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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Maria L. Salazar ) File No. EB-02-KC-174
Licensee, Station KTCM(FM) ) NAL/Acct. No. 200232560011
Kingman, Kansas ) FRN 0003-7578-12
MEMORANDUM OPINION AND ORDER
Adopted: March 10, 2004 Released: March 16, 2004
By the Commission:
1. By this Memorandum Opinion and Order
(``Order''), we grant in part and deny in part the April
24, 2003, petition for reconsideration filed by Maria L.
Salazar,1 (``Salazar'') licensee of Station KTCM(FM),
Kingman, Kansas and owner of antenna structure # 1057462,
of the Forfeiture Order issued on April 22, 2003,2 and
reduce the assessed forfeiture against Salazar to thirty-
four thousand dollars ($34,000). The Forfeiture Order
imposed a monetary forfeiture in the amount of thirty-
nine thousand dollars ($39,000) against Salazar, for
willfully and repeatedly violating Sections 301 and
303(q) of the Communications Act of 1934, as amended,
(the ``Act'')3 and Sections 11.35(a), 17.51, 73.1125(a),
73.1350(a) and 73.3526 of the Commission's Rules.
2. On April 8, 2002, agents from the
Commission's Kansas City, Missouri Field Office (``Field
Office'') conducted an on-site investigation of Station
KTCM(FM). The agents determined that Salazar was
licensed to operate Station KTCM(FM) and that the license
specified Kingman, Kansas as the station's community of
license. However, the agents found that the station had
been transmitting from the Latino Boom Nightclub in
Wichita, Kansas -- a location that was outside its
community of license and that had not been authorized by
the Commission.4 Additionally, the agents found that the
station's main studio had been relocated to and had been
originating programming from the Latino Boom Nightclub --
a relocation that was outside the prescribed main studio
perimeters and that had not been authorized by the
Commission.5 The agents further found that the top
flashing beacon and three of the four side lamps were not
lit on the station's associated antenna structure #
1057462, and that the outage had not been reported to the
Federal Aviation Administration (``FAA''). The agents
also found that station's main studio did not have any
Emergency Alert System (``EAS'') equipment installed.
Finally, the agents found that Station KTCM(FM) did not
maintain any public inspection files. At the time of
inspection, Salazar did not deny the agents' findings.
As a result of the inspection, on April 9, 2002, the
agents issued Salazar a Warning regarding the
unauthorized operation of radio transmitting equipment.
Salazar filed a timely response to the Warning.6
3. The Field Office's investigation culminated
in the Commission's issuance of a Notice of Apparent
Liability for Forfeiture (``NAL'')7 that proposed a
$39,000 forfeiture against Salazar for her apparent
willful and repeated violations of Sections of the Act
and the Commission's Rules. The NAL proposed a $4,000
forfeiture for Salazar's apparent violations of Section
301 of the Act and Section 73.1350(a) of the Commission's
Rules (failure to operate a station at an authorized
location),8 a $10,000 forfeiture for her apparent
violations of Section 303(q) of the Act and Section 17.51
of the Commission's Rules (failure to maintain prescribed
obstruction lighting for antenna structure # 1057462),9
an $8,000 forfeiture for her apparent violations of
Section 11.35(a) of the Commission's Rules (failure to
install and maintain Emergency Alert System (``EAS'')
equipment),10 a $7,000 forfeiture for her apparent
violation of Section 73.1125(a) of the Commission's Rules
(failure to maintain a main studio at an authorized
location),11 and a $10,000 for her apparent violation of
Section 73.3526 of the Commission's Rules (failure to
maintain a public inspection file).12
4. The Commission issued a Forfeiture Order on
April 22, 2003,13 having had no record of receiving a
response to the NAL.14 On April 24, 2003, the Commission
received Salazar's petition for reconsideration. In her
petition, Salazar does not dispute the Commission's
findings in the NAL. As discussed below, Salazar
nevertheless seeks a substantial reduction in the
assessed forfeiture, based upon her inability to pay, her
unfamiliarity with Commission requirements, her efforts
to correct the noted violations, and her belief that the
Commission's base forfeiture scheme is arbitrary and
5. The forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,15
Section 1.80 of the Rules,16 and The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines.17
In examining Salazar's petition, Section 503(b)(2)(D) 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 other such matters as justice may require.18 We
will respond to each of Salazar's claims separately
6. First, Salazar claims she is unable to pay
the assessed forfeiture.19 Salazar describes herself as a
single mother, who is the sole support for her eleven
year-old son and whose income is solely derived from a
restaurant,20 and Station KTCM. According to Salazar,
the station has lost money ``every year since she
acquired it'' in 1996.21 Absent a substantial reduction
in the forfeiture amount, Salazar claims that she likely
will be ``force[d] . . . to discontinue operating Station
KTCM . . . and declare personal bankruptcy.''22 In
support of her claim, Salazar submits her individual tax
returns and Station KTCM's profit and loss statements for
1999, 2000 and 2001.
