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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
American Family Association ) File No. EB-02-KC-236
) NAL/Acct. No. 200232560005
Licensee of Station KBKC-FM ) FRN 0005-0259-11
Moberly, Missouri )
MEMORANDUM OPINION AND ORDER
Adopted: February 14, 2003 Released: February 18,
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny a petition for reconsideration filed by American Family
Association (``AFA''), licensee of Station KBKC-FM, Moberly,
Missouri, of a Forfeiture Order1 issued in this proceeding.
The Forfeiture Order issued a $5,000 forfeiture to AFA for
operating Station KBKC without a main studio in willful
violation of Section 73.1125 of the Commission's Rules
2. On April 8, 2002, an FCC agent from the Kansas City
Office attempted an inspection of Station KBKC-FM, which is
licensed to AFA in Moberly, Missouri. Investigation revealed
no listing for the station in the local telephone directories.
The agent went to the station's transmitter site and found a
sign on the tower with the phone number 662-844-8888. The
agent called this number and spoke with two AFA employees in
Tupelo, Mississippi. These AFA employees stated that there
was no main studio for KBKC and that the station's public
inspection file was located at the Little Dixie Regional
Library in Moberly. The agent inspected the public inspection
file and did not find a grant of a waiver of the main studio
rule for the station in the file. A subsequent search of
Commission records revealed that AFA had not been granted a
waiver of the main studio rule for KBKC.
3. On May 28, 2002, the Kansas City Office issued a Notice
of Apparent Liability for Forfeiture (``NAL'') for a $7,000
forfeiture to AFA for apparently failing to maintain a main
studio for KBKC in willful violation of Section 73.1125 of the
Rules.3 In its response to the NAL, AFA acknowledged that it
did not have either a main studio for KBKC or a waiver of the
main studio rule at the time of the inspection, but requested
cancellation of the forfeiture or reduction of the forfeiture
to a lesser amount. In the Forfeiture Order, we reduced the
forfeiture to $5,000 because AFA disclosed to Commission staff
in February 2002 that it was operating KBKC as a satellite
station without a waiver of the main studio rule; however, we
rejected the other arguments advanced by AFA in support of its
request for cancellation or reduction of the forfeiture.4
4. In its petition for reconsideration, AFA argues that
its violation of the main studio rule should be considered
minor because it was in fact fulfilling its local service
obligation. Specifically, AFA asserts that in the 59
instances where it has previously been granted a waiver of the
main studio rule, Commission staff has required implementation
of certain measures to ensure that the station will meet its
local service obligation, including (1) adding to AFA's
advisory board at least one resident from the station's city
of license to provide recommendations on community needs and
programming; (2) soliciting listeners' opinions every six
months regarding community issues that should be addressed;
(3) providing periodic local programming for the community;
and (4) maintaining a toll-free number and a public inspection
file for the station within the community of license.
According to AFA, all of these measures were in place in
Moberly at the time of the inspection. AFA also asserts that
imposition of a $5,000 forfeiture will have a devastating
financial effect on KBKC, which is a small noncommercial
educational station located in a rural community.
Furthermore, AFA asserts that it has a history of overall
compliance with the Commission's rules. Based on these
factors, AFA argues that the forfeiture should be reduced to
5. We reject AFA's argument that its violation of the main
studio rule should be considered a minor violation. We do not
believe that AFA's implementation of measures required by
Commission staff in other prior waiver cases renders its
failure in this case either to maintain a main studio for KBKC
in Moberly or to seek a main studio waiver for KBKC a minor
violation. In any event, contrary to AFA's assertion, not all
of these measures were in place in Moberly at the time of the
inspection. In particular, we note that the phone number
posted at KBKC's transmitter site, 662-844-8888, was not in
fact a toll-free number for Moberly residents.5
6. AFA also asserts that imposition of a $5,000 forfeiture
will have a devastating financial effect on KBKC. However, as
stated in the NAL, 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. AFA provided no financial
documentation in support of its assertion that the $5,000 will
impose a financial hardship on it and therefore we have no
basis upon which to analyze its request for reduction of the
forfeiture. We also note that the Commission has concluded
that it is appropriate to take into account ``income derived
from other affiliated operations, as well as the financial
status of the station(s) in question'' in determining an
entity's ability to pay a forfeiture.6 Thus, in assessing
AFA's financial hardship claim, we would evaluate the ability
of AFA to pay the forfeiture, rather than that of KBKC alone.
7. Finally, AFA asserts that it has a history of overall
compliance with the Commission's rules. However, we note that
in March 2000, the Commission's Columbia, Maryland Field
Office issued a Notice of Violation to AFA for several rule
violations at WARN-FM, Culpeper, Virginia, including
violations of the Emergency Alert System (``EAS'') rules and
operation of WARN with transmitter output power in excess of
its authorized power.7 In addition, in October 2002, AFA
admitted that it violated the public inspection file rule at
KAUF-FM, Kennett, Missouri.8 In light of these other recent
rule violations, we are not persuaded that a reduction of the
forfeiture in this case based on AFA's history of compliance
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section
1.106 of the Rules,9 the petition for reconsideration filed by
American Family Association IS DENIED.
9. 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 Communications Act of 1934, as amended.10
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. 200232560005 and FRN 0005-0259-11. 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. 20554.11
10. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to Patrick J. Vaughn, Esq., American Family
Association, P.O. Drawer 2440, Tupelo, Mississippi 38803.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 American Family Association, 17 FCC Rcd 18135 (Enf. Bur.
2 47 C.F.R. § 73.1125.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232560005 (Enf. Bur., Kansas City Office, released May 28,
4 17 FCC Rcd at 18137.
5 This telephone number reaches AFA offices in Tupelo,
Mississippi, which is approximately 523 miles away from Moberly.
Thus, it is clearly not a local telephone number either.
6 See KASA Radio Hogar, Inc., 17 FCC Rcd 6256 (2002) (quoting
Emery Telephone, 13 FCC Rcd 23854, 23859-60 (1998), recon.
denied, 15 FCC Rcd 7181 (1999)).
7 On March 21, 2000, the Columbia Office issued an NOV to AFA
for the following violations at WARN-FM: Sections 11.52(d)
(failure to monitor two EAS sources), 11.61(b) (failure to log
EAS tests received), 73.1560(b) (failure to maintain the
transmitter output power between 90% and 105% of the authorized
power), and 73.1870(c)(3) (failure to have the chief operator
review the station logs at least once each week to determine if
the required entries are made correctly). File No. EB-99-CF-035.
In its response to this NOV, submitted on April 3, 2002, AFA
acknowledged that it violated these rules.
8 On September 23, 2002, the Kansas City Office issued an NAL
for a $9,000 forfeiture to AFA for violations of Sections
11.35(a) (failure to maintain operational EAS equipment) and
73.3527(e) (failure to maintain all required items in the
station's public file) at KAUF-FM. Notice of Apparent Liability
for Forfeiture, NAL/Acct. No. 200232560027 (Enf. Bur., released
September 23, 2002). In its response to the NAL, AFA disputes
that it violated the EAS rule, but admits that it violated the
public inspection file rule. We do not rely on the NAL here, but
only the underlying facts.
9 47 C.F.R. § 1.106.
10 47 U.S.C. § 504(a).
11 See 47 C.F.R. § 1.1914.