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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
North American Broadcasting ) File No. EB-02-SD-197
Co., Inc. ) NAL/Acct. No. 200232940007
Licensee of KFNX(AM) ) FRN 0007-2982-68
Cave Creek, Arizona
MEMORANDUM OPINION AND ORDER
Adopted: February 17, 2004 Released: February
By the Chief, Enforcement Bureau:
1. By this Memorandum Opinion and Order (``Order''),
we deny the February 25, 2003 petition for reconsideration
filed by North American Broadcasting Co., Inc. (``North
American''),1 licensee of KFNX(AM), Cave Creek, Arizona of
the Forfeiture Order released on January 30, 2003.2 The
Forfeiture Order imposed a monetary forfeiture in the amount
of four thousand dollars ($4,000) against North American for
willful violation of Section 73.1560(a)(1) of the
Commission's Rules.3 The noted violation involves North
American's failure to reduce transmitter output power as its
station authorization requires.
2. On June 22 and 23, 2002, agents from the
Commission's San Diego, California District Office
(``District Office'') conducted AM broadcast field strength
measurements of Station KFNX(AM) at various locations
throughout the Phoenix, Arizona area at various times
throughout the day and night time hours. Based on the field
strength measurements, the agents determined that Station
KFNX(AM), which was authorized to transmit on frequency 1100
kHz with a daytime operating power of 50 kW and a nighttime
operating power of 1 kW, had not reduced its operating power
at sunset as required.4 Specifically, the agents determined
that, after sunset, Station KFNX(AM) operated at its daytime
power level of 50 kW, fifty times its authorized nighttime
3. The District Office's June 2002 investigation
culminated in the issuance of a NAL,5 that proposed a $4,000
forfeiture against North American for its apparent willful
violation of Section 73.1560 of the Rules.6 On January 30,
2003, having received no response to the NAL, the
Enforcement Bureau (``Bureau'') released a Forfeiture Order,
affirming the NAL's assessed forfeiture.
4. On February 25, 2003, the Bureau received North
American's petition for reconsideration. In its petition,
North American does not deny the NAL's findings. North
American nevertheless seeks a reduction in or cancellation
of the forfeiture, based on its filing for bankruptcy,
claiming that its ``debts vastly exceed its assets'' and
that ``the forfeiture will simply reduce the amount
available to creditors when the bankruptcy is ultimately
concluded.''7 North American also denies that the violation
was willful, characterizing it as an ``isolated incident . .
. result[ing] from inadvertency on the part of the station's
5. In The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, the Commission adopted guidelines
for assessing base forfeiture amounts for violations of the
Act and the Commission's rules, and ``retain[ed] the
discretion to take action in specific cases as warranted.''9
The forfeiture guidelines establish a $4,000 base forfeiture
for exceeding authorized power limits.10 In assessing the
forfeiture, the Commission may adjust the base forfeiture by
taking into account, inter alia, a violator's ability to pay
and other such matters as justice may require.11 It is in
this context, that we consider North American's petition for
6. North American's petition primarily rests upon its
bankruptcy filing as justification for adjustment or
cancellation of the forfeiture. As the NAL correctly noted,
the Commission will consider adjusting or canceling a
forfeiture on the basis of an inability to pay claim only if
the petitioner submits financial documentation (i.e.,
``federal tax returns for the most recent three-year period,
financial statements prepared according to generally
accepted accounting practices, or some other reliable and
objective documentation that accurately reflects the
petitioner's current financial status'').12 In the instant
case, North American did not provide any financial
documentation in support of its requested adjustment or
cancellation of the forfeiture, and thus we have no basis
upon which to assess its inability to pay claim. It should
be noted that the Commission has adjusted or canceled a
forfeiture based on bankruptcy filings in limited
circumstances, where the licensee or regulatee has
relinquished control over the assets.13 However, because
North American did not relinquish control over the station14
and did not submit financial documentation, its bankruptcy
filing, alone, neither precludes the imposition of a
forfeiture15 nor justifies an adjustment or cancellation of
the forfeiture amount for a violation of the Rules.16
7. North American's assertion that the violation was
isolated, inadvertent, and not willful, is without merit.17
Section 503(b)(1)(B) of the Act provides that any person who
``willfully or repeatedly'' fails to comply with any
provision of the Act or any rule, regulation or order issued
by the Commission under the Act ``shall be liable to the
United States for a forfeiture penalty.''18 In this
context, ``willful'' means the conscious and deliberate
commission or omission of an act, irrespective of any intent
to violate statutory or regulatory requirements.19 As a
Commission licensee, North American is responsible and held
accountable for the actions of its staff,20 and, here, it is
undisputed that its staff consciously and deliberately
operated the station at daytime power levels after sunset on
June 22 and 23, 2002.21 By operating the station, we
conclude that North American willfully violated Section
73.1560(a)(1) of the Rules.22
8. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act23 and Section 1.106 of the Rules,24
the Petition for Reconsideration filed by North American
Broadcasting Co., Inc. of the Bureau's January 30, 2003
Forfeiture Order for NAL No. 200232940007 IS DENIED.
