Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554

In the Matter of                  )
                                 )   NAL/Acct. No. 200432080203
                                 )   FRN 0005025911
Licensee of Station KBMP(FM),     )   Facility ID No. 91037
Enterprise, Kansas                )

                      FORFEITURE ORDER

Adopted:  November 4, 2004              Released:   November 
5, 2004  

By the Chief, Enforcement Bureau:


     1.  In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of $10,000 to American 
Family Association (``AFA''), licensee of non-commercial 
educational radio Station KBMP(FM), Enterprise, Kansas.  AFA 
violated the main studio rule by willfully and repeatedly 
failing to meet the location requirements set forth in 
section 73.1125(a) of the Commission's rules, and by 
willfully and repeatedly failing to maintain a meaningful 
management and staff presence at its main studio.1  AFA also 
willfully failed to comply fully with a Bureau communication 
that directed it to produce certain information concerning 
the main studio of Station KBMP(FM).


     2.  The Enforcement Bureau issued a Notice of Apparent 
Liability for Forfeiture (``NAL'') to AFA on July 28, 2004.2  
As discussed more fully in the NAL, AFA placed Station 
KBMP(FM) into operation on March 6, 2002 with a main studio 
co-located with that of co-owned Station KCFN(FM), Wichita, 
Kansas, prior to Media Bureau action on a main studio rule 
waiver request to allow such co-location.  AFA subsequently 
requested Media Bureau action on the waiver request ``before 
we are hit with forfeitures'' due to the lack of a local 
main studio for Station KBMP(FM).3  By letter dated October 
31, 2002, the Audio Division of the Media Bureau granted 
AFA's waiver request, without prejudice to whatever 
enforcement action might be taken with respect to AFA's 
admitted violation of the Commission's main studio rule.4  
The Media Bureau referred the matter to the Enforcement 
Bureau for possible enforcement action.  On November 13, 
2003, the Investigations and Hearings Division of the 
Commission's Enforcement Bureau sent a letter of inquiry to 
AFA, notifying  AFA that the Bureau ``is investigating 
allegations that [AFA] . . . violated the Commission's 
broadcast main studio rule'' and directing it to provide 
nine categories of information and copies of all documents 
relevant to AFA's responses.5  AFA responded with a letter 
dated November 21, 2003 that only addressed two categories 
of information and provided only one responsive document.6 

     3.  The NAL proposed a forfeiture in the base amount of 
$7,000 for AFA's apparent violation of Section 73.1125.  
With respect to the Bureau's letter of inquiry to AFA, the 
Bureau found that AFA had failed to provide seven out of 
nine categories of information identified by the Bureau and 
had not offered any explanation for its incomplete response.  
The Bureau accordingly proposed a forfeiture in the amount 
of $3,000 for this violation, reduced from the base amount 
of $4,000 because AFA had provided a partial response.7  AFA 
responded to the NAL on August 25, 2004.8


    A.     AFA Willfully and  Repeatedly Failed to  Meet the 
       Location and Staffing Requirements of the Main Studio 

     4.  By AFA's own admission, the main studio for Station 
KBMP(FM) did not meet  the location or staffing requirements 
for  a   broadcast  station's  main  studio   under  section 
73.1125(a) from  March 6,  2002, when the  station commenced 
operation,  until  October 31,  2002,  when  AFA received  a 
waiver of the main studio  rule.  The record shows that this 
was a knowing violation by AFA,  as AFA noted in its request 
for  expedited  processing  that  it sought  action  by  the 
Commission's  Media   Bureau  ``before   we  are   hit  with 
forfeitures.''9  In this regard, we  note that, in 2002, AFA 
was  assessed  a forfeiture  in  the  amount of  $5,000  for 
operating Station KBKC-FM, Moberly, Missouri, without a main 
studio.10  As in this case, AFA  put that station on the air 
after  filing a  main  studio waiver  request,  but had  not 
received a grant of that request when it commenced operation 
of  the  station  without  a local  main  studio.   A  field 
inspection by the Enforcement Bureau  revealed the lack of a 
local main studio. 

