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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
                                )
Former Licensee of Station KTMN(FM)1    )    NAL/Acct.        No. 
200332800001
Cloudcroft, New Mexico          )       FRN # 0005-0204-74
Facility ID #89049              )       
                                

                        FORFEITURE ORDER

Adopted:  December 22, 2003        Released:  December 29, 2003
                                             
By the Commission:

                         I.  Introduction

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary  forfeiture  in  the  amount  of  twenty-five   thousand 
dollars  ($25,000)  to A-O  Broadcasting  Corporation  (``A-O''), 
former  licensee2  of  FM radio  station  KTMN,  Cloudcroft,  New 
Mexico, for  willful and repeated  violation of Sections  1.1310, 
11.35,   73.1125,  and   73.1400   of  the   Commission's   Rules 
(``Rules'').3   The noted  violations  involve A-O's  failing  to 
comply   with  radio   frequency  radiation   (``RFR'')   maximum 
permissible exposure (``MPE'') 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.

     2.   On November 18, 2002, the Commission issued a Notice of 
Apparent  Liability  for  Forfeiture  (``NAL'')  to  A-O  for   a 
forfeiture  in  the  amount  of  twenty-eight  thousand   dollars 
($28,000).4  A-O  filed its response to  the NAL on December  18, 
2002.

                         II.  Background


     3.   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 its 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   was 
authorized  to operate on  frequency 97.9 MHz  with an  effective 
radiated  power (``ERP'') of  100 kW operating  with a center  of 
radiation equal to 18 meters AGL.5  The station license for  KTMN 
also  included 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.''6

     4.    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  that  the  KTMN 
transmitting  antenna was  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. 

     5.   When the agents  arrived at the  transmitter site,  the 
station  was not operating.   KTMN's owner told  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.  Upon the agents' request,  the 
owner turned  the transmitter on to  40% of the authorized  power 
and transmitted an  unmodulated carrier.  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.   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)7       Limit 
                       (mW/cm2)
20 to 60 feet from       0.63           0.2           315
tower base
Lookout tower            3.08           0.2          1500
stairway
Lookout platform          0.7           0.2           350
area


     6.   The temporary special use permit issued by the USFS  to 
the owner of  A-O expressly provided USFS personnel  unrestricted 
access  to the  structure.  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.

     7.   The agents also found that KTMN had no main studio, had 
no   EAS  equipment   installed  and   did  not   have   adequate 
transmission system  control.  Although KTMN's owner claimed  the 
transmitter building  was the temporary  main studio, the  agents 
observed that the transmitter building was within a locked  fence 
and, therefore, not accessible to the public; and that there  was 
little room, if  any, for more than one person to move around  in 
the  building.  Additionally, 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 told  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 owner told the agents 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.   By letter dated  November 20, 2001,9  A-O notified  the 
Commission that KTMN ceased transmitting on November 7, 2001,  as 
a  result of a  transient failure of  the station's computer  and 
would  remain  silent  in  order  to  complete  improved   studio 
facilities  and to  make  some adjustments  to  its  transmitting 
facilities.  On March  14, 2002, approximately four months  after 
KTMN suspended operations,  A-O filed a request (amended on  June 
10  and 21, 2002)  with the  Media Bureau  for special  temporary 
authority  (``STA'')  for KTMN  to  remain silent.   In  its  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  an 
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.10   This 
application  was granted on  September 30,  2002.  Following  the 
termination  on November 7,  2002, of A-O's  license for KTMN  by 
the  Media Bureau,  A-O filed  an application  for a  license  to 
operate at  its new site  on April 30, 2003,  and for renewal  of 
that  license  on July  3,  2003.  These  applications  were  not 
acceptable for filing  because there was no currently  authorized 
station  warranting a  covering  license or  a  license  renewal.  
Accordingly, on  July 31, 2003, the  Media Bureau dismissed  both 
of these applications as inadvertently accepted for filing.11

