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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Donald D. Coss ) File Number: EB-10-PO-0031
Licensee of Station KCKX(AM) ) NAL/Acct. No.: 201132920001
Stayton, Oregon ) FRN: 0007803869
Facility ID # 65569 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 1, 2010 Released: December 3, 2010
By the Resident Agent, Portland Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Donald D. Coss ("Coss"), licensee of station KCKX(AM), in
Stayton, Oregon, apparently willfully and repeatedly violated Section
73.1745(a) of the Commission's Rules ("Rules") by failing to operate
in accordance with the authorized nighttime power specified on the
station's license. We conclude that Coss is apparently liable for a
forfeiture in the amount of six thousand dollars ($6,000).
2. On April 22, 2010, in response to a complaint that Station KCKX(AM)
was not lowering power at night, an agent from the Enforcement
Bureau's Portland Office monitored the Station KCKX(AM) signal from a
location approximately one kilometer from the station's antenna prior
to the local sunset of 8:00 p.m. The agent then conducted field
strength measurements which resulted in a value of approximately 115
mV/m. After local sunset, the Portland agent again conducted field
strength measurements from the same location, which produced the same
value of approximately 115 mV/m.
3. On April 23, 2010, the Portland agent returned to Stayton and
monitored Station KCKX(AM). Using the same procedures as on April 22,
2010, the agent measured the field strength of Station KCKX(AM) at 115
mV/m prior to the local sunset time and at 115 mV/m after the local
sunset time. Therefore, the agent determined that Station KCKX(AM) did
not reduce power appropriately for nighttime operation.
4. In addition, on April 26, 2010, the Portland agent inspected Station
KCKX(AM) at its control point located in Woodburn, Oregon. Station
KCKX(AM) is authorized to operate with a non-directional pattern on
1460 kHz with 1000 watts during daytime hours and 15 watts during
nighttime hours. The Portland agent requested a demonstration of a
reduction of the authorized operating daytime power of 1000 watts to
the authorized nighttime power of 15 watts. A technical representative
from Station KCKX(AM), after consulting with a contract engineer by
telephone, attempted to dial out preprogrammed codes to the
transmitter site to demonstrate the power reduction. The technical
representative was not able to reduce the nighttime power to 15 watts
for nighttime operation. During an interview with the Portland agent,
the owner of Station KCKX(AM) stated that he was aware of the
requirement to reduce the operating power to the authorized power
levels for nighttime operation but stated that it was too expensive
to maintain the calibrated time-keeping devices, power switching
devices, and other equipment necessary to effect the timely change in
5. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. The term
"willful" as used in Section 503(b) has been interpreted to mean
simply that the acts or omissions are committed knowingly. The term
"repeated" means the commission or omission of such act more than once
or for more than one day.
6. 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 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. The Rules define
daytime as the "period of time between local sunrise and local sunset"
and nighttime as the "period between local sunset and local sunrise."
In Stayton, Oregon, during the month of April, local sunrise occurs at
6:30 a.m., and local sunset occurs at 8:00 p.m. Therefore, during the
month of April, Station KCKX(AM) is authorized to operate at 1000
watts during the daytime, i.e. between 6:30 a.m. and 8:00 p.m., and at
15 watts during the nighttime, i.e. between 8:00 p.m. and 6:30 a.m..
7. On April 22 and April 23, 2010, the Portland agent determined that
Station KCKX(AM) was not reducing its operating power after 8:00 p.m.,
as required by its authorization. Therefore, the violation was
willful. The violation also occurred on more than one day, and was
therefore repeated. Based on the evidence before us, we find that Coss
apparently willfully and repeatedly violated Section 73.1745(a) of the
Rules by failing to operate Station KCKX(AM) in accordance with the
station's authorized power as specified on its license.
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for exceeding power
limits is $4,000 per violation. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, 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. Here, Coss admitted to the Portland agent that he was aware
of the requirement to operate Station KCKX(AM) at the power levels
authorized on its license. Moreover, the Portland agent had previously
issued a Notice of Violation to Coss for the same violation in
November 2000. Given Coss' history of noncompliance with the Rules,
and Section 73.1745(a) specifically, we believe an upward adjustment
of the base forfeiture is appropriate. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Coss is apparently liable for a forfeiture in
the amount of $6,000. We direct Coss to submit a sworn statement
within thirty days of release of this NAL describing the specific
action(s) taken to correct the cited violation and to preclude
recurrence, and specifying when the corrective action(s) were taken.
We caution Coss that future violations of our rules may subject him to
more severe enforcement penalties.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Donald D. Coss is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
six thousand dollars ($6,000) for apparently willfully and repeatedly
violating Section 73.1745(a) of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Donald D. Coss SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
11. IT IS FURTHER ORDERED that, Donald D. Coss SHALL SUBMIT a sworn
statement, as described in paragraph 8, within thirty days of the
release date of this NAL. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Portland Resident Agent Office, P.O. Box 61469, Vancouver, Washington,
12. Payment of the forfeiture must be made by credit card, 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. Donald D. Coss shall also
send electronic notification on the date said payment is made to
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
Western Region, Portland Resident Agent Office, P.O. Box 61469,
Vancouver, Washington, 98666-1469 and must include the NAL/Acct. No.
referenced in the caption. An electronic copy shall be sent to
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Donald D. Coss at his address of
FEDERAL COMMUNICATIONS COMMISSION
47 C.F.R. S: 73.1745(a).
The agent also captured Station KCKX(AM)'s relative signal strengths for
its daytime and nighttime operations and determined that there was no
reduction in signal strength for the nighttime operation.
The Portland agent also captured the relative signal strengths on the
mobile directing finding vehicle's display to compare the signal strengths
before and after the local sunset time.
See File No. BL-19870615AI, granted August 11, 1987.
47 U.S.C. S: 503(b).
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', 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...." See, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
FCC Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S: 73.1745(a).
47 C.F.R. S: 73.14.
We note that the Enforcement Bureau has previously issued a Notice of
Violation to Coss for failing to reduce the nighttime power of Station
KCKX(AM), in violation of 47 C.F.R. S: 73.1745(a). See Notice of
Violation, File No. EB-00-PO-220 (Enf. Bur., Western Region, Portland
Office, rel. November 30, 2000).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S:1.80.
47 U.S.C. S: 503(b)(2)(E).
See Citicasters Licenses, L.P., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 1633 (Enf. Bur. Investigations & Hearings Div.
2007) (upwardly adjusting a proposed forfeiture amount when a licensee has
a history of similar violations over a seven-year period); see also WXDJ
Licensing, Forfeiture Order, 25 FCC Rcd 3911 (Enf. Bur. Investigations &
Hearings Div. 2010).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1745(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 10-2276
Federal Communications Commission DA 10-2276