     5.  In  its Response, AFA  argues that in this  case it 
brought   the  violation   at   Station   KBMP(FM)  to   the 
Commission's attention.  We recognize  that a forfeiture may 
be  reduced  from  the  base  amount  under  our  forfeiture 
guidelines  if  there  was   a  voluntary  disclosure  of  a 
violation.11  However, in this case there are countervailing 
circumstances.    AFA  is   extremely   familiar  with   the 
requirements  of  the  main  studio  rule,  having  obtained 
waivers of  the rule in  approximately 60 cases  before this 
one.12  In this case, AFA committed an intentional violation 
of the rule for a period of six months, not long after being 
assessed a forfeiture for a similar violation at another AFA 
station.   Had  AFA  not   disclosed  the  violation,  these 
circumstances would  warrant an  upward adjustment  from the 
base  forfeiture  amount  of   $7,000.13   Because  AFA  did 
voluntarily  disclose  the violation,  we  did  not make  an 
upward adjustment.  Under the  totality of the circumstances 
here, reduction or elimination of the proposed forfeiture is 
not appropriate.

     6.  AFA argues that  the forfeiture should be cancelled 
because it  was not tardy  in applying  for a waiver  and it 
vigorously  pursued the  waiver request.   We disagree.   As 
explained above,  AFA operated  without a local  main studio 
prior to obtaining Commission authority to do so.  Diligence 
in  seeking such  authority  does not  justify reduction  or 
cancellation of the forefeiture in this case.14  

     7.   In  its  Response,  AFA contends  that  the  Media 
Bureau's simultaneous grant of  AFA's waiver request and its 
license application  for Station KBMP(FM) compels  a finding 
that ``[a]t no  time did KBMP operate as  a licensed station 
without complying  with the Main Studio  Rule.''15  AFA also 
argues that its  construction of the station  has served the 
public interest, particularly the interests of the community 
of  Enterprise, Kansas.   However, the  grant of  the waiver 
request  and  license  application  does  not  excuse  AFA's 
preceding   rule  violation.    Indeed,  the   Media  Bureau 
explicitly stated that its action was ``without prejudice to 
whatever action, if any, the Commission deems appropriate in 
light of  AFA's apparent violation of  the Commission's main 
studio  requirements.''16   Likewise, every  permittee  that 
constructs a station and obtains  a license for that station 
must first be found to serve the public interest, as AFA was 
in this case.   However, such a finding does  not excuse the 
permittee from complying with any of the Commission's rules, 
which is  why the Media  Bureau specifically noted  that its 
action  was without  prejudice to  a subsequent  enforcement 
     B.  AFA Willfully Failed to Respond in Full to a Bureau 

     8.  Section 403 of the Act authorizes the Commission to 
institute on  its own motion  any inquiry into,  inter alia, 
any matter  relating to  the enforcement of  the Act  or the 
Commission's  rules.17   Section  308(b) provides  that  the 
Commission  ``may  require  from an  applicant  or  licensee 
further written statements of  fact during the license term. 
.  . .''18   Pursuant  to that  and  other authority,19  the 
Bureau ordered AFA to  provide certain information.  AFA did 
not  do  so.  Out  of  nine  categories of  information  and 
documents the  Enforcement Bureau's letter of  inquiry dated 
November  13,  2003  directed  AFA to  provide,  Mr.  Vaughn 
responded to two, offering no explanation for not responding 
to the other categories.20