     9.     On November 18, 2002, the Commission issued a NAL  to 
A-O  for a  forfeiture  in the  amount of  twenty-eight  thousand 
dollars ($28,000) for willful and repeated violation of  Sections 
1.1310,  11.35,  73.1125  and  73.1400  of  the  Rules.   In  its 
response,  filed on  December 18,  2002, A-O  seeks reduction  or 
cancellation  of the  proposed monetary  forfeiture.  A-O  argues 
that  it  did  not  willfully violate  any  FCC  rule;  that  the 
violations  alleged  in  the  NAL,  ``do  not  relate  to  silent 
stations'';  that A-O's actions  ``complied substantially''  with 
Sections 1.1310,  11.35, 73.1125 and 73.1400  of the Rules;  that 
``the  inspection  was  not  conducted  in  accordance  with  the 
Rules'';  that  A-O  is  unable  to  pay  any  forfeiture  amount 
whatsoever; that A-O has a record of overall compliance; that  A-
O  acted in good  faith; that A-O  was not required  to have  EAS 
equipment installed because it was within a 60 day grace  period; 
that KTMN's transmitter  site is ``not readily accessible to  the 
public'';  that  the  Commission  cannot  now  penalize  A-O  for 
violation  of  the RFR  rules  after having  reviewed  A-O's  RFR 
analysis;  and  that the  Commission  ``articulated  no  rational 
basis''  for specifying  a  $10,000 base  forfeiture  amount  for 
violation of Section 73.1310 of the Rules.

                        III.  Discussion


     10.       The proposed  forfeiture amount in  this case  was 
assessed in accordance with Section 503(b) of the Act,12  Section 
1.80  of the  Rules,13  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  A-O'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.14

     11.  As demonstrated  below, there  is  no basis  for  A-O's 
claim  that  it  has  ``complied  substantially''  with  Sections 
1.1310, 11.35, 73.1125 and 73.1400 of the Rules.    Additionally, 
we reject A-O's  contention that, because KTMN was silent at  the 
time  of   the  inspection,  the   violations  alleged  in   this 
proceeding are inapplicable  to KTMN.  The violations of  Section 
1.1310 of  the Rules occurred between  October 5 and November  7, 
2001,  while KTMN  was  operating.  The  violations  of  Sections 
11.35, 73.1125 and 73.1400 were continuous violations that  began 
when KTMN was  granted a license by the Commission on October  5, 
2001, and  operated the station and  were continuing at the  time 
of our inspection on November 14, 2001.15

     12.   The violations discussed in this order either occurred 
on  more  than one  day  or  continued for  more  than  one  day.   
Accordingly, we find below that they are repeated. 16

     13.  We  also  find  no  basis  for  A-O's  claim  that   it 
``committed no  willful violation of  any Commission rule.''   As 
we  stated in the NAL,  the ``term `willful'  as used in  Section 
503(b)  has been  interpreted to  mean simply  that the  acts  or 
omissions are  committed knowingly.'' 17  As demonstrated  below, 
A-O  knowingly  committed  the acts  leading  to  the  violations 
discussed  in this  Forfeiture Order  and, accordingly,  we  find 
below that the violations are also willful.

     14.  Section 1.1310  of  the  Rules  requires  licensees  to 
comply  with RFR  exposure  limits.  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.  

     15.  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.18   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.20   However, A-O did  not 
construct  KTMN as  authorized.  Because  A-O did  not  construct 
KTMN as  authorized in the construction  permit, we again  reject 
A-O's claim  originally made in response  to the Denver  Office's 
warning  letter and reiterated  in the response  to the NAL  that 
the Commission  cannot now penalize it  for violation of the  RFR 
rules   after   having  reviewed   A-O's   RFR   analysis.    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.  The  antenna  was mounted  at  13 
meters AGL,  rather than the authorized  18 meters AGL.   As  A-O 
concedes,  it 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.   In its response  to 
the NAL, A-O  claims it was unaware that its antenna was  mounted 
at  13 meters AGL   As we recently  reiterated, ``the  Commission 
has long held that licensees and other Commission regulatees  are 
responsible  for the acts  and omissions of  their employees  and 
independent  contractors and has  consistently refused to  excuse 
licensees  from forfeiture penalties  where actions of  employees 
or  independent  contractors  have  resulted  in  violations.''21  
Therefore,  since  A-O's  antenna  was  mounted  by  either   its 
employees  or  its   contractor,  A-O  is  chargeable  with   its 
employees'  or contractor's  knowledge  of the  location  of  the 
antenna  for the purpose  of determining that  the violation  was 
willful.22

     16.  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 who 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,  contrary to  the claim  in  A-O's 
response to the NAL, the KTMN transmitter site is not remote  and 
is  easily accessible  to the  general public  by a  gravel  road 
which can be used by two wheel drive vehicles.  

