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                         Before the
              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 
19, 2004

By the Chief, Enforcement Bureau:

                      I.   INTRODUCTION

     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.   

                      II.   BACKGROUND

     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 
power level. 

     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 
staff. ''8  

                   III.        DISCUSSSION

     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 
reconsideration.   

     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  

                      ORDERING CLAUSES

     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.

                              FEDERAL         COMMUNICATIONS 
COMMISSION

                              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.

5 Id.  

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.