     9.  AFA admits its  ``failure to provide a satisfactory 
response,'' but  argues that this failure  ``was not willful 
but  confused.''21   AFA  argues   that  ``it  is  sometimes 
confusing to the public to understand the status of a matter 
in  one  department  that   was  previously  resolved  by  a 
different  Bureau.''22    AFA's  argument lacks  merit.   As 
noted  above, the  Media  Bureau explicitly  noted that  its 
actions  were without  prejudice  to further  action by  the 
Commission  ``in light  of AFA's  apparent violation  of the 
Commission's  main studio  requirements.''23  Moreover,  the 
first sentence  of the Enforcement Bureau  letter of inquiry 
that  AFA  largely  ignored  stated  that  the  Bureau  ``is 
investigating allegations  that [AFA]    . . .  violated the 
Commission's broadcast main studio  rule.''24  Both of these 
documents placed AFA on notice that its actions were subject 
to  investigation  and   possible  enforcement  action.   In 
response, AFA  unilaterally chose to ignore  the Enforcement 
Bureau's  inquiry  in  seven   of  the  nine  categories  of 
information sought.25   Thus, we find no  basis for reducing 
or eliminating the proposed $3,000 forfeiture for failing to 
comply with a Bureau order.

     10.  ACCORDINGLY, IT IS ORDERED THAT, pursuant to 
section 503(b) of the Communications Act of 1934, as 
amended, 47 U.S.C.  503(b), and section 1.80 of the 
Commission's rules, 47 C.F.R.  1.80, American Family 
amount of $10,000 for willfully and repeatedly violating the 
Commission's main studio rule and for willfully failing to 
comply with a Bureau order.

     11.  Payment of the forfeiture may be made by mailing a 
check or similar instrument, payable to the order of the 
Federal Communications Commission.  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, Illinois 60661.  
Payment by wire transfer may be made to ABA Number 
071000013, receiving bank Bank One, and account number 

     12.  Requests for payment of the full amount of the 
forfeiture under an installment plan should be sent to: 
Chief, Credit and Management Center, 445 12th Street, S.W., 
Washington, D.C. 20554.26

     13.  IT IS FURTHER ORDERED that a copy of this Order 
shall be sent, by Certified Mail/Return Receipt Requested, 
to Patrick J. Vaughn, General Counsel, American Family 
Association, P.O. Drawer 2440, Tupelo, MS 38803.


                         David H. Solomon
                         Chief, Enforcement Bureau

1  See  47 C.F.R.   73.1125(a); see  also Main  Studio and 
Program Origination Rules, 2 FCC Rcd 3215 (1987), clarified 
3 FCC Rcd 5024 (1988);  Jones Eastern of Outer Banks, Inc., 
6 FCC  Rcd 3615 (1991)  (``Jones Eastern I''),  clarified 7 
FCC Rcd 6800 (1992) (``Jones Eastern II'').

2    American  Family   Association,  Notice   of  Apparent 
Liability for Forfeiture, 19 FCC Rcd 14072 (EB 2004).

3  Letter from Patrick J.  Vaughn, General Counsel, AFA, to 
Marlene  H.  Dortch,  Secretary of  the  Commission,  dated 
September 5, 2002.

4  Letter  from Peter  H. Doyle,  Chief, Audio  Division of 
Commission's  Media Bureau,  to  Patrick  J. Vaughn,  dated 
October 31, 2002.

5   Letter   from  William   D.  Freedman,   Deputy  Chief, 
Investigations and  Hearings Division,  Enforcement Bureau, 
to Mr. Vaughn, dated November 13, 2003.

6  NAL, 19 FCC Rcd at 14074,  6.

7  Id., 19 FCC Rcd at 14077,  15.

8  Letter from  Patrick J. Vaughn to  William H. Davenport, 
Chief,  Investigations and  Hearings Division,  Enforcement 
Bureau, dated August 24, 2004 (``Response'').

9  Letter from  Patrick J. Vaughn to  Marlene Dortch, dated 
September 5, 2002.

10 See  American Family  Association, Forfeiture  Order, 17 
FCC Rcd 18,135 (EB 2002), recon. denied 18 FCC Rcd 2413 (EB 

11 See 47 C.F.R.  1.80(b)(4), Note at Section II, Downward 
Adjustment   Criteria,   #2   (good  faith   or   voluntary 

12 See American Family Association, 18 FCC Rcd at 2414  4.

13 See 47  C.F.R.  1.80(b)(4), Note at  Section II, Upward 
Adjustment Criteria, ## 3 (intentional violation), 5 (prior 
violations  of any  FCC requirements),  and 7  (repeated or 
continuous violation).

