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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Power Radio Corporation ) File No. EB-04-SE-273
Licensee of Radio Station KXPW-LP ) NAL/Acct. No. 200532100006
Georgetown, Texas ) FRN 0006560650
Facility Identification Number 133411 )
Adopted: June 27, 2006 Released: June 29, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of three thousand dollars ($3,000) to Power Radio
Corporation ("Power Radio"), licensee of Low Power ("LP") FM Station
KXPW-LP in Georgetown, Texas, for willful violation of Section
73.875(c) of the Commission's Rules ("Rules"). The noted violation
involves Power Radio's failure to file a modification of license
application on FCC Form 319 within ten days of replacing its
2. Section 73.875 of the Rules provides that LPFM facility modifications
to replace an antenna with one of the same or different number of
antenna bays may be made without prior authorization from the
Commission provided the height of the antenna radiation center is not
more than 2 meters above or 4 meters below the authorized values. A
modification of license application on FCC Form 319 must be submitted
to the Commission within 10 days of commencing program test
operations. In response to the Division's August 24, 2004 Letter of
Inquiry ("LOI"), Power Radio admitted it replaced its authorized
three-bay antenna with a four-bay antenna without filing an FCC Form
3. On December 10, 2004, the Enforcement Bureau's Spectrum Enforcement
Division ("Division") released a Notice of Apparent Liability for
Forfeiture ("NAL") finding that Power Radio failed to timely file an
FCC Form 319 ten days after it replaced Station KXPW-LP's authorized
three-bay antenna with a four-bay antenna. The NAL proposed a $3,000
forfeiture based on Power Radio's failure to file the required forms
in apparent willful violation of Section 73.875(c) of the Rules.
4. In its January 10, 2005 response to the NAL, Power Radio seeks
cancellation or reduction of the proposed forfeiture due to the nature
of the violation, the station's remedial response to the violation
upon FCC notification, and the licensee's inability to pay. Power
Radio claims it is a new operator with decreasing revenues and
submitted its federal tax return for 2003 in support of these claims.
5. On the basis of the information before us, we conclude that Power
Radio willfully violated Section 73.875(c) of the Rules. Specifically,
Power Radio, in its response to our LOI, has admitted to committing
the acts leading to the violation but asserts that due to a
misunderstanding with its engineering consultant, it was unaware of
the need to file an application. Section 312(f)(1) of the
Communications Act of 1934, as amended ("Act"), provides that "the
term `willful,' when used with reference to the commission or omission
of any act, means the conscious or deliberate commission or omission
of such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission ...." A violation
resulting from an inadvertent mistake or a failure to become familiar
with the FCC's requirements is considered a willful violation.
6. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and the
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In assessing
forfeitures, Section 503(b)(2)(D) of the Act requires that we 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. We have considered Power Radio's response to the NAL in light of the
above statutory factors, our Rules, and the Forfeiture Policy
Statement, and conclude that no further reduction of the proposed
forfeiture amount is warranted. Power Radio claims that the forfeiture
amount is excessive based on the corporation's position as a new
operator, the insignificance of the violation, and the subsequent
filing of the appropriate documentation on October 18, 2004. We reject
8. First, we find no merit to the claim that Power Radio's violation of
the Rules is excused by its status as a new operator. All Commission
licensees - regardless of the length of their status as such - are
expected to know and comply with the FCC's Rules. In similar cases on
multiple occasions, the Commission has declined to consider lack of
knowledge of its rules and regulations as justification for violations
thereof. To do otherwise would jeopardize the Commission's core
mission to regulate interstate and international communications by
wire and radio in a manner aimed at promoting safety of life and
9. Second, designation of a violation as minimal or insignificant
generally will not suffice to reduce the forfeiture amount. Section
73.875(c) of the Rules requires licensees to submit the FCC Form 314
within 10 days of commencing program test operations. We do not agree
that filing an FCC Form 314 on October 18, 2004, two months after
making LPFM modifications, is a minor violation. Further, it is not a
minor violation when considering the potential impact on public safety
if LPFM modifications do not comply with the Commission's
radiofrequency radiation guidelines.
10. Furthermore, we note that Power Radio undertook to file the form and
inform the FCC of the new antenna only after a complaint was
registered and the Division initiated an investigation of the
violation. Therefore, we conclude that Power Radio's subsequent
remedial actions are not mitigating circumstances that would warrant a
further reduction of the forfeiture amount.
11. Power Radio also asserts an inability to pay the forfeiture amount
based on decreasing revenues and an inability to reduce expenses. In
support of these assertions, Power Radio supplied the corporation's
2003 federal tax return. In analyzing a financial hardship claim, the
Commission generally has compared the licensee's gross revenues with
the forfeiture amount when determining whether a licensee is able to
pay the assessed forfeiture. After reviewing Power Radio's supporting
documentation, we find that it has generated sufficient gross revenues
such that payment of the forfeiture will not pose a financial
hardship. Power Radio's assertion of decreasing revenues is
insufficient to support reduction of the forfeiture.
12. In sum, Section 1.80(b)(4) of the Rules sets a base forfeiture amount
of $3,000 for failing to file a required form. In the instant case, we
do not believe a reduction or cancellation of the proposed forfeiture
IV. ordering Clauses
13. 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, Power
Radio Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
three thousand dollars ($3,000.00) for a violation of Section
73.875(c) of the Rules.
