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                           Before the
                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            )


                        FORFEITURE ORDER

Adopted:  September 20, 2004                Released:  September 
22, 2004

By the Chief, Enforcement Bureau:



I.   INTRODUCTION

     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, 
2003.  

II.  BACKGROUND

     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 
problem.

     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 
night.

     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 
business hours.

     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. 

III.      DISCUSSION

     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 
warranted.

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 
advice).
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).  
16 Id.  
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 
forfeiture).
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.