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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Johnson Enterprises, Inc. ) File No. EB-03-KC-001
Licensee of KLEY(AM) )
Wellington, Kansas ) NAL/Acct. No. 200332560016
) FRN 0006-1509-65
Adopted: July 28, 2004
Released: July 30, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand two
hundred dollars ($3,200), to Johnson Enterprises, Inc.
(``Johnson''), licensee of Station KLEY(AM), Wellington,
Kansas, for repeated violation of Section 73.1745(a) of the
Commission's Rules (``Rules'').1 The noted violation
involves Johnson's operation of the station at a power of
more than 1 watt during nighttime hours from January 10-13,
2003, in contravention of the terms of its station
2. On January 6, 2003, the Commission's Enforcement
Bureau Kansas City Office (``Kansas City Office'') received
a confidential complaint that Station KLEY(AM) had been
operating at night with full daytime power while carrying
Nebraska University football games and other local sporting
events. The complaint stated the station appeared to be
attempting to cover Wichita, Kansas with its broadcast
signal. Station KLEY(AM)'s license authorizes operation
with 250 watts of power during daytime and 1 watt at night.
Wichita is approximately 30 miles from the KLEY location in
Wellington and is outside of the station's nighttime
broadcast coverage area when operating with the authorized
output power of 1 watt.
3. In response to this complaint, an agent of the
Kansas City Office monitored the signal strength level of
the station on January 10-21, 2003. The monitoring showed
that Station KLEY(AM) remained at daytime power during
nighttime hours on January 10-13, 2003.
4. On January 30, 2003, the agent inspected the
station, accompanied by the station's owner and general
manager, Gordon Johnson, and chief operator, Vernon Napier.
According to the agent's notes taken during the inspection,
Mr. Johnson made the following statements: 1) that Johnson
had entered into a written contract with the Kansas
Cornhusker Club of Wichita, Kansas to carry Nebraska
University football games on KLEY ``in their entirety''
during the 2002 football season; 2) that Station KLEY(AM)
aired two nighttime Nebraska football games, one against
Arizona State and the other against Penn State, at the full
daytime power level of 250 watts; 3) that the station
utilized an automatic timer to switch the transmitter
between daytime and nighttime power levels and that on
August 24 and September 14, 2002 the station operator used
the manual override to operate the transmitter with daytime
power during nighttime hours; and 4) that he was unaware of
the station's daytime power operation during nighttime hours
on January 10-13, 2003.
5. On April 3, 2003, the Kansas City Office issued a
Notice of Apparent Liability for Forfeiture to Johnson in
the amount of six thousand dollars ($6,000) for the apparent
willful and repeated violation of Section 73.1745(a) of the
Rules.2 On April 30, 2003, Johnson filed a response to the
NAL seeking a cancellation or reduction of the proposed
forfeiture. Johnson admits that the station experienced
trouble with its low power transmitter from the end of
December 2002 to the early part of January 2003. It claims
that an independent engineer made several trips to the
station during this time to repair the transmitter. Johnson
categorically denies that Mr. Johnson stated that KLEY(AM)
operated at full power to broadcast the Nebraska football
games against Arizona State and Penn State. Finally,
Johnson argues the forfeiture should be reduced or canceled
because it does not have a prior history of violations and
is unable to pay the proposed amount.
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''),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) (``Forfeiture
Policy Statement''). In examining Johnson'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
7. Section 73.1745(a) states that no broadcast
station shall operate at times, or with modes or power,
other than those specified and made part of the license.6
Station KLEY(AM)'s authorization specifies that the station
may operate from local sunrise to local sunset with a power
of 250 watts and from local sunset to local sunrise with a
power of 1 watt. Johnson acknowledges that the station
continued to air programming even though its transmitter was
not operating properly from December 2002 to January 2003.
Johnson does not deny that the station operated overpower on
the evenings of January 10-13, 2003. We find that Johnson
repeatedly7 violated Section 73.1745(a) of the Rules by
operating Station KLEY(AM) at daytime power levels during
nighttime hours on January 10, 11, 12, and 13, 2003.
Because we find that Johnson repeatedly violated Section
73.1745(a), we need not address whether the violation was
8. We also conclude that the forfeiture should be
reduced to $4,000, the base forfeiture amount for overpower
operation. The Kansas City Office raised the proposed
forfeiture above the base forfeiture amount based on Mr.
Johnson's contemporaneous admission that an employee
intentionally bypassed the transmitter's automatic timer on
at least two occasions to broadcast nighttime Nebraska
football games. We note that Johnson later recanted these
statements. As our finding herein that Johnson repeatedly
violated Section 73.1745(a) on January 10-13, 2003 does not
rely upon these statements by Mr. Johnson, we find a
reduction in the proposed forfeiture amount from $6,000 to
$4,000 is appropriate.
9. Johnson asserts the forfeiture should be cancelled
or reduced because it does not have the financial ability to
pay the proposed forfeiture. The Commission has determined
that, in general, a licensee's gross revenues are the best
indicator of its ability to pay a forfeiture.8 After
reviewing the tax returns provided by Johnson, we disagree
and conclude that Johnson is able financially to pay the
10. Finally, Johnson asserts the forfeiture should be
cancelled or reduced because it has not received a Notice of
Forfeiture prior to this NAL. After considering Johnson's
past history of compliance, we conclude that a further
reduction of the forfeiture amount to $3,200 is appropriate.
11. We have examined Johnson's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement. As a result of our
review, we conclude that Johnson willfully and repeatedly
violated Section 73.1745(a) of the Rules and reduce the
forfeiture amount to $3,200 based on Johnson's past history
of overall compliance with the Rules.
IV. ORDERING CLAUSES
12. 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,9 Johnson Enterprises, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of three
thousand two hundred dollars ($3,200) for repeatedly
violating Section 73.1745(a) of the Rules.
13. 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.10 Payment shall 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 note NAL/Acct. No.
200332560016, and FRN0006-1509-65. 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. 20554.11
14. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to E. Gordon Johnson, President of Johnson
Enterprises, Inc., P.O. Box 249, 338 S. KLEY Drive,
Wellington, Kansas 67152.
David H. Solomon
Chief, Enforcement Bureau
147 C.F.R. § 73.1745(a).
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332560016 (Enf. Bur., Kansas City Office, April 3, 2003)
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
547 U.S.C. § 503(b)(2)(D).
647 C.F.R. § 73.1745(a).
7As 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).
8See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088
947 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1047 U.S.C. § 504(a).
11See 47 C.F.R. § 1.1914.