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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-DV-383
Arnold Broadcasting Company, ) NAL/Acct. No. 200332800007
Station KNEC(FM) ) FRN No. 0006-1597-43
Adopted: July 27, 2004 Released: July 29, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand dollars
($6,000) to Arnold Broadcasting Company, Inc. (``Arnold'') for
willful and repeated violation of Section 301 of the
Communications Act of 1934 (``Act'')1 and Section 11.61(a)(2) of
the Commission's Rules (``Rules'').2 The noted violations
involve Arnold's operating radio transmitting equipment without
a license and failing to receive and transmit required weekly
tests of the Emergency Alert System (``EAS'').
2. On December 4, 2002, the Commission's Denver
District Office (``Denver Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Arnold for a forfeiture in
the amount of twelve thousand dollars ($12,000).3 Arnold filed
a response to the NAL on January 2, 2003.
3. On June 13, 2002, a Denver Office agent inspected
station KNEC. The agent determined that KNEC operated an
unlicensed studio-to-transmitter link (``STL'') on 948.0 MHz at
KNEC's studio, 205 South Main Street, Yuma, Colorado. The STL
link terminated at KNEC's transmitter site approximately 12
kilometers south of Yuma, Colorado.4 The station manager
represented to the agent that KNEC began STL operations in May
1999. In addition, on the same day the Denver Office agent
reviewed KNEC's station logs and determined that KNEC received
no required weekly EAS test (``RWT'') from the designated LP1 or
LP2 sources for the period from May 13, 2002 to June 9, 2002.5
Further, the Denver Office agent found that KNEC's station logs
revealed that the station failed to transmit two required RWTs
during the same time period. Finally, the Denver Office agent
also noted that while KNEC was monitoring the designated LP1
radio station KNNG, it was not monitoring a designated LP2
station.6 Instead, KNEC was monitoring the National Weather
Service (``NWS''). According to the State of Colorado EAS Plan,
the NWS is a recommended additional source but not a replacement
for the designated local primary station.
4. On December 4, 2002, the Denver Office issued an
NAL to Arnold for twelve thousand dollars ($12,000) for
operating an aural broadcast auxiliary station without a license
in violation of Section 301 of the Communications Act of 1934,
as amended, and for failing to receive and transmit the required
RWTs and RMTs in willful and repeated violation of Section 11.61
of the Rules during the period May 13, 2002 - June 9, 2002.7
Arnold responded to the NAL conceding that KNEC failed to log
the receipt and broadcast of EAS tests. Arnold argues that this
failure was ``in no way attributable to the fact that it was
monitoring the [NWS] instead of one of the two designated LP2
stations.''8 Therefore, Arnold contends, KNEC's monitoring the
NWS rather than the LP2 should not figure into the forfeiture
5. Arnold submits that operating an STL without a
license should be deemed a ``much less serious offense'' than
operating a full-service station without a license. Arnold
argues that its operation of an unlicensed STL posed ``no
significant risk of interference to other stations,'' as
evidenced by Section 74.24 of the Rules, which permits 720 hours
of operation per year without a license. Arnold further
contends that this permission for unlicensed operation ``can
lead a licensee into making the sort of innocent mistake that
Arnold made, to wit, believing that a license would be duly
issued....'' Arnold further stated that it expected its
consulting engineer to submit its STL application and that it
would receive a license in due course. Arnold admitted that it
``did not think about the matter again'' until the Denver Office
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended, (``Act''),9 Section 1.80 of the
Rules,10 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
Arnold'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 such other matters as justice may require.11
7. Section 301 of the Act mandates that ``[n]o person
shall use or operate any apparatus for the transmission of
energy or communications or signals by radio'' within the United
States ``except under and in accordance with this Act and with a
license in that behalf granted under the provisions of this
Act.''12 Section 74.24 of the Rules permits short-term
operation of broadcast auxiliary stations subject to several
conditions, including the requirement that such operation is on
a secondary, non-interference basis to regularly authorized
stations and shall be discontinued immediately if perceptible
interference is caused to a regularly authorized station.13 The
short-term operations may not exceed 720 hours annually per
8. Arnold does not claim that its STL operation did
not exceed 720 hours annually during its two years of unlicensed
operation. Indeed, Arnold appears to concede that it made
greater than 720 hours annual use of the station without first
determining whether or not it had a license. Arnold relied on
an independent contractor to file an application for the station
and expected that a license would be issued in due course.