     17.  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,23  the FCC  agents  found 
spatially averaged RFR fields which were more than 300% over  the 
limits for MPE  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 up to  60% of authorized  power 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  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. 

     18.  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.''24  At the  time 
of inspection, no  EAS equipment was installed or operational  at 
station  KTMN.  A-O argues in  its response to  the NAL, that  it 
was not  required to have EAS equipment  because it was within  a 
60  day  grace  period  specified  by  Section  11.35(b)  of  the 
Rules.25   Section 11.35(b) provides in pertinent part:  ``If  an 
EAS  Encoder or  EAS  Decoder becomes  defective,  the  broadcast 
station  .  .  . may  operate  without  the  defective  equipment 
pending  its repair or  replacement for 60  days without  further 
FCC authority.   Entries shall be made  in the broadcast  station 
log .  . . showing  the date and time  the equipment was  removed 
from service and restored to service.''  The 60 day grace  period 
is, therefore,  applicable only when  defective EAS equipment  is 
removed for  repair or replacement.  A-O  does not claim that  it 
ever installed KTMN's  EAS equipment or that A-O removed the  EAS 
equipment  because  it  became  defective.   In  fact,  the   EAS 
equipment  found at  KTMN's  transmitter site  was still  in  its 
original  packaging  and had  apparently  never  been  installed.  
Based on the evidence, we find that A-O willfully and  repeatedly 
violated  Section 11.35(a) of  the Rules by  failing to have  EAS 
equipment installed and operational. 

     19.  Section 73.1125(a) of the  Rules provides in  pertinent 
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).''26  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.27    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.''28   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.''29  
Although A-O's owner stated that he was temporarily using  KTMN's 
transmitter building as  a main studio, it is apparent that  KTMN 
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  willful and  repeated violation  of 
Section 73.1125 of the Rules.30  

     20.  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  willfully  and  repeatedly  violated 
Section  73.1400  of  the  Rules  by  failing  to  have  adequate 
transmission system monitoring and control. 

     21.   A-O  claims  that the  inspection  of KTMN  ``was  not 
conducted  in   accordance  with''  Section  73.1225(a)  of   the 
Rules,31  because  ``KTMN  was  not  on  the  air  and  was   not 
conducting  business'' at the  time of  the inspection.   Section 
73.1225(a) simply specifies the times at which broadcast  station 
licensees must make  their stations available for inspection;  it 
is  not  the basis  for  the Commission's  authority  to  inspect 
broadcast stations.  The basis for the Commission's authority  to 
inspect  radio stations  is Section  303(n) of  the Act,32  which 
gives  the FCC  authority to  ``inspect all  radio  installations 
associated  with stations  required  to be  licensed  . .  .  .''     
Section  303(n) authorized  the  inspection of  KTMN,  which  A-O 
permitted.    Given the  safety  concerns in  this case,  it  was 
essential to  inspect KTMN and it  would have been a  dereliction 
of  duty not to have  done so.  We  conclude that the  inspection 
was proper.

     22.  A-O  argues  that  we  had  ``articulated  no  rational 
basis''  for specifying  a  $10,000 base  forfeiture  amount  for 
violation of Section 1.1310 of the Rules.  We do not agree.   The 
Commission's  Forfeiture   Policy  Statement  and  Amendment   of 
Section  1.80(b)  of  the Rules  to  Incorporate  the  Forfeiture 
Guidelines (``Forfeiture  Policy Statement'')33 does not  specify 
a base  forfeiture for violation of  the RFR maximum  permissible 
exposure  limits  for  transmitting  tower  antennas  in  Section 
1.1310.34  However, as  stated in the NAL, the Forfeiture  Policy 
Statement does  specify 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.  Because  of 
the public safety nature of the RFR maximum permissible  exposure 
limits, it was entirely reasonable for us to conclude in the  NAL 
that a  base forfeiture amount of  $10,000 for failure to  comply 
with the RFR exposure limits is appropriate.

     23.  A-O claims to have a history of overall compliance.  In 
particular, A-O argues that KTMN was a ``new station'' which  had 
been constructed for  only 44 days at the time of the  inspection 
and, therefore, A-O  had no history of prior offenses.  In  fact, 
a  new station cannot  claim a history  of overall  compliance.35   
Accordingly, we find that no reduction is warranted on the  basis 
of a history of overall compliance.

