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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
127, Inc. File Number EB-05-KC-143
Licensee of Station KLFJ NAL/Acct. No. 200632560002
Facility ID# 17137 FRN 0011407814
MEMORANDUM OPINION AND ORDER
Adopted: February 26, 2007 Released: February 28, 2007
By the Assistant Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we deny the petition
for reconsideration filed by 127, Inc. of the Forfeiture Order issued
September 6, 2006. The Forfeiture Order imposed a monetary forfeiture
in the amount of $16,800 on 127, Inc. for the willful and repeated
violation of Sections 73.1125(a) and 73.1745 of the Commission's Rules
("Rules") and the willful violation of Section 73.3526(a) of the
Rules. The noted violations involved 127, Inc.'s failure to maintain a
main studio, operating overpower during nighttime hours, and failure
to make available for inspection the station's public inspection file.
2. In response to a report of a violation, on December 13 and 14, 2005,
an agent from the Commission's Kansas City Office of the Enforcement
Bureau ("Kansas City Office") monitored station KLFJ's signal from a
location in Springfield, Missouri. The agent's monitoring indicated no
power reduction in KLFJ's signal from mid afternoon until after
sunset, which is inconsistent with the terms of the station
authorization. Telephone calls to KLFJ on December 14, 2005 went
unanswered at 9:03 AM, 10:38 AM, 1:05 PM, 2:55 PM and 4:00 PM this
3. On December 15, 2005, the agent contacted the executive assistant to
the station's owner at Surrey Vacation Resorts/Surrey Grand Crown
Resort, by using the phone number provided in KLFJ's EEO Form 396. The
executive assistant stated there was no studio for the radio station
and station programming is done via computer from West Hollywood,
California. She did not know the location of the public file but
suggested checking at the Econo Lodge in Springfield. She stated the
KLFJ phone number listed in the Springfield phone book is supposed to
be answered and is located at the Econo Lodge along with the computer
containing the station's aired material. She provided the phone number
for the contract engineer for KLFJ and stated he would be able to aid
with inspection of the transmitter and equipment located at the Econo
4. Still on the same date, the agent, accompanied by the KLFJ contract
engineer, inspected KLFJ's transmitter site and programming equipment
located in Springfield, Missouri. The transmitter was operating at a
power of 1125 watts. The contract engineer stated that the station had
operated at this power level for two to three months. He stated that
there was no studio or studio equipment for KLFJ. The agent found no
microphone or other audio mixing capabilities that would allow
origination of programming from the Econo Lodge, the transmitter site,
or any other location in Springfield. Station programming material is
uploaded to one of the two computers located in a back room of the
Econo Lodge motel via telephone line from West Hollywood, California.
During the inspection, the contract engineer was able to reduce the
transmitter power to approximately 25 watts both manually and by using
the remote control. He stated that remote control instructions were
left at the Econo Lodge prior to the sale of hotel. According to the
new owner of the Econo Lodge, current Econo Lodge employees did not
have any knowledge of the radio station operation or of any station
records. The contract engineer stated he is called by the station only
as needed. He stated he had no knowledge of radio station staff
locally and stated no chief operator was designated for the station. A
check of the telephone for the station located at the Econo Lodge
front desk found the telephone unplugged but operating correctly when
5. On March 3, 2006, the Kansas City Office issued to 127, Inc. a Notice
of Apparent Liability for Forfeiture ("NAL") proposing a forfeiture in
the amount of $21,000 that found 127, Inc. had willfully and
repeatedly violated Sections 73.1125(a) and 73.1745 of the Rules, and
had willfully violated Section 73.3526(a) of the Rules. In response to
the NAL, 127, Inc. did not deny the violations, stated that it had
made efforts to correct the violations, and requested cancellation or
reduction of the proposed forfeiture due to its "spotless track
record" and "many years of untarnished service." On September 6, 2006,
the Enforcement Bureau released the Forfeiture Order. The Enforcement
Bureau reduced the forfeiture amount from $21,000 to $16,800, based on
127, Inc.'s history of compliance with the Rules. 127, Inc. filed a
petition for reconsideration of the Forfeiture Order requesting
further reduction or cancellation of the forfeiture.
6. The forfeiture amount 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 examining
127, Inc.'s petition, Section 503(b) 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 any
other such matters as justice may require.
7. In its petition for reconsideration, 127, Inc. alleges that it did not
violate Section 73.3526 of the Rules, because the station's public
file was located at the Econo Lodge. In a sworn affidavit, the station
owner states that the new owner of the Econo Lodge was aware that the
file was located in the hotel and agreed to make it available to the
public. 127, Inc. claims that its violation of the public file rules
was not willful, because, unbeknownst to it, the new owner of the
Econo Lodge failed to inform his employees about the public file.
These facts, however, provide no basis to cancel or reduce the
forfeiture associated with this violation. It is undisputed that on
December 15, 2005 in response to a request during normal business
hours, station KLFJ, represented by the owner and employees of the
Econo Lodge, was unable to produce a public file. Although 127, Inc.
may not have been aware of the break down in training for the Econo
Lodge employees, 127, Inc. consciously and deliberately placed the
Econo Lodge owner in charge of the station's public file and Econo
Lodge employees were unable to make the file available upon request.