Arnold admits that it ``did not think about the matter again''
until the Denver Office agent's inspection. Arnold argues that
its failure to follow up with its contractor was an innocent
mistake. We find this argument to be without merit. ``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
9. Likewise, we find that Arnold's argument that its
operations posed no significant risk to other stations is a
fundamental misunderstanding of the Communications Act
requirement of a license prior to broadcasting radio
transmissions. It is well established that enforcement of
Section 301 of the Act does not depend on the existence of
interference caused by the unauthorized operations.16
10. Arnold also appears to rely upon the flexibility
of Section 74.24 of the Rules to mitigate Arnold's own failure
to ensure it had a license: ``In view of the fact that STL
stations can be placed in operation and operated for up to 720
hours per year without a license...it is unreasonable to the
extent of being arbitrary and capricious for the Commission to
assess the same forfeiture for operating a [sic] `unlicensed'
STL station that it would for operating an unlicensed full
service station.''17 We agree that the proposed forfeiture
here was excessive under the circumstances. The unauthorized
operation in this case is not a violation on the same order as
is construction and operation with no color of authority.18 In
this case, Section 74.24 of the Rules gave Arnold the color of
authority to begin operations, although Arnold had no authority
to continue operations past the specified 720 hours for more
than two years. Accordingly, we impose a forfeiture for this
violation of four thousand dollars ($4,000), the base amount for
using an unauthorized frequency, rather than the ten thousand
dollars ($10,000) proposed in the NAL.
11. Section 11.61(a)(2) of the Rules requires weekly
tests of the EAS header codes and End of Message (``EOM'')
codes. At the time of the inspection on June 13, 2002, Arnold's
records showed that it failed to receive RWTs between May 13,
2002 and June 9, 2002. In addition, Arnold's records showed
that it failed to transmit RWTs during the same time period.
Arnold does not dispute that it failed to conduct RWTs during
this time period. Accordingly, without regard to Arnold's
monitoring of the NWS, we conclude that a two thousand dollar
($2,000) forfeiture is appropriate for this violation.
12. We have examined Arnold'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 Arnold willfully and repeatedly violated Section
301 of the Communications Act of 1934, as amended,19 and Section
11.61(a)(2) of the Rules, but we find that the forfeiture should
be reduced to $6,000 for these violations.
IV. ORDERING CLAUSES
13. 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,20 Arnold Broadcasting Company, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of six thousand
dollars ($6,000) for its violation of Section 301 of the Act and
Section 11.61(a)(2) of the Rules.
14. 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.21 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. 200332800007 and FRN 0006-1597-43.
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. 20554.22
15. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Arnold Broadcasting Company, Inc., P.O. Box 830,
Sterling, Colorado 80751, and to its counsel, David Tillotson,
Esq., Law Office of David Tillotson, 4606 Charleston Terrace,
N.W., Washington DC 20007-1911.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 U.S.C. § 301.
2 47 C.F.R. § 11.61(a).
3 Notice of Apparent Liability for Forfeiture, File No. EB-02-DV-
383, NAL/Acct. No. 200332800007 (released December 4, 2002).
4 The Commission's records indicate that Arnold filed an
application for the STL on 948.0 MHz on July 16, 2002, one month
after the agents inspected the station. The license was granted
on October 23, 2002, with an assigned call sign of WPWD551.
5 The station logs also reflected that it received no required
monthly EAS test (``RMT''). However, we note that the RMT for
that time period was cancelled.
6 The designated LP2 stations for KNEC are KATR(FM) or KRDZ(AM).
7 NAL at ¶¶ 1, 8.
8 Arnold's Response at page 2.
9 47 U.S.C. § 503(b).
10 47 C.F.R. § 1.80.
11 47 U.S.C. § 503(b)(2)(D).
12 47 U.S.C. § 301.
13 47.C.F.R. § 74.24(c).
14 47 C.F.R. § 74.24(d).
15 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64
(2002) (internal quotation marks omitted) and cases cited
16 Stephen Paul Dunifer, 11 FCC Rcd 718, 726 (1995).
17 Arnold's Response, pages 3-4.
18 See, e.g., WWC License LLC Licensee of Microwave Stations
WPJE660, WPJD256 and WPJA761, Kansas, 16 FCC Rcd 19490 (2001);
New York Radio Service, WPTM988, Brooklyn, New York, --- FCC Rcd
----, DA 04-1720 (rel. June 18, 2004).
19 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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991). As provided by 47 U.S.C. § 312(f)(2), ``[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.'' 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). Southern California
Broadcasting Co., supra.
20 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
21 47 U.S.C. § 504(a).
22 See 47 C.F.R. § 1.1914.