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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Boulder Community Broadcast
Association, Inc. ) File Number: EB-07-DV-193
Licensee of KGNU ) NAL/Acct. No.: 200832800002
Denver, Colorado ) FRN: 0006024319
Facility ID# 31349 )
Adopted: May 27, 2008 Released: May 29, 2008
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of three thousand, two hundred dollars ($3,200) to Boulder
Community Broadcast Association, Inc. ("BCBA"), licensee of KGNU(AM)
in Boulder, Colorado, for willful and repeated violation of Section
73.1745(a) of the Commission's Rules ("Rules"). On December 21, 2007,
the Enforcement Bureau's Denver Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") to BCBA in the amount of $4,000 for
failing to operate KGNU(AM) in accordance with the station's
authorized power as specified on the station's license. In this Order,
we consider BCBA's arguments that it did not willfully violate Section
73.1745(a) of the Rules, that it took steps to remedy the violation as
soon as it was notified of it, that it lacks the ability to pay the
forfeiture, and that it has a history of compliance with the
2. KGNU(AM) is authorized to operate with a non-directional pattern on
1390 kHz with 5000 watts during daytime hours and 139 watts during
nighttime hours. Daytime is defined as the "period of time between
local sunrise and local sunset" and nighttime is defined as the period
"between local sunset and local sunrise." In Denver, Colorado, during
the month of April, local sunrise occurs at 6:30 a.m., and local
sunset occurs at 7:45 p.m.
3. On April 26, 2007, in response to a complaint, an agent from the
Enforcement Bureau's Denver Office monitored KGNU(AM) through the
post-sunset nighttime hours with a spectrum analyzer, and determined
that KGNU(AM) failed to reduce its power to its licensed nighttime
power level of 139 watts. The agent continued monitoring the station
on April 27, 28 and 29, 2007, throughout the post-sunset nighttime
hours and determined that on each night, KGNU(AM) failed to reduce its
power to its licensed nighttime power of 139 watts.
4. On April 30, 2007, a Denver agent contacted KGNU about the over-power
operation. KGNU(AM)'s engineer indicated to the agent that a March 16,
2007, software update had corrupted the remote control input and
output systems. According to the KGNU(AM) engineer, this meant that
the system was unable to switch the transmitter to low power at sunset
or switch to full power at sunrise. It also meant that the system was
no longer able to dial out to the preprogrammed BCBA numbers to inform
station personnel that the transmitter had failed to reduce power at
5. On May 4, 2007, a Denver agent contacted KGNU(AM), requesting to
review the station's logs covering April 1 through May 3, 2007. On May
9, 2007, a representative of KGNU(AM) provided the Denver Office with
a letter acknowledging the remote control failure and the immediate
actions undertaken by KGNU(AM) to fully restore the remote control
system, including manually ensuring the power was reduced at the
station at sunset. Also, KGNU(AM) provided copies of remote control
telemetry readings for the period January 18, 2007, to April 24, 2007,
that confirmed KGNU(AM)'s remote control problems.
6. On December 7, 2007, Denver agents inspected KGNU(AM)'s operations at
the transmitter site and viewed additional remote control telemetry
readings on the station's remote control unit that showed KGNU(AM)
operated with daytime power levels of 5000 watts 24 hours a day for
the period from March 17, 2007, to April 30, 2007. The station's
remote control readings directly corresponded to the Denver agent's
observations from April 26, 2007, through April 29, 2007, of KGNU(AM)
operating at power levels exceeding its authorized nighttime power
during nighttime hours.
7. On December 21, 2007, the Denver Office issued a NAL in the amount of
$4,000 to BCBA. In the NAL, the Denver Office found that the BCBA
apparently willfully and repeatedly violated Section 73.1745(a) of the
Rules, by failing to operate KGNU(AM) in accordance with the station's
authorized power as specified on the station's license. BCBA filed a
response ("Response") to the NAL on January 8, 2008. In its Response,
BCBA argues it did not willfully violate Section 73.1745(a) of the
Rules, that it took steps to remedy the violation as soon as it was
notified of it, that it lacks the ability to pay the forfeiture, and
that it has a history of compliance with the Commission's Rules.
8. The proposed 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
the Response, 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 other
such matters as justice may require.
9. The Rules state that each licensee is responsible for maintaining and
operating its broadcast station in a manner which complies with the
technical rules and in accordance with the terms of the station
license. Specifically, Section 73.1745(a) of the Commission's Rules
states that no broadcast station shall operate at times or with modes
or power, other than those specified and made part of the license.
During the month of April 2007, KGNU(AM) was authorized to operate at
5000 watts between 6:30 a.m., and 7:45 p.m. After 7:45 p.m., and
before 6:30 a.m., KGNU(AM) was authorized to operate at 139 watts.
Between April 26, 2007, and April 29, 2007, monitoring by a Denver
agent revealed that KGNU(AM) was not reducing its operating power
after 7:45 p.m., as required by its authorization. Further
investigation by Denver agents revealed that telemetry readings made
by KGNU(AM) showed that KGNU(AM) was operating at 5000 watts 24 hours
a day, from March 17, 2007, to April 30, 2007, confirming the Denver
agent's observations between April 26, 2007, and April 29, 2007.
