preparing FCC Forms 601 for a number of its
STL facilities operating in the Albuquerque area reflecting
the results of the coordination report at the time of the
inspection. AGM further states that on May 1, 2001, it filed
applications for new STL stations for KYLZ-FM and KLVO-FM and
commenced initial operations with facilities specified in
these applications under the authority set forth in Section
74.24 of the Rules.5 The Commission staff granted these
applications on July 13, 2001.6 AGM also asserts that the STL
station violations were minor because they involved only the
transmit point address, that there were no complaints of
interference regarding the STL station operations, and that
there is no showing that the public interest was harmed by the
shift in the transmit point. In addition, AGM argues that the
violation of Section 74.1235(e) by KYLZ-FM1 was an isolated
incident and that the station caused no interference during
the brief period of the violation. Finally, AGM asserts that
it has an overall record of compliance with the Commission's
6. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),7 Section 1.80 of the Rules,8 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 AGM'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
7. Section 74.551(a)(3) of the Rules provides that prior
Commission approval is required for a change in the location
of a transmitter or transmitting antenna for an aural STL
station, except when the relocation of the transmitter is
within the same building. AGM does not dispute that it
relocated the STL transmitters without prior Commission
authorization and operated the STL transmitters from an
unauthorized location. Accordingly, we find that AGM
willfully10 and repeatedly11 violated Section 74.551(a)(3) of
8. AGM asserts that it was in the process of correcting
the violations of Section 74.551(a)(3) at the time of the
April 17, 2001 inspection. However, AGM offers no explanation
as to why it did not seek prior Commission approval to
relocate the STL transmitters or why it operated the STL
transmitters for more than two years at an unauthorized
location before taking corrective action. Moreover, while AGM
apparently did seek frequency coordination for the STLs prior
to the inspection, it did not file appropriate applications
with the Commission until after the inspection.12 AGM does
not explain why it did not bring the matter to the
Commission's attention or request special temporary authority
to operate the STL transmitters from the new location at the
same time it began seeking frequency coordination. Under
these circumstances, we do not believe that any reduction of
the forfeitures proposed for these violations on this basis is
warranted. We also do not believe that AGM's operation of the
STL stations at an unauthorized location for more than two
years are ``minor'' violations, warranting reduction of the
forfeiture amount. Further, the absence of interference or
any showing of harm to the public interest does not entitle
AGM to a reduction of the proposed forfeitures under the
Commission's downward adjustment criteria for forfeitures.13
9. Section 74.1235(e) of the Rules provides that FM
booster stations may not be operated with a TPO in excess of
105% of the authorized TPO. KYLZ-FM1 was authorized to
operate with a TPO of 1,800 watts. AGM does not dispute that
at the time of the inspection, KYLZ-FM1 was operating with a
TPO of 2,280 watts, which is 127% of the authorized TPO.
Accordingly, we conclude that AGM willfully violated Section
74.1235(e) of the Rules. As noted above, the absence of
interference does not entitle AGM to a reduction of the
forfeiture amount proposed for this violation under the
downward adjustment criteria. Moreover, Section 74.1235(e)
provides FM booster stations some leeway, allowing them to
operate with a TPO of up to 105% of the authorized TPO. In
this case, however, the station was operating with a TPO which
was substantially in excess of the authorized TPO.
Nevertheless, after considering AGM's history of overall
compliance with the Commission's rules, we reduce the total
forfeiture amount proposed in the NAL for AGM's violations of
Sections 74.551(a)(3) and 74.1235(e) from $12,000 to $9,600.
10. We have examined AGM's response to the NAL pursuant to
the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that AGM willfully and repeatedly violated Section
74.551(a)(3) of the Rules and willfully violated Section
74.1235(e) of the Rules, but we reduce the forfeiture proposed
for these violations from $12,000 to $9,600.
IV. ORDERING CLAUSES
11. 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,14 AGM-Nevada, LLC IS LIABLE FOR A MONETARY
FORFEITURE in the amount of nine thousand six hundred dollars
($9,600) for willful and repeated violation of Section
74.551(a)(3) of the Rules and willful violation of Section
74.1235(e) of the Rules.
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.15 Payment may 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 reference NAL/Acct. No. 200232800012 and FRN
0005-7738-90. 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.
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to AGM-Nevada, LLC, P.O. Box 2700, Bakersfield,
California 93303, and to its counsel, John S. Neely, Esq.,
Miller & Miller, P.C., P.O. Box 33003, Washington, D.C. 20033.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 An aural STL station is a fixed station for the transmission
of aural program material between the studio and the transmitter
of a broadcasting station. See 47 C.F.R. § 74.501(a). At the
time of the violations, WMV815 and WMW873 were STLs for KYLZ-FM
and KLVO-FM, respectively, which are both licensed to AGM.
2 47 C.F.R. §§ 74.551(a)(3) and 74.1235(e).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232800012 (Enf. Bur., Denver Office, released June 28, 2002).
4 AGM's pleading was captioned as a ``petition for
reconsideration,'' rather than a response to the NAL. Consistent
with Section 1.80(f)(3) of the Rules, 47 C.F.R. § 1.80(f)(3), we
will treat this pleading as a response to the NAL.
5 Section 74.24 of the Rules provides that certain types of
broadcast auxiliary stations, including aural STL stations, may
be operated on a short-term basis under the authority conveyed by
a Part 73 license without prior Commission authorization,
provided that certain conditions are met. 47 C.F.R. § 74.24.
6 File Nos. 0000445207 and 0000444921.
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
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,'
... 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).
11 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
also applies to forfeitures assessed pursuant to Section 503(b)
of the Act, provides that ``[t]he term `repeated,' ... means the
commission or omission of such act more than once or, if such
commission or omission is continuous, for more than one day.''
12 The Commission has stated that remedial actions taken to
correct a violation, while commendable, are not mitigating
factors warranting reduction of a forfeiture. See Station KGVL,
Inc., 42 FCC 2d 258, 259 (1973).
13 Policy Statement, 12 FCC Rcd at 17113; 47 C.F.R. § 1.80(b),
Note to paragraph b(4): Section II.-Adjustment Criteria for
Section 503 Forfeitures. See also Dickenson County Broadcasting
Corporation, 68 FCC 2d 1510 (1977) and Page-Comm, 16 FCC Rcd 6842
(Enf. Bur., 2001) (both finding that an absence of interference
is not a mitigating factor warranting reduction of a forfeiture).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.