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                         Before the
              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
                                 )


                      FORFEITURE ORDER

Adopted:  July 28, 2004                                                                                              
Released:  July 30, 2004

By the Chief, Enforcement Bureau:

I.   INTRODUCTION

     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 
authorization.

II.   BACKGROUND 

     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.

III.        DISCUSSION

     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 
require.5

     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 
willful. 

     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 
proposed forfeiture.  

     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.  



                              FEDERAL COMMUNICATIONS 
                              COMMISSION



                              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) 
(``NAL'').

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 
(1992). 

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.