10. In its Response, BCBA does not dispute the facts, as stated by the
Denver Office, but argues that the violation was not willful pursuant
to Section 312(f)(1) of the Act. Specifically, BCBA states that it did
not "knowingly" violate Section 73.1745(a) because the software that
it installed in its remote control system "corrupted" the system, and,
consequently, the remote control system failed to change the KGNU(AM)
transmitter to lower power and failed to advise station personnel of
the failure to reduce power at sunset. Therefore, BCBA asserts that it
was not aware of the violation. We find no merit to this argument. A
licensee is required to operate consistent with its authorization, and
BCBA, at all times, had exclusive control of the KGNU(AM) transmitter.
As detailed above, and in the NAL, BCBA produced telemetry data from
March 17, 2007 to April 30, 2007 which showed that its transmitter was
operating at variance with its licensed parameters for six weeks.
Given that BCBA was aware of the power limits on its authorization,
and had data within its control that showed that for six weeks it was
operating the KGNU(AM) transmitter at a power above its licensed
power, but failed to correct the violation until notified by a Denver
agent, we find that BCBA's violation was willful.
11. BCBA also argues that its violations were inadvertent and that it took
steps to remedy the violations as soon as it was notified by the
Denver agent. BCBA's efforts to resolve the over-power operation
subsequent to the Denver agent's inspection do not justify a downward
adjustment. The Commission has determined that it expects the entities
it regulates to correct errors when they are brought to the regulated
12. BCBA also argues that it is a nonprofit organization that operates
KGNU(AM) on a noncommercial basis, and that its ability to pay a
forfeiture is less than its commercial counterparts. BCBA, however,
submits no data to substantiate its claim. We note that in the NAL,
the Denver Office instructed BCBA, if it sought cancellation or
reduction of the forfeiture based on an inability to pay, to supply:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted accounting
practices ("GAAP"); or (3) some other reliable and objective documentation
that accurately reflects the petitioner's current financial status. Any
claim of inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted.
Because BCBA has provided no documentation, it has not provided us with a
sufficient basis to support cancellation or reduction of the forfeiture
based on its inability to pay.
13. Finally BCBA contends that it has a history of overall compliance with
the Commission's Rules. We have reviewed our records and we concur.
Consequently, we reduce BCBA's forfeiture amount to $3,200.
14. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that BCBA willfully
and repeatedly violated Section 73.1745(a) of the Rules. Considering
the entire record and the factors listed above, we find that reduction
of the proposed forfeiture to $3,200 is warranted.
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Boulder Community
Broadcast Association, Inc., IS LIABLE FOR A MONETARY FORFEITURE in
the amount of $3,200 for willfully and repeatedly violating Section
73.1745(a) of the Rules.
16. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Boulder Community Broadcast Association, Inc., shall also send
electronic notification on the date said payment is made to
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Boulder
Community Broadcast Association, Inc., at its address of record, and
John Crigler, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 C.F.R. S: 73.1745(a).
47 C.F.R. S: 73.14.
All times indicated are local Mountain Daylight Savings Time.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832800002
(Enf. Bur., Western Region, Denver Office, released December 21, 2007).
47 C.F.R.. S: 73.1745(a).
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)(E).
47 C.F.R. S: 73.1745(a).
Section312(f)(1) states that "[t]he term 'willful', when used with
reference to the commission or omission of any act, 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...." 47 U.S.C. S: 312(f)(1). BCBA
does not dispute that the violations were repeated. See Section 503(b)(1)
of the Act, 47 U.S.C. S: 503(b)(1) (violator liable for forfeiture if
violation is willful or repeated).
BCBA argues its situation is analogous to that in Vernon Broadcasting,
Inc., 60 Rad. Reg 2d (Pike and Fischer) 1275 (1986) ("Vernon
Broadcasting"), in which the Commission cancelled a $1,000 forfeiture
against Vernon Broadcasting, Inc. ("Vernon") licensee of WYGO(AM), Corbin,
Kentucky, for maintaining an inadequate fencing around the WYGO(AM) tower
because "the evidence indicate[d] that the fence had been vandalized just
prior to [the field office's] inspection [and that there was] no
indication that the licensee was aware of the broken fence before the
[field office's] inspection or that it failed to monitor the condition of
the antenna site." Vernon Broadcasting, Inc. at para 3. In High Country
Communications, Inc. 2 FCC Rcd 7427 (1987), the Commission distinguished
its decision in Vernon Broadcasting finding that High Country
Communications, licensee of KVLE(FM), Gunnison, Colorado, willfully
violated Section 73.317(a)(8) of the Rules, by causing spurious emissions,
because, among other reasons, "[w]hile the fence in Vernon was, by its
very nature and location, subject to influences outside the immediate
knowledge and control of the licensee, KLVE(FM)'s transmitter was, at all
relevant times, under the exclusive domain of High Country [and any]
spurious emissions produced by the KLVE(FM) transmitter [were]
attributable directly and solely to High Country." 2 FCC Rcd at 7428.
Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).
See AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
NAL at para 15.
See Webnet Communications, Inc., 18 FCC Rcd 6870, 6878 (2003).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.1745(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1209
Federal Communications Commission DA 08-1209