9. Payment of the $4,000 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.25 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 should reference NAL/Acct.
No. 200232940007 and FRN- 0007-2982-68. 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. 20554.26
10. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Lauren A. Colby, Esq., counsel for
North American Broadcasting Co., Inc., at 10 E. Fourth
Street, P.O. Box 113, Frederick, Maryland 21705-0113.
David H. Solomon
Chief, Enforcement Bureau
- Unhandled Picture -
1 In its petition for reconsideration, North American
identifies itself as the Debtor in Possession. See
Petition at 1.
2 North American Broadcasting Company, Inc., 18 FCC Rcd 860
(Enf. Bur. 2003).
3 47 C.F.R. § 73.1560(a)(1) (providing that the specified
antenna input power of an AM station ``must be maintained
as near as is practicable to the authorized antenna input
power and may not be less than 90% nor more than 105% of
the authorized power'').
4 The field measurements, which demonstrated the station
was operating at daytime power levels, were taken on June
22, 2003, from ``approximately 6:45 p.m. until 10:30
p.m.,'' and on June 23, 2003, from ``approximately 7:30
p.m. until 10:30 p.m.'' North American Broadcasting
Company, Inc., NAL/Acct. No. 200232940007 (Enf. Bur. San
Diego Office, released August 30, 2002) (``NAL'') at ¶ 3.
6 See note 2, supra.
7 Petition at 2.
8 See Petition, Declaration of Francis Battaglia, President
of North American Broadcasting Co., Inc. at 1.
(``Battaglia Declaration''). In this connection, North
American states that its practice is to reduce operating
power levels at sunset and that its available transmitter
logs document such reductions. Id.
9 12 FCC Rcd 17087, 17093 ¶ 8, recon. denied, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement'').
10 Id. at 17113.
11 See 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4).
12 NAL at ¶ 12.
13 See, e.g., Dennis Elam, Trustee for Bakcor Broadcasting,
Inc., Debtor, 11 FCC Rcd 1137, 1137 ¶ 5 (1996); Interstate
Savings, Inc. d/b/a/ ISI Communications, 12 FCC Rcd 2934,
2936 ¶ 5 (CCB 1997)
14 See note 1, supra.
15 See 11 U.S.C. § 362(b); see also United States v.
Commonwealth Companies, Inc., 913 F.2d 518, 522-26 (8th
Cir. 1990) (excepting from bankruptcy imposed stays, suits
by government to obtain monetary judgment for past
violations of the law); Coleman Enterprises, Inc., 15 FCC
Rcd 24385, 24389 notes 27-28 (2000), recon. denied, 16 FCC
Rcd 10016 (2001) (noting that a bankruptcy filing does not
preclude the Commission from assessing forfeitures for
violations of the Act and Rules).
16 See Adelphi Communications, 18 FCC Rcd 7652, 7654 ¶ 8
(Enf. Bur. 2003) (finding that a Chapter 11 bankruptcy
filing -- alone, without financial documentation -- does
not support an inability to pay claim and thus does not
provide a basis to adjust or cancel an assessed
forfeiture); see also Pinnacle Towers, Inc., 18 FCC Rcd
16365, 16366-67 ¶ 7 (Enf. Bur. 2003); Friendship Cable of
Texas, Inc., 17 FCC Rcd 8571, 8572-73 ¶ 9 (Enf. Bur. 2002).
17 See Battaglia Declaration at 1.
18 47 C.F.R. § 503(b)(1)(B).
19 See 47 U.S.C. § 312(f); see also Southern California
Broadcasting Co., 6 FCC Rcd 4387, 4387-88 ¶ 5 (1991).
20 See Eure Family Limited Partnership, 17 FCC Rcd 21861,
21864-65 ¶¶ 7-8 (2002); Sonderling Broadcasting Corp., 69
FCC 2d 289, 291 ¶ 6 (1978); American Paging, Inc., 12 FCC
Rcd 10417, 10419 ¶ 11 (Enf. Bur. 1997); Dial-A-Page,
Inc., 10 FCC Rcd 8825, 8826 ¶ 5 (Enf. Bur. 1995)
21 See note 4, and accompanying text, supra.
22 North American also claimed that after receiving the
Forfeiture Order, it contracted to install remote
equipment, which would automatically adjust the power
levels at sunset and sunrise and thus ensure compliance
with Section 73.1560(a)(1). See Battaglia Declaration at
1. However, remedial measures, while commendable, do not
lessen, mitigate or excuse past violations of the Act or
the Rules -- particularly when such measures are instituted
only after Commission investigations and actions. See AT&T
Wireless Services, Inc., 17 FCC Rcd 21866, 21871 ¶ 14
(2002); KGVL, Inc., 42 FCC 2d 258, 259 (1973); Max Media of
Montana, LLC, DA 03-3276 ¶ 11 (Enf. Bur. October 21, 2003);
East Tennessee Radio Group, L.P., DA 03-868 ¶ 7 (Enf. Bur.
March 26, 2003).
23 47 U.S.C. § 405.
24 47 C.F.R. § 1.106.
25 47 U.S.C. § 504(a).
26 See 47 C.F.R. § 1.1914.