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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Union Broadcasting, Inc. ) File No. EB-02-KC-783
Licensee of : ) NAL/Acct No. 200332560010
AM Broadcast Station WHB ) FRN 0005-0276-02
AM Broadcast Station KCTE )
Overland Park, Kansas )
Adopted: September 20, 2004 Released: September
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
forfeiture in the amount of sixteen thousand dollars ($18,000) to
Union Broadcasting, Inc. (``Union''), licensee of AM broadcast
station KCTE, Independence, Missouri and AM Broadcast station
WHB, Kansas City, Missouri, for willful and repeated violations
of Sections 73.1745(a) of the Commission's Rules (``Rules'') and
willful violation of Section 73.3526(c) of the Rules.1 The noted
violations concern Union's operation of KCTE with modes and at
hours not specified in the KCTE station authorization, and for
failure to make the KCTE and WHB public inspection files
available to the public.
2. On February 18, 2003, the Commission's Kansas City,
Missouri Field Office (``Kansas City Office'') released a Notice
of Apparent Liability for Forfeiture (``NAL'') in the amount of
eighteen thousand dollars ($18,000) for the referenced Rule
violations.2 Union filed a response to the NAL on March 20,
3. KCTE is authorized by the Commission to broadcast only
during daytime hours. Nighttime operation is not authorized. On
November 14, 2002, the Kansas City Office received a complaint
from a private citizen living in Independence, Missouri. The
complainant stated that station KCTE frequently remained on the
air at night, interfering with the complainant's ability to
receive adjacent channel AM stations. The complainant
acknowledged speaking directly with personnel at KCTE regarding
its nighttime operation but that had failed to resolve the
4. In response to the referenced complaint, Commission
staff (``agents'') monitored the off-air transmissions of KCTE
from November 14 to 17, 2002. Agents noted that on November 14
and 15, 2002 the station discontinued programming at
approximately 5 p.m. and stopped transmitting shortly after 5
p.m., but that the transmitter came on the air again at a reduced
signal level and radiated without programming throughout the
5. On November 20, 2002, an agent inspected radio stations
KCTE and WHB at the main studio location for both stations. At
that time, the station manager explained that he did not know if,
how, or when transmitter readings were being taken on station
KCTE. In addition, the agent noted station operation was not
being monitored by any means on a regular basis, and that there
were no logs containing readings of power, directional patterns
or documented problems with the transmitting system. The station
engineer attributed the nighttime operation to problems with the
station's auto switching device.
6. Also during the November 20, 2002 station inspection,
the agent asked to inspect the public inspection files for both
KCTE and WHB. Those files were not made available to the agent
because they were locked in the office of a station employee who
was out of the office at the time of the inspection.
7. On December 4, 2002, the Kansas City Office issued a
Letter of Inquiry to Union, which included the issues of
operating KCTE with modes and hours not specified in its station
authorization, and failure to make the public inspection file
available to the public.3 In its December 27, 2002 response to
the LOI, Union averred that the contract engineer set the
``appropriate time parameters'' to coincide with the KCTE
transmitter and supplied the station with guidelines for a new,
daily transmitter log. Moreover, Union alleged that the public
inspection file had been moved from a lockable office to the main
hall of its offices and was open for inspection during regular
8. On February 18, 2003, the Kansas City Office released
the subject NAL finding Union apparently liable for willful and
repeated violation of Sections 73.1745(a) ($8,000) and 73.3526(c)
($10,000) of the Rules. Based on the Union's prior violations of
Section 73.1745(a), the forfeiture amount for the Section
73.1745(a) violation was upwardly adjusted from $4,000 to $8,000.
On March 20, 2003, Union filed a Response seeking a decrease in
the forfeiture amount, alleging that it has taken remedial
actions to comply with the referenced Rules.
9. The proposed forfeiture amount in this case was
assessed 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 (``Forfeiture Policy Statement'').6 In examining
Union'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.7
10. Section 73.1745(a) prohibits broadcast stations from
operating at times or with modes or power other than those
specified by the station's license. The agent's documented
observations establish that on November 14, 15, and 16 2002,
Union operated the KCTE transmitter at times when such operation
was not authorized. In its Response, Union does not deny the
violation and points to operator error - failure to turn off the
transmitter. Union alleges that it has since implemented
corrective measures to comply with the Rules by training the
operator to correctly turn off the transmitter. We find that no
mitigation is warranted on the basis of Union's claim of operator
error,8 or the alleged correction of the violation. As the
Commission stated in Seawest Yacht Brokers, ``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.'' 9 Union also believes that the upward
adjustment in the forfeiture is not justified, arguing that it
``clearly was trying to comply with the terms of its license by
ceasing programming at the appropriate time, demonstrating an
absence of willfulness or intent in failing to comply with the
rule.'' We disagree. Union has repeatedly violated Section
73.1745(a) of the Rules. In an October 7, 1999 NOV, the Kansas
City Office cited Union for multiple instances - between
September 24 and October 4, 1999 - of operating with modes and at
hours of operation not specified by the KCTE station
authorization. We therefore affirm the NAL's finding that the
prior violations warrant an upward adjustment.