7. In analyzing an economic hardship claim, the
Commission generally has looked to gross revenues as a
reasonable and appropriate yardstick in determining
whether a violator is able to pay the assessed
forfeiture.23 Indeed, the Commission has stated that
where the violator's gross revenues are sufficiently
large, the fact that net losses are reported, alone, does
not necessarily signify an inability to pay.24 We note
that Salazar's 1999, 2000 and 2001 tax returns listed the
restaurant and the station, claimed no dependents, and
reported steadily increasing gross income and
particularly significant revenue gains in 2001. We
further note, contrary to Salazar's assertions, that
Station KTCM's statements reflect that it only had a loss
in 2000, and that it had profits in 1999 and 2001.
Having reviewed Salazar's submitted documentation, we
find that her significant gross revenues reported in 2001
represent reliable and objective evidence of her ability
to pay. Therefore, we are not persuaded that a
substantial reduction of the forfeiture is warranted
However, we conclude that a modest reduction of the
assessed forfeiture amount for the multiple noted
violations, from $39,000 to $34,000, is justified. The
forfeiture, as reduced, represents a percentage of
Salazar's 2001 gross revenues comparable to that assessed
against gross revenues in prior cases. ,25
8. Second, Salazar claims that she was unfamiliar
with the Commission's Rules, and that, in FCC compliance
matters, she ``exclusively'' relied upon and followed the
advice of Charlie Babbs, since deceased, who ``held
himself out as a professional and experienced broadcast
engineer.''26 Specifically, Salazar represents that in
2000, upon Mr. Babbs's recommendation, she relocated the
operations and the main studio of Station KTCM from the
authorized site in Kingman, Kansas to the Latin Boom
Nightclub in Wichita, Kansas, to avoid interference
problems, which prevented the station's Spanish language
programming from reaching ``the Spanish speaking
residents of Wichita and the Wichita merchants that the
[sic] patronized.''27 Salazar claims that Mr. Babbs did
not advise her that it was ``illegal'' to operate from an
unauthorized site, that there were any main studio and
public file requirements, and, presumably, that there
were also antenna structure lighting and EAS
9. A licensee is charged with the responsibility
of knowing and complying with all the requirements of the
Act and the Commission's Rules.29 That responsibility is
not lessened, mitigated or excused because the licensee
relied upon the erroneous advice of an employee or
independent contractor.30 Because Salazar's alleged
reliance on the consulting engineer's advice does not
lessen, mitigate or excuse her responsibility to be
familiar and comply with the requirements of the Act and
the Commission's Rules, we find no basis to reduce the
base forfeiture amounts assessed for each of the multiple
10. Third, Salazar claims that ``immediately
after the FCC inspection,'' she ceased operations from
the unauthorized location, sought to remedy the other
noted violations, and engaged communications counsel to
advise her in FCC compliance matters.31 The
Commission's long established policy finds that remedial
measures, while commendable, do not lessen, mitigate, or
excuse past infractions of the Act or the Commission's
Rules32 -- particularly when such measures are instituted
only after Commission investigation and notice of
violations.33 Thus, Salazar's subsequent remedial action
provides no basis to reduce the base forfeiture amounts
assessed for each of the multiple noted violations.
11. Finally, while Salazar admits that she
operated the station at an unauthorized location in
Wichita, Kansas, and that she failed to maintain
prescribed antenna structure lighting, EAS equipment and
public information files, she contends the Commission's
assessed forfeiture amounts are excessive.34 According
to Salazar, the failure to maintain a reasonably
accessible main studio and to maintain any public
information file material (requirements which serve
``some valid public interest purposes'') ``pales in
comparison to very real and immediate harm to the public
and the public interest'' that results from the operation
of an unlicensed station (which potentially, ``and
likely did, cause interference''), unlit towers (which
``posed a serious risk to air navigation''), and lack of
EAS equipment (which precluded emergency system
participation).35 Salazar concludes that it is
``arbitrary and capricious'' to set base forfeiture
amounts for violations of the main studio and public file
requirements significantly higher than those set for
violations of the EAS equipment, lighting and licensing
12. In adopting the forfeiture guidelines and
implementing rules, the Commission stated that it ``will
initially assess . . . violations [of the Act and the
Commission's Rules] at the statutory amount,'' but, as
appropriate, will adjust the base amount upward or
downward based on the factors set out in Section 503 of
the Act and particular facts presented in each case.37
Salazar's contentions notwithstanding, the Commission has
rejected arguments that characterize violations of
certain Rules, such as the public information file rule,
as minor and deserving of reduced forfeitures.38 We find
Salazar's arguments unpersuasive, and thus find no basis
to reduce the base forfeiture amounts assessed for each
of the multiple noted violations.39
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act40 and Section 1.106 of the
Rules,41 the Petition for Reconsideration filed by Maria
L. Salazar of the Commission's April 22, 2003 Forfeiture
Order for NAL No. 200232560011 IS GRANTED TO THE EXTENT
NOTED HEREIN AND DENIED IN ALL OTHER RESPECTS.
14. Payment of the $34,000 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.42
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. 200232560011
and FRN 0003-7578-12. Requests for full payment under
an installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington,
15. IT IS FURTHER ORDERED that a copy of this
Order shall be sent by First Class and Certified Mail
Return Receipt Requested to David Tillotson, Esq.,
counsel for Maria L. Salazar, at 4606 Charleston Terrace,
N.W., Washington, D.C. 20007-1911.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
- Unhandled Picture -
1 The Commission received the pleading, captioned ``Petition for
Reconsideration,'' two days after it issued the Forfeiture Order
in this proceeding. See Facsimile from David Tillotson, Esq. to
Ricardo Durham, Deputy Division Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission
(April 24, 2003) (attaching a copy of the pleading). Mr.
Tillotson provided a date-stamped copy of the pleading, which
showed that it was filed on August 12, 2002, within thirty days
of the release of the Notice of Apparent Liability in Maria L.
Salazar, 17 FCC Rcd 14090 (2002) (``NAL''). The Commission,
however, has no record of receiving the pleading. We will treat
and consider the pleading as a petition for reconsideration of
the Forfeiture Order under 47 C.F.R. § 1.106.
2 Maria L. Salazar, 18 FCC Rcd 7960 (2003) (``Forfeiture
3 47 U.S.C. §§ 301, 303(q).
4 The Latin Boom Nightclub is located at 1514 West 21st Street
North, Wichita, Kansas.
5 Absent a Commission waiver, a broadcast station's main studio
must be maintained in a reasonably accessible location (i.e.,
within the station's community of license, within the principal
contour of any broadcast station licensed to the station's
community of license, or within 25 miles from the reference
coordinates of center of the station's community of license).
See 47 C.F.R. §§ 73.1125(a)(1)-(3), (d)(2). Here, Salazar never
sought and the Commission never granted authorization to move
Station KTCM(FM)'s main studio to the Latin Boon Nightclub. The
Latin Boom Nightclub was outside Kingman, Kansas, was 12.6 miles
outside the principal contour of Station KCVW(FM) (the only other
broadcast station licensed to Kingman, Kansas), and was 41.9
miles from the reference coordinates of Kingman, Kansas, and, as
such, was not located within the parameters of the main studio
6 See Letter from Maria L. Salazar to Federal Communications
Commission, Enforcement Bureau, Kansas City Office (April 18,
7 See note 1, supra.
8 47 U.S.C. § 301; 47 C.F.R. § 73.1350(a).
9 47 U.S.C. § 303(q); 47 C.F.R. § 17.51.
10 47 C.F.R. § 11.35(a).
11 47 C.F.R. § 73.1125(a).
12 47 C.F.R. § 73.3526
13 See note 2, supra.
14 See note 1, supra.
15 47 U.S.C. § 503(b).
16 47 C.F.R. § 1.80.
17 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
(``Forfeiture Policy Statement'').
18 47 U.S.C. § 503(b)(2)(D).
19See Petition at 2.