The "Commission has long held that licensees and other Commission
regulatees are responsible for the acts and omissions of their
employees and independent contractors," and the Commission has
"consistently refused to excuse licensees from forfeiture penalties
where actions of employees or independent contractors have resulted in
8. Similarly, 127, Inc. alleges its violations of Sections 73.1125(a) and
73.1745 of the Rules were not willful, because the station owner
relied on contractors and employees to set up the main studio and
operate the station consistent with the Rules. Specifically, the
station owner hired a contractor to assist in the station purchase and
set up. That contractor later hired a contract engineer and station
manager. In an affidavit, the contractor stated the station's main
studio was complete and working when it first moved to the Econo
Lodge. At some point before the inspection, however, he alleges much
of the station's equipment was removed from the Econo Lodge,
unbeknownst to himself and the station owner. The contractor also
states that the contract engineer was instructed to reduce the
station's transmitter power at night and failed to do so, unbeknownst
to himself and the station owner. These facts, however, provide no
basis to cancel or reduce the forfeitures associated with these
violations. 127, Inc., as the licensee, is responsible for ensuring
compliance with the Rules, and consciously hired others to set up and
operate its radio station. As discussed above, 127, Inc. cannot
absolve itself of liability by claiming it was unaware of the actions
and inactions of those employees and contractors.
9. 127, Inc. agrees that its violations of Sections 73.1125(a) and
73.1745 of the Rules were repeated, but seeks a reduction of the
forfeitures, citing U.S. v. Daniels, because it claims its violations
were not willful, it was acting in good faith, and there were no
complaints received about the station. As discussed above, we agree
with the determination in the Forfeiture Order that these violations
were willful. We also find no reason to reduce the forfeiture simply
because no complaints against the station have been filed. We note,
however, that the agent from Kansas City first monitored the station
in response to a report of a violation by the station, which was
essentially a complaint. Finally, we find that 127, Inc.'s actions -
hiring a contractor to set up the main studio and a station engineer
to reduce power at night and purchasing main studio equipment - do not
constitute good faith efforts worthy of a forfeiture reduction. While
these actions were taken prior to the inspection, they were not
specifically taken to remedy a violation. Rather, they were
prerequisites to operating the station consistent with the Rules and
were taken prior to the occurrence of any violations.
10. Finally, 127, Inc. notes that following the release of the Forfeiture
Order it moved the main studio to another location and hired a
station manager. 127, Inc. also terminated its relationship with the
contract engineer. However, corrective action taken to come into
compliance with the Rules is expected, and does not nullify or
mitigate any prior forfeitures or violations.
11. We conclude there is no basis for reversal of the ultimate finding in
the Forfeiture Order that 127, Inc. willfully and repeatedly failed to
maintain a main studio and operated overpower at night in violation of
Sections 73.1125(a) and 73.1745 of the Rules and willfully failed to
make available a public inspection file in violation of Section
73.3526(a) of the Rules.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, 127, Inc.'s petition for reconsideration of the
September 6, 2006 Forfeiture Order IS hereby DENIED.
13. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, 127, Inc. IS LIABLE
FOR A MONETARY FORFEITURE in the amount of sixteen thousand eight
hundred dollars ($16,800) for violation of Sections 73.1125(a),
73.1745, and 73.3526(a) of the Rules.
14. Payment of the $16,800 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. Requests for full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
15. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to 127, Inc. at its
address of record and its counsel, David S. Akers, 430C State Highway
165 South Branson, MO 65616.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
127, Inc., Forfeiture Order, 21 FCC Rcd 10003 (Enf. Bur. South Central
Region September 6, 2006) ("Forfeiture Order").
47 C.F.R. SS 73.1125(a),73.1745, 73.3526(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632560002
(Enf. Bur., South Central Region, Kansas City Office, released March 3,
127, Inc. states that it let its contractor respond on its behalf, because
he stated the station was in compliance and that he would handle it. 127,
Inc. raises the issues it claims it would have raised in response to the
NAL in its petition for reconsideration.
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).
47 U.S.C. S 503(b)(2)(D).
We note that the new owner of the Econo Lodge was present during the
inspection and stated he had no knowledge of the public file.
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863,-64, para. 7 (2002); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34 (1991) (holding that a company's reliance on an independent
contractor to construct a tower in compliance of FCC rules does not excuse
that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
for violations of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248 (Enf. Bur. 2004)
(holding a licensee liable for its employee's failure to conduct weekly
EAS tests and to maintain the "issues/programs" list).
American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf. Div.,
Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, 96 FCC 2d
1235, 1244 (1984).
It is unclear from the contractor's affidavit whether he hired the station
manager before or after the inspection. During the inspection, neither the
contract engineer nor the Econo Lodge owner were aware of any employees,
such as a station manager, employed by the station.
Although we conclude that 127, Inc.'s violation was willful, we do not
conclude that it intended to violate the Rules. Section 312(f)(1) of the
Act, 47 U.S.C. S 312(f)(1), which applies to violations for which
forfeitures are assessed under Section 503(b) of the Act, provides that
"[t]he term `willful,' ... means the conscious and 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
authorized by this Act ...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
United States v. Daniels, 418 F. Supp 1074 (1976).
We note that in the Daniels case, the Commission did not allege a willful
violation. The Court found that the Defendant lacked actual knowledge of
the violated Rule, which had recently been amended. While actual knowledge
was irrelevant to the question of whether there was a repeated violation,
the Court found a reduction in the forfeiture appropriate, because: the
Defendant was unaware of the amended Rule; the violations ceased
immediately upon being informed of the violation; the violations were
inadvertent; the Defendant was merely following in good faith the
broadcasting hours set out in his license; and there was no record of any
complaints of interference filed. In this case, 127, Inc. willfully and
repeatedly violated well established Rules that were in fact known to the
contractor hired to set up the main studio.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 73.1125(a), 73.1745, 73.3526(a).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-811
Federal Communications Commission DA 07-811