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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Pilgrim Communications, Inc. ) File Number: EB-01-DV-044
Licensee of Station KSKE(AM) ) NAL/Acct. No.
Vail, Colorado 200332800004
Facility ID # 16272 ) FRN 0006-1472-19
Adopted: May 17, 2004 Released: May 19, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eleven thousand dollars
($11,000) to Pilgrim Communications, Inc. ("Pilgrim"), licensee
of AM radio station KSKE in Vail, Colorado, for willful and
repeated violation of Section 73.1125(a) of the Commission's
Rules (``Rules''), and willful violation of Sections 73.1560(a)
and 73.1745(a) of the Rules.1 The noted violations involve
Pilgrim's failure to maintain a main studio for station KSKE, its
failure to reduce KSKE's power at sunset to the nighttime level
required by the station authorization and its exceeding KSKE's
authorized nighttime power level.
2. On November 20, 2002, the Commission's Denver,
Colorado, Field Office (``Denver Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Pilgrim for a
forfeiture in the amount of eleven thousand dollars ($11,000).2
Pilgrim responded to the NAL on January 21, 2003, and filed a
supplementary response on February 20, 2003.
3. Radio station KSKE is authorized to operate with 5,000
watts of power during daytime hours and 217 watts between sunset
and sunrise, on frequency 610 kHz. On May 9, 2001, an agent from
the Denver Office monitored KSKE and took numerous field strength
measurements at locations near the KSKE transmitter between 7:30
p.m. to 9:00 p.m. MDT. According to its station authorization,
KSKE should have switched from daytime to nighttime power at 8:15
p.m. The agent observed no change in the field strength from
8:15 p.m. to 9:00 p.m.
4. On May 10, 2001, the agent attempted to inspect KSKE's
main studio. The agent went to the location listed for KSKE in
the local telephone directory, 0210 Edwards Village Blvd., Unit
B-206, Edwards, Colorado, but found no studio at that location.
Employees at a business adjacent to Unit B-206 told the agent
that they had no knowledge of a studio for KSKE in the vicinity.
The agent called the local telephone number listed for KSKE but
found it was disconnected. The agent, however, was able to
contact Pilgrim's corporate office in Indianapolis, Indiana,
which informed him that Pilgrim had no staff in the Vail area and
that Pilgrim's staff at AM station KLMO in Longmont, Colorado
(approximately 160 miles from Vail), remotely controlled KSKE's
5. Additionally, on May 10, 2001, the agent measured
KSKE's field strength during daylight hours and noted no change
from the May 9 nighttime measurements. The agent then asked the
operator at KLMO in Longmont to reduce KSKE's power to its
authorized nighttime level through remote control. When the
operator did so, the reduction in KSKE's measured field strength
confirmed that KSKE had been operating with power in excess of
its authorized nighttime power on May 9, 2001.
6. On July 30, 2001, the Denver Office issued an Official
Notice of Violation (``NOV'') to Pilgrim for violations at KSKE.
In its response, Pilgrim stated that, after notification by the
FCC, it corrected KSKE's power level by correcting an error in
the programming of the remote power control system. Pilgrim also
stated that it maintained a studio for KSKE in Edwards, Colorado,
and that it had a telephone number and one employee there.
7. On November 20, 2002, the Denver Office issued a NAL to
Pilgrim for a forfeiture in the amount of eleven thousand dollars
($11,000). In its January 21, 2003, response to the NAL, Pilgrim
states that KSKE is ``staffed by a full time staff person based
at the station's studio'' in Eagle-Vail, Colorado; that the chief
operator monitors KSKE's technical operations ``on a daily basis,
using remote computer access''; that it has equipment in place
which is properly adjusted to assure compliance with the terms of
KSKE's license; and that it has instituted daily manual checks to
insure that KSKE's power level is properly adjusted. Pilgrim
requests cancellation of the proposed forfeiture on the basis of
its correction of the violations and its inability to pay the
proposed monetary forfeiture. Pilgrim filed a supplementary
response on February 20, 2003, containing copies of its 1998,
1999, 2000 and 2001 federal income tax returns.
8. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),3 Section 1.80 of the Rules,4
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''). Section 503(b) of the Act
requires that the Commission, in examining Pilgrim's response,
take into account the nature, circumstances, extent and gravity
of the violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and
such other matters as justice may require.5
9. Section 73.1560(a) of the Rules provides that AM
stations must be maintained as near as practicable to the
authorized antenna input power. Section 73.1745(a) of the Rules
provides, in pertinent part, that no broadcast station shall
operate with power other than that specified and made a part of
the license unless otherwise provided in Part 73 of the Rules.
