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                                   Before the

                       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  
     Springfield, Missouri                                      

                          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
       plugged in.

    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.


   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.


   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