     24.  A-O also  argues  that  it cannot  pay  any  forfeiture 
amount  because it has  no revenues.   The financial  information 
submitted by A-O  does indeed indicate that A-O has no  revenues.  
However,  this fact alone  does not  establish that  A-O can  pay 
nothing.   While a  licensee's  gross revenues  is  normally  the 
primary factor used  to determine the licensee's ability to  pay, 
it is not the only factor.  In this case, A-O was on the air  for 
such a  brief period that it never  had any revenues.  In such  a 
situation, it  is necessary to look  at factors other than  gross 
revenues36  to determine  the licensee's  ability to  pay.  In  a 
related proceeding37 A-O  has filed an application for review  of 
the Media Bureau's cancellation of its license for station  KTMN.  
The filing  of that application for  review implies that A-O  has 
sufficient  resources to return  KTMN to air  and to operate  it.  
Additionally, A-O's  application for a  construction permit at  a 
new site38 and  its subsequent license application for  authority 
to operate at the new site39 imply that A-O had sufficient  funds 
to  reconstruct KTMN at  the new site  and did so.   In order  to 
determine A-O's ability to pay the proposed monetary  forfeiture, 
it  is necessary to know  what resources are  available to A-O  - 
e.g., A-O's lines  of credit, A-O's liquid assets and the  assets 
and  income of  A-O's owner.   Since A-O  has not  provided  such 
information, we  are unable to determine  that it cannot pay  the 
proposed forfeiture amount and we will not reduce the  forfeiture 
on the basis of A-O's inability to pay.

     25.    We  find  that  A-O  demonstrated  good  faith40   by 
obtaining  EAS equipment before  the inspection  and by  starting 
construction of a main studio before the inspection.  A-O  argues 
that  the  50% good  faith  reduction awarded  in  Rego,  Inc.,41 
requires reducing the portion of the forfeiture proposed for  the 
EAS and  main studio violations by  at least 50%.  The  reduction 
awarded on the  basis of good faith depends on the  circumstances 
of the  particular case. 42  The  circumstances in this case  are 
not  the same as those  in Rego.  In  Rego, the licensee  ordered 
new EAS  equipment to replace  the defective equipment  installed 
at  the station whereas,  in this case,  there was EAS  equipment 
present at  the station but it  was not installed.   Furthermore, 
there was no main studio violation in Rego.  We find the  portion 
of  the  forfeiture   proposed  for  the  EAS  and  main   studio 
violations  should be  reduced from  $15,000 to  $12,000 and  the 
total forfeiture amount from $28,000 to $25,000.

     26.  We have examined A-O'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 
A-O  willfully and  repeatedly violated  Sections 1.1310,  11.35, 
73.1125,  and  73.1400 of  the  Rules and  that  the  appropriate 
forfeiture amount is $25,000.

                      IV.  Ordering Clauses

     27.  Accordingly, IT IS  ORDERED that,  pursuant to  Section 
503(b) of  the Act, and Sections  0.111, 0.311 and 1.80(f)(4)  of 
the  Rules,43 A-O  IS LIABLE  FOR A  MONETARY FORFEITURE  in  the 
amount of twenty-five  thousand dollars ($25,000) for 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,  in willful  and  repeated violation,  respectively,  of 
Sections 1.1310, 11.35, 73.1125, and 73.1400 of the Rules.

     28.  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.44  
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. 200332800001 and  FRN 0005-0204-74.  Requests  for 
full payment under an installment plan should be sent to:  Chief, 
Revenue   and  Receivables   Group,   445  12th   Street,   S.W., 
Washington, D.C. 20554.

     29.  IT IS FURTHER  ORDERED THAT a  copy of this  FORFEITURE 
ORDER 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
_________________________

1         The Commission's data base  now lists the station  call 
sign as ``DKTMN'' to reflect its deletion.

2         On January 3,  2003, the Media  Bureau notified A-O  by 
letter that its license for  station KTMN expired on November  7, 
2002, pursuant to  Section 312(g)  of the  Communications Act  of 
1934, as amended (``Act''), 47  U.S.C.  312(g), because of  that 
station's failure to transmit broadcast signals for a consecutive 
12 month period.  Letter to Paul  H. Brown, Esq.,  18 FCC Rcd  35 
(Media Bureau 2003) (license forfeited and call sign deleted). By 
its letter  of March  11,  2003, the  Media Bureau  denied  A-O's 
petition for reconsideration.  Letter to Paul H. Brown, Esq.,  18 
FCC Rcd 3818 (Media Bureau  2003).  An application for review  of 
that action is pending.