On May 9, 2001, Pilgrim did not reduce KSKE's power at sunset to
the level required by the station authorization and operated with
power exceeding of the authorized nighttime level, in willful6
violation of Sections 73.1560(a) and 73.1745(a) of the Rules.
10. Section 73.1125(a) of the Rules requires that every
broadcast station licensee maintain a main studio for the
station. Although Pilgrim claimed in its response to the NOV
that it maintained a main studio in Edwards, Colorado, the FCC
agent found that there was no main studio at that location.
Furthermore, during a telephone conversation on May 10, 2001, the
staff member at station KLMO who remotely controlled KSKE told
the agent that Pilgrim formerly had a studio in Edwards,
Colorado, but had closed it. We conclude that Pilgrim had no
main studio for station KSKE, in willful and repeated7 violation
of Section 73.1125 of the Rules.
11. To the extent that Pilgrim now complies with Sections
73.1125(a), 73.1560(a) and 73.1745(a) of the Rules, no mitigation
is warranted on the basis of Pilgrim's correction of its
violations of those rules. As the Commission stated in Seawest
Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), ``corrective action
taken to come into compliance with Commission rules or policy is
expected, and does not nullify or mitigate any prior forfeitures
or violations.'' 8
12. Finally, Pilgrim argues that, if the proposed $11,000
forfeiture is imposed, it will be unable to pay that amount. In
support of its financial hardship claim, Pilgrim submits copies
of its 1998, 1999, 2000 and 2001 federal income tax returns.9
The Commission has determined that, in general, a licensee's
gross revenues are the best indicator of its ability to pay a
forfeiture.10 After reviewing the financial data submitted, we
find that the proposed monetary forfeiture should not be
cancelled or reduced. 11
13. We have examined Pilgrim'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 Pilgrim willfully and repeatedly violated Section 73.1125(a)
of the Rules and willfully violated Sections 73.1560(a) and
73.1745(a) of the Rules and that neither cancellation nor
reduction of the proposed $11,000 monetary forfeiture is
14. Pilgrim's response to the NAL indicates that KSKE's
main studio currently has ``a full time staff person'' but does
not indicate that there is any managerial presence at the main
studio. To serve the needs and interests of the residents of a
broadcast station's community of license, the licensee must
maintain a full-time staff and managerial presence during normal
business hours. 12 Accordingly, we will require, pursuant to
Section 308(b) of the Act,13 that Pilgrim report to the
Enforcement Bureau within thirty (30) days of the release of this
Order whether there is a managerial presence at KSKE's main
studio and, if the report indicates that there is a managerial
presence, describe the managerial presence. Pilgrim's report
must be submitted in the form of an affidavit signed by an
officer or director of the licensee. If Pilgrim fails to submit
such a report or we find that Pilgrim has not come into
compliance with our main studio rule, we will consider further
appropriate enforcement action.
IV. ORDERING CLAUSES
15. 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,14 Pilgrim Communications, Inc., IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eleven thousand dollars
($11,000) for willfully and repeatedly violating Section
73.1125(a) of the Rules and willfully violating Sections
73.1560(a) and 73.1745(a) of the Rules.
16. IT IS ALSO ORDERED that, pursuant Section 308(b) of the
Act, Pilgrim must submit the report described in Paragraph 14,
above, within 30 days from the release of this Order, to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Room 7-A 820,
Washington, D.C. 20554.
17. 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.
200332800004 and FRN 0006-1472-19. 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.
18. IT IS FURTHER ORDERED That a copy of this Forfeiture
shall be sent by certified mail, return receipt requested, to
Pilgrim's counsel, Marnie K. Sarver, Esq., Wiley, Rein & Fielding
LLP, 1776 K Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 73.1125(a), 73.1560(a) and 73.1745(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332800004 (Enf. Bur., Denver Office, released November 20,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 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).
7 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).
8 See also Callais Cablevision, Inc., 17 FCC Rcd 22626,
22629 (2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259
(1973); and Executive Broadcasting Corp., 3 FCC 2d 699, 700
9 Since we consider only the three most recent federal
income tax returns, we are not considering the 1998 return.
10 See PJB Communications of Virginia, Inc., 7 FCC Rcd
2088, 2089 (1992).
11 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues). We
have reviewed Pilgrim's financial data in this case and another
case involving Pilgrim simultaneously and have determined it is
able to pay both forfeitures. Pilgrim Communications, Inc., DA
04-xxxx (Enf. Bur., released mm/dd/04).
12 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 and n.2 (1992), clarified, 7 FCC Rcd 6800 (1992).
13 47 U.S.C. § 308(b)
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.