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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
FTP Corporation ) File No. EB-02-ST-307
Licensee of Radio Station KNTB- ) NAL/Acct. No. 200332980004
AM ) FRN 0003764974
Lakewood, Washington )
Adopted: August 10, 2004 Released: August 12,
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 FTP Corporation (``FTP''), licensee of Radio
Station KNTB-AM (``KNTB'') in Lakewood, Washington, for repeated
violation of Section 73.1745 of the Commission's Rules
(``Rules.'')1 The noted violation involves FTP's failure to
operate Station KNTB in accordance with the Station's authorized
power and hours of operation.
2. FTP is authorized to operate
Station KNTB on 1480 kHz with 1000 watts from 6:00 a.m. until
sunset.2 According to the terms of KNTB's license, the average
hour of sunset in the month of November is 4:30 p.m. On
November 5, 2002, an agent from the Commission's Seattle,
Washington District Office (``Seattle Office'') monitored the
signal of KNTB near Lakewood beginning at 7:45 p.m. and
determined that the station was operating at night, with the
station's authorized daytime power of 1000 watts. On November
6, 2002, the agent monitored the signal of KNTB from
approximately 3:00 p.m. until approximately 6:00 p.m. No change
in field strength was observed or measured by the agent at
sunset. Indeed, the field strength remained consistent
throughout the monitoring time and was consistent with what the
agent had expected from a 1000 watt transmitter.
3. On December 12, 2002, Seattle
Office agents conducted an AM broadcast inspection of radio
station KNTB. The station's public inspection file contained a
copy of the current station license showing the station only had
daytime operation authority. FTP's station manager stated that
he understood the station did have authority to operate at
nighttime with reduced power. The agent provided FTP
information on how to obtain the requisite license to operate
with reduced power, 111 watts, at night, as proposed. However,
the agent also advised FTP that operation of KNTB at night with
its authorized daytime power of 1000 watts was a serious
violation of the terms of its authorization. On December 16,
2002, Seattle agents again inspected the KNTB transmitter site.
The inspection revealed that the station had remote operation
and control of the transmitter as required by the Rules, but
there was no indication that the transmitter was programmed to
reduce power or shut down at sunset. Station KNTB's transmitter
logs contained no indication that the station's transmitter
power had changed or been reduced on November 5 or November 6,
2002, at sunset, nor was there any indication in the logs that
the station's transmitter power had been reduced below its
authorized daytime power of 1000 watts at any time during the
month of November.
4. On April 30, 2003, the Seattle Office
released a Notice of Apparent Liability for Forfeiture (``NAL'')
to FTP proposing a forfeiture in the amount of four thousand
dollars ($4,000) for repeated violation of Section 73.1745 of the
Rules.3 FTP filed a response on May 20, 2003. In its response,
FTP does not contest the violation. FTP seeks cancellation of
the forfeiture based upon its post-inspection mitigation efforts,
inability to pay, and its history of overall compliance.
5. The forfeiture amount in this case was proposed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended (``Act''),4 Section 1.80 of the Rules,5 and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines.6 In
examining FTP'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
6. Section 73.1745 of the Rules provides that no broadcast
station shall operate at times or with modes or power, other than
those specified and made a part of the license. The licensee
does not dispute the findings of the NAL that the station
violated Section 73.1745 at the times of the inspections.
Rather, it states that the systems in place to change power to
comply with its authorization and the Rule apparently failed
``due to possibly human error or a computer glitch.'' In support
of its mitigation effort, FTP maintains that it took
``immediate action after hearing from the FCC Inspector'' and
that it has undertaken corrective actions to ensure that Station
KNTB will not operate improperly again. While commendable, no
mitigation is warranted on the basis of FTP's post-inspection
correction of the violation. 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 policies
is expected, and does not nullify or mitigate any prior
forfeitures or violations.''8
7. FTP claims ``financial hardship,'' that ``KNTB operates
at a loss'' and that paying the proposed forfeiture ``would cause
great harm to'' KNTB. FTP was directed in Paragraph 14 of the
NAL to submit financial documentation to ``specifically identify
the basis'' for any requested reduction or cancellation of a
forfeiture on the basis of inability to pay. The Commission has
determined that, in general, a licensee's gross revenues are the
best indicator of ability to pay a forfeiture9 and would not
consider forfeiture cancellation or reduction without submission
of three years of tax returns or similar financial data. In
support of its request for cancellation or elimination of the
proposed forfeiture, FTP submits federal income tax returns only
for tax year 2001. Therefore, FTP has failed to substantiate its
request by submitting sufficient information to support its claim
of inability to pay.10
8. Finally, in support of its request for
cancellation or reduction, FTP states that it has a history of
being ``in good standing with the FCC.'' We have reviewed
Commission records in regards to FTP's history of overall
compliance and concur.
9. Based on the findings of the NAL and FTP's
response thereto, we conclude that FTP's violation of Section
73.1745 was repeated.11 Considering the entire record and the
factors listed above, we find that reduction of the proposed
forfeiture is warranted because of FTP's history of compliance
with the Commission's Rules. Accordingly, the forfeiture amount
is reduced from four thousand dollars ($4,000) to three thousand,
two hundred dollars ($3,200).
IV. ORDERING CLAUSES
10. 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,12 FTP Corporation IS LIABLE FOR A
MONETARY FORFEITURE in the amount of three thousand, two hundred
dollars ($3,200) for its repeated violation of Section 73.1745 of
11. 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.13
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 must include the FCC
Registration Number (FRN) and the NAL/Acct. No. referenced in the
caption. 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. 20554.14
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to FTP Corporation, 1940 Fillmore Street, San
Francisco, CA 94115.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 73.1745.
2 File No. BL 780911AM.
3 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332980004 (Enf. Bur. Seattle Office, April 30, 2003).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 U.S.C. § 503(b)(2)(D).
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 (1966).
9 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
10 See Melodynamic Broadcasting Corporation, DA 04-1392 (Enf.
11 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).
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.