3   47 C.F.R.  1.1310, 11.35, 73.1125, and 73.1400.

  4 A-O Broadcasting, Inc., 17 FCC Rcd 24184 (2002).   

5   The Media Bureau (formerly the 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).  

  6 File No. BLH-20010924AAM.

  7 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.

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

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

  10 File No. BPH-20020822AAC.

  11 A-O's petition for reconsideration of those dismissals is 
now before the Media Bureau. (File Nos. BLH-20030703ACD and BRH-
20030703ACC).  See also note 2, supra.

  12 47 U.S.C.  503(b).

  13 47 C.F.R.  1.80.

  14 47 U.S.C.  503(b)(2)(D).

  15 We need not discuss whether the violations of Sections 
11.35, 73.1125 and 73.1400 apply to KTMN's period of silence 
because, in any event, these violations  existed throughout 
KTMN's period of operation from October 5 to November 7, 2001.

  16  As  provided  by  47  U.S.C.    312(f)(2),  a   continuous 
violation is ``repeated'' if it continues for more than one  day.   
The  Conference  Report  for  Section  312(f)(2)  indicates  that 
Congress intended to apply this definition to Section 503 of  the 
Act as well as Section 312.  See H.R. Rep. 97th Cong. 2d Sess. 51 
(1982).  See Southern California Broadcasting Company, 6 FCC  Rcd 
4387, 4388 (1991)  and Western Wireless  Corporation, 18 FCC  Rcd 
10319 at fn. 56 (2003).

  17 NAL  at 24188.  See  also 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  and 
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....''  and 
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).

  18 See Section 1.1307(b) of the Rules.

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

  20 The Media Bureau granted A-O's license for station KTMN on 
October 5, 2001 (File No. BLH- 20010924AAM).

  21 See, e.g., Eure Family Limited Partnership, 17 FCC Rcd 
21861, 21863-64 (2002) (internal quotation marks omitted) and 
cases cited therein.

  22 See Pinnacle Towers ,Inc., DA-03-2620 (Enf. Bur., released 
August 11, 2003).

  23  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  RFR  problem 
would have been even worse  when the station operated at  41%-60% 
of authorized power.

  24 47 C.F.R.  11.35(a).

  25 47 C.F.R.  11.35(b).

  26 47 C.F.R.  73.1125(a).

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

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

  29 7 FCC Rcd at 6802.

  30 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).

31          47 C.F.R.  73.1225(a).  This section provides that 
``The licensee of a broadcast station shall make the station 
available for inspection by representatives of the FCC during the 
station's business hours, or at any time it is in operation.''

32         47 U.S.C.  303 (n).

33   12 FCC  Rcd  17087 (1997),  recon  denied, 15  FCC  Rcd  303 
(1999).

  34  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.

  35 See Bay Television, Inc., 10 FCC Rcd 11509 (1995) (six 
months of radio station operation insufficient to establish a 
history of overall compliance).

  36 The Commission has long recognized that, although gross 
revenues are the primary indicator of a licensee's ability to pay 
a forfeiture, other financial indicators can be considered.  See 
PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1991).

37         See Letter to Paul H. Brown, Esq., fn 1, supra.

  38 Granted September 30, 2002 (File No. BPH-20020822AAC).

  39 Dismissed July 31, 2003 (File No. BLH-20030703ACD).

  40 See Section 1.80(b)(4) of the Rules, 47 C.F.R.  
1.80(b)(4), Guidelines for Assessing Forfeitures, Part II, 
Adjustment Criteria for Section 503 Forfeitures, Downward 
Adjustment Criteria.

  41 16 FCC Rcd 16795 (Enf. Bur. 2001).

  42 See, e.g., Radio One, Inc.., 18 FCC Rcd 15964, 15965 
((2003) (Less than 50% reduction for good faith efforts to 
install EAS equipment).

  43 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  44 47 U.S.C.  504(a).