14 See Liability of KXOJ,  Inc., Memorandum Opinion & Order 
and  Forfeiture Order,  15 FCC  Rcd 21812  n. 1  (MMB 1999) 
(``[L]icensees are  not excused  from their duty  to comply 
with  the main  studio  rule during  the  pendency of  rule 
waiver requests'').   In addition,  the rule  itself states 
very  clearly that  prior approval  is needed  to locate  a 
studio outside any  of the locations specified  in the rule 
and  that the  filing of  a waiver  request does  not imply 
approval of that request.  See 47 C.F.R.  73.1125(d)(2).

15 Response at 3. 

16 Letter, n. 4 supra, at  3.  We further note that Station 
KBMP's operation pursuant to  program test authority has no 
effect  on AFA's  obligations under  the Commission's  main 
studio  rule.   The  Commission's   rule  on  program  test 
operation specifically states  that ``[a]ll operation under 
program test  authority shall be in  strict compliance with 
the  rules  governing  broadcast  stations  and  in  strict 
accordance with representations made in the application for 
license pursuant to which  the tests were authorized.''  47 
C.F.R.   73.1620(d).  In this  regard, AFA notes  that its 
license application erroneously  certified that the station 
was  operating in  compliance  with the  main studio  rule, 
rather than noting  that it had requested a  waiver of that 
rule.   Response at  2-3.   The Bureau  was  aware of  this 
error,  but  did  not  cite  the error  in  the  NAL.   The 
erroneous certification  can only be viewed  as inadvertent 
in  light  of  AFA's  prior  filings  with  the  Commission 
concerning Station KBMP(FM).

17 See  47 U.S.C.  403.

18 47 U.S.C.  308(b).  See also 47 C.F.R.  73.1015.

19 See 47 U.S.C.  154(i),(j).

20 Response at 2.  The Response notes that AFA's letter did 
include a sentence stating, ``Please contact me if you have 
further questions regarding AFA's compliance with 47 C.F.R. 
Section 73.1125  at KBMP-FM, Enterprise,  Kansas.''  Letter 
from Patrick J.  Vaughn to David Brown,  dated November 21, 
2003.  However,  that is  no substitute for  providing, for 
each   category  of   information  requested,   either  the 
information  requested  or an  explanation  as  to why  the 
information was  not available.  Licensees are  expected to 
respond  fully   to  requests  for  information   from  the 
Commission.    See,   e.g.,   SBC   Communications,   Inc., 
Forfeiture  Order,  17  FCC  Rcd 7589,  7591    4  (2002).  
Allowing   licensees  to   provide  incomplete   responses, 
requiring the Bureau to do  follow-up inquiries, would be a 
substantial and  wholly unnecessary  drain on  the Bureau's 

21 Response at 2.  It is not pertinent whether a licensee's 
acts or omissions were specifically intended to violate the 
applicable law or  rule.  The term ``willful,''  as used in 
Section 503(b)  of the  Act, has  been interpreted  to mean 
simply that the acts or omissions were committed knowingly.  
See Liability of  Cate Communications Corp., 60  RR 2d 1386 
(1986).  In this case, AFA does not argue that its Response 
was submitted without its knowledge.

22 Id. at 1. 

23 Supra at  7 and n. 4 (emphasis added).

24 Supra at  2 and n. 5.

25 In this  regard, we note that AFA  could have alleviated 
its  alleged confusion  by simply  requesting clarification 
from the Enforcement Bureau  staff person identified as the 
contact person in  the letter of inquiry prior  to the date 
AFA's  Response was  due.  (This  is the  course of  action 
taken in  the tax matter  example described on page  one of 
AFA's    Response,   so    that   situation    is   clearly 
distinguishable from the present case.)  AFA did not do so.

26 See 47 C.F.R.  1.1914.