Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Cochise Broadcasting LLC Licensee of AM Station KOMJ
Omaha, NE ) ) ) ) ) ) ) File No.: EB-FIELDSCR-13-00010408 NAL/Acct. No.:
201432560004 FRN: 0005641998 Facility ID No.: 74104
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: February 20, 2014 Released: February 20, 2014
By the District Director Kansas City Office, South Central Region,
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Cochise Broadcasting LLC (Cochise), licensee of AM
Station KOMJ, in Omaha, Nebraska (the Station), apparently willfully
and repeatedly violated Sections 73.1125(a) and 73.3526(c) of the
Commission's rules (Rules),^ by failing to maintain and staff a main
studio, and make available the Station's public inspection file. We
conclude that Cochise is apparently liable for a forfeiture in the
amount of seventeen thousand dollars ($17,000). In addition, we
direct Cochise to submit, no later than thirty (30) calendar days from
the date of this NAL, a statement, signed under penalty of perjury,
that it has established a fully-staffed main studio for the Station
and that its public inspection file is available at that location.
2. On August 1, 2013, an agent with the Enforcement Bureau's Kansas City
Office (Kansas City Office) attempted to inspect the Station, but was
unable to locate the address of the main studio. The agent was also
unable to contact anyone responsible for the Station. The agent called
the local telephone number, 402-553-1490, listed on the Station's
website, however, calls to that number were transferred to Arizona and
were answered by voice mail. The agent left a message, but did not
receive a return call. The agent was unable to find any other local
telephone number for the Station. The agent also left a message on the
voicemail for one of Cochise's owners, who is located in Wyoming, but
did not receive a return call.
3. On August 5, 2013, an agent with the Kansas City Office telephoned
Cochise's attorney, who stated the Station's main studio was located
at the Journal Broadcast Group's (Journal) main studio for Station
KMTV-TV at 10714 Mockingbird Drive, Omaha, Nebraska (Mockingbird
Drive).^ That same day, the agent called the Journal's main studio at
Mockingbird Drive, but was told by a receptionist that Station KOMJ
was not located at Mockingbird Drive and did not have a public
inspection file on the premises. On August 6, 2013, the station
manager for Station KMTV-TV stated that the Station might have some
files at its main studio, but that he would have to research the
4. On August 14, 2013, the Kansas City Office issued a Notice of
Violation to Cochise for failing to maintain a main studio and public
inspection file.^ On September 13, 2013, Cochise responded that the
Station's telephone is answered in Arizona, where the Station's
programming is produced.^ Cochise stated that because the agent did
not identify himself as a Commission representative, the staff treated
his call as a "listener call without any special urgency."^ Cochise
reiterated that its main studio and public inspection file are located
at Mockingbird Drive.^
5. On September 17, 2013, the Kansas City Office issued Letters of
Inquiry (LOI) to Cochise and Journal regarding the Station's main
studio and public inspection file.^ On October 21, 2013, Cochise
affirmed that the Station's main studio was located at Mockingbird
Drive.^ Cochise stated that per an agreement effective March 27, 2007,
between Omaha Dirt & Wire LLC, a company co-owned with Cochise, and
Journal (March 27, 2007 Agreement), it rented "studio space, office
space and reception service for KOMJ."^ Cochise claimed the rental
agreement was in place on August 1, 2013 and provided a check recently
cashed by Journal, but stated it may look for a new main studio
location.^ Cochise stated that through the agreement it had "available
to it any studio space necessary or desirable for the necessary
functions of a main studio, including the use of any of Journal's
production equipment."^ Cochise, however, did not identify any Cochise
equipment located at Mockingbird Drive or any Cochise employees or
managers working at Mockingbird Drive. Finally, Cochise stated its
public inspection file is located at Mockingbird Drive and that it has
so instructed Journal's receptionist.^
6. On November 5, 2013, Journal submitted its response to the LOI.^
Journal stated that the March 27, 2007 Agreement related to facilities
located at 5030 North 72^nd Street, Omaha, Nebraska and expired no
later than March 26, 2008,^ and that the parties did not enter into
any written extension or modification of the agreement.^ Journal
stated, however