11. Section 73.3526(c) requires broadcast stations to make
available a public inspection file at any time during regular
business hours.10 Union does not deny that the referenced files
for KCTE and WHB were not available for public scrutiny at the
time of the inspection, but asserts that the resultant fine is
unwarranted.11 According to Union, the human resources office
which housed both the public inspection files and confidential
personnel files at the time of the inspection was temporarily
locked by its regular occupant who was out of the office on an
appointment. Moreover, due to a recent relocation, Union states
that the general manager did not have a key to that office.
Finally, Union asserts that the public inspection file was
subsequently relocated to a hall that provides public access at
all times during regular business hours, regardless of staff
availability. We reiterate that a subsequent correction of a
Rule violation does not warrant mitigation, because such action
is expected of a licensee and does not nullify or mitigate prior
forfeitures or violations.12 The Commission has found that
reasonable access to the public inspection file serves the
important purpose of facilitating citizen monitoring of a
station's operations and public interest performance, and
fostering community involvement with local stations, thus helping
to ensure that stations are responsive to the needs and interests
of their local communities.13 In light of the importance of this
rule as discussed above, the licensee should have, at the very
least, had on hand a master key that would allow public access to
those files at all times during regular business hours, or
located the files in a location that would permit the files to be
at all times accessible to the public.
12. Union also states that no forfeiture is warranted here,
``given the complete lack of willfulness or intent'' to fail to
comply with the rule, and lack of resulting injury or harm.14
The term ``willful,'' as used in Section 503(b) of the Act, does
not require a finding that the rule violation was intentional or
that the violator was aware that it was committing a rule
violation.15 Rather, the term ``willful'' simply requires that
the violator knew it was taking the action in question,
irrespective of any intent to violate the Commission's rules.16
The fact that no harm resulted is not a basis for lowering the
forfeiture here,17 although had harm resulted the forfeiture
might have been increased.18
13. We have examined Union's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Forfeiture Policy Statement as well. As a result of our review,
we conclude that Union willfully and repeatedly19 violated
Section 73.1745(a) of the Rules and willfully violated Section
73.3526(c) of the Rules. Further, we find that neither
cancellation nor reduction of the proposed monetary forfeiture is
IV. ORDERING CLAUSES
14. 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 Union Broadcasting, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $18,000 for repeatedly and willfully
violating Section 73.1745(a) of the Rules, and willfully
violating Section 73.3526(c) of the Rules.
15. 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 of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commissison. The payment must include the NAL/Acct. No. and FRN
No. referenced above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. 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
16. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to Union Broadcasting, Inc., Stations KCTE and WHB,
6721 West 121 Terrace, Overland Park, KS 66209, and to its
counsel, Nancy A. Ory, Esquire at Leventhal Senter & Lerman PLLC,
2000 K Street, N.W., Suite 600, Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 73.1745(a) and 73.3526(c).
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct No.
200332560010 (Enf. Bur. Kansas City Office, Feb. 18, 2003).
3 Letter from Ronald D. Ramage, Agent, Federal Communications
Commission, Enforcement Bureau, Kansas City Office, to Union
Broadcasting, Inc. (Dec. 4, 2002)(``LOI'').
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 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64
(2002) (finding an antenna structure owner primary responsible
for compliance with tower lighting requirements, and denying its
claim that the forfeiture should be cancelled because its
lessee/contractor did not monitor, or notify it regarding,
outages); Wagenvoord Broadcasting Co., 35 FCC 2d 361, 361-62
(1972) (finding a broadcast licensee responsible for compliance
with its station's pre-sunrise restrictions, and denying its
claim that the forfeiture should be cancelled or mitigated
because it relied upon its consulting engineer's erroneous
9 See Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), 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).
10 This requirement was reiterated in a 1998 public notice
(Public Notice, Availability of Locally Maintained Records for
Inspection by Members of the Public, 13 FCC Rcd 17959 (Mass Media
Bur. 1998)) that was released subsequent to modifications to the
public inspection file rules (although licensees have more
flexibility regarding main studio location and location of
station's public files, they are reminded of a continuing
obligation to provide ready access to those files). Review of
the Commission's Rules Regarding the Main Studio Rule and Local
Public Inspection Files of Broadcast Television and Radio
Stations, 13 FCC Rcd 15691 (1998) (``Main Studio and Public
Inspection File Order'').
11 We note that the resultant fine could have doubled because the
subject violation pertained to both stations.
12 See note 9.
13 Main Studio and Public Inspection File Order at 15700.
14 Id. at 2.
15 See 47 U.S.C. § 312(f)(1); see also Southern California
Broadcasting Co., 6 FCC Rcd 4387-88 (1991).
17 See AGM-Nevada, LLC, 18 FCC Rcd 1476, 1478-79 (Enf. Bur. 2003)
(finding that absence of a showing of harm to the public interest
did not entitle a licensee to a reduction of the proposed
18 See Forfeiture Policy Statement 12 FCC Rcd at 17100-17101.
19 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).
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.