14. 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. Payment of the forfeiture must be made
by 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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. A request for full payment under an installment plan
should be sent to: Associate Managing Director - Financial Operations,
445 12^th Street, SW, Room 1A625, Washington, D.C. 20554.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Power Radio
Corporation, P.O. Box 73, Georgetown, Texas 78627-0073 and to Lauren
Lynch Flick, Esq., Shaw Pittman LLP, 2300 N Street, NW, Washington,
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement Division
47 C.F.R. S 73.875(c).
Program test operations at the full authorized ERP may commence
immediately upon installation pursuant to Section 73.1620(a)(1) of the
Rules, 47 C.F.R. S 73.1620(a)(1).
See Letter from Joseph P. Casey, Chief Spectrum Enforcement Division,
Enforcement Bureau, to James Aultfather, President, Power Radio
Corporation (October 12, 2004).
See Letter from James Aultfather, President, Power Radio Corporation, to
Spectrum Enforcement Division, Enforcement Bureau (October 18, 2004).
Power Radio Corporation, 19 FCC Rcd 23735 (Enf. Bur., Spectrum Enf. Div.,
Id. at P 5-6.
Id. at P 3 (Power Radio asserted that due to a misunderstanding with its
engineering consultant, it did not know that it was required to file
anything with the FCC for replacing an antenna with one that did not
change the licensed HAAT by more than two meters above or four meters
below that authorized by its license).
47 U.S.C. S312(f)(1).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard
Communications Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting Co., Inc.,
96 FCC 2d 1235, 1242 (1984).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 U.S.C. S 503(b)(2)(D).
The application was filed six days after the Division initiated its
inquiry of the violation, via its LOI. See File No. BMLL - 20041018AAW.
Sitka Broadcasting Co., Inc., 70 FCC 2d 2375, 2378 (1979) (denying a
mitigation claim of a broadcast licensee who claimed it was unaware that
it could have applied for a waiver of operator requirements, stating that
"Licensees are expected to know and comply with the Commission's rules")
citing Lowndes County Broadcasting Co., 23 FCC 2d 91 (1970) (denying a
mitigation claim of a broadcast licensee who claimed it did not know it
was in violation of the terms of a station license) and Emporium
Broadcasting Co., 23 FCC 2d 868 (1970) (denying a mitigation claim of a
broadcast licensee who argued it was unaware of the availability of a
temporary Commission waiver of the operator requirements, stating "the
Commission has never considered lack of knowledge of its rules and
regulations as justification for violations thereof").
See, e.g., KNFL, Inc., 15 FCC Rcd 10286 PP 6, 11 (Enf. Bur. 2000), recon.
denied, 15 FCC Rcd 25527 (Enf. Bur. 2000); Mapa Broadcasting, LLC, 17 FCC
Rcd. 10519 PP 8, 11 (Enf. Bur. 2002); AGM-Nevada, LLC, 18 FCC Rcd. 1476 PP
5, 8 (Enf. Bur. 2003); Lakewood Broadcasting Service, Inc., 37 FCC 2d 437
P 6 (1972).
See 4M of Richmond, Inc., 19 FCC Rcd. 15,447 P 10 (Enf. Bur. 2004)
(duration of "only" four days did not make the violation "minor."), recon.
denied, 20 FCC Rcd 14368 (Enf. Bur. 2005).
See PJB Communications of Virginia, Inc., 7 FCC Rcd at 2088 (the
Commission explained that licensees have a duty to operate in accordance
with Commission rules...there is an independent public interest in
licensees complying with the rules.); see also 47 C.F.R. S 73.875(c)
(modification of license applications must contain an exhibit
demonstrating compliance with the Commission's radiofrequency radiation
See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21861, 21864-75
(2002); Sonderling Broadcasting Corp., 69 FCC 2d 289, 291 (1978); Odino
Joseph, 18 FCC Rcd 16522, 16524 P 8 (Enf. Bur. 2003); South Central
Communications Corp., 18 FCC Rcd 700, 702-03 P 9 (Enf. Bur. 2003);
Northeast Utilities, 17 FCC Rcd 4115, 4117 P 13 (Enf. Bur. 2002); AM
Broadcast Station KTNC and C.R. Communications, Inc., DA 99-2960 P 5 (Enf.
See Forfeiture Policy Statement, 12 FCC Rcd at 17106-07 P 43.
See PJB Communications of Virginia, Inc., 7 FCC Rcd at 2089 (forfeiture
not deemed excessive where it represented approximately 2.02 percent of
the violator's gross revenues); Local Long Distance, Inc., 15 FCC Rcd
24385, 24389 P 11 (2000), recon. denied, 16 FCC Rcd 10023, 10025 P 6
(2001) (forfeiture not deemed excessive where it represented approximately
7.9 percent of the violator's gross revenues); Hoosier Broadcasting
Corporation, Inc., 14 FCC Rcd 3356 (CIB 1999), recon. denied, 15 FCC Rcd
8640, 8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
Here, the forfeiture does not exceed a percentage of Power's gross
revenues such that it would be considered excessive.
PJB Communications, 7 FCC Rcd at 2089; Commonwealth Broadcasting Corp., 19
FCC Rcd. 8026, 8029 (Media Bur. 2004), recon granted on other grounds, 20
FCC Rcd 17985 (Media Bur. 2005).
47 C.F.R. S 1.80(b)(4).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
(Continued from previous page)
Federal Communications Commission DA 06-1325
Federal Communications Commission DA 06-1325