20 The restaurant, the Taco Loco, is located at 2247 N. Broadway,
Wichita, Kansas. Salazar represents that the restaurant was
destroyed by fire and has not reopened for lack of funds and lack
of insurance. See Petition at 4. Field Office agents, however,
have reported that the restaurant was only been partially
destroyed by fire, has reopened, and is currently operating.
21 Id. at 2.
22 Id. at 6.
23 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
¶ 8 (1992); see also Forfeiture Policy Statement, 12 FCC Rcd at
17106-07 ¶ 43.
24 See, e.g., Local Long Distance, Inc., 15 FCC Rcd 24385 (2000),
recon. denied, 16 FCC Rcd 10023, 10025 ¶ 6 (2001); Independent
Communications, Inc., 14 FCC Rcd 9605, recon. denied, 15 FCC Rcd
16060, 16060 ¶ 2 (2000); PJB Communications of Virginia, Inc., 7
FCC Rcd 2088, 2089 ¶ 8 (1992).
25 See Local Long Distance, Inc., 16 FCC Rcd at 10025, ¶6 and
Hoosier Broadcasting Corp., 15 FCC Rcd at 8641, ¶7.
26 Petition at 3.
27 Id. at 2, 3. In this connection, Salazar represents that
Translator Station K261BL, which caused the interference
problems, has since ceased operations. Id. at 4.
28 Id. at 3.
29 See Forfeiture Policy Statement, 12 FCC Rcd at 17099 ¶ 22; see
also Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 ¶ 7 (1994);
Wagenvoord Broadcasting Co., 35 FCC 361, 361-62 ¶ 3 (1972); L.T.
Simes II and Raymond Simes, 18 FCC Rcd 8977, 8980 ¶ 11 (Enf. Bur.
2003); Maritel Mississippi River, Inc.¸ 18 FCC Rcd 1481, 1484 ¶
10 (Enf. Bur. 2003); Joy Public Broadcasting Corp., 14 FCC Rcd
11326, 11328 ¶ 7 (CIB 1999).
30 See L.T. Simes II and Raymond Simes, 18 FCC Rcd at 8980 ¶ 11;
Joy Public Broadcasting Corp., 14 FCC Rcd at 11328 ¶ 7. In a
similar case, the Commission rejected a request to reduce a
forfeiture based on the licensee's reliance on advice of a
consulting engineer, since deceased. See Wagenvoord
Broadcasting Co., 35 FCC at 361-62 ¶ 3.
31 Petition at 3-4.
32 See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 ¶ 14
(2002); KGVL, Inc., 42 FCC 2d 258, 259 (1973); see also Maritel
Mississippi River, Inc., 18 FCC Rcd at 1484 ¶ 10.
33 See, e.g., Max Media of Montana, LLC, DA 03-3276, 2003 WL
22387375 ¶ 11 (Enf. Bur. October 21, 2003); East Tennessee Radio
Group, L.P., DA 03-868, 2003 WL 1526638 ¶ 7 (Enf. Bur. March 26,
34 See Petition at 6-8.
35 Id. at 7.
36 Id. at 8.
37 See Forfeiture Policy Statement, 12 FCC Rcd at 17100 ¶ 26.
38 Id. at 17104-05 ¶ 39. In this connection, we note that the
Commission's public information file and the main studio rules,
respectively, safeguard the public's ability to assess the
station's service and to meaningfully participate at the
station's renewal process, and ensure the station's accessibility
to and nexus with its community, to serve and respond to
community programming needs. See Forfeiture Policy Statement, 12
FCC Rcd at 17104-05 ¶ 39; Amendment of Sections 73.1125 and
73.1130 of the Commission's Rules, the Main Studio and Program
Origination Rules for Radio and Television Broadcast Stations, MM
Docket No. 860406, 2 FCC Rcd 3215, 3219 ¶¶ 36-38 (1987),
modified, 3 FCC Rcd 5024 (1988). As such, the public information
and main studio requirements are integral components of a
licensee's obligation to serve the public interest, and meet its
community service obligations. See 47 U.S.C. § 307(a).
39 Indeed, given the gravity and duration of the violations, the
facts presented may have warranted an upward adjustment of the
base forfeiture amounts.
40 47 U.S.C. § 405.
41 47 C.F.R. § 1.106.
42 47 U.S.C. § 504(a).
43 See 47 C.F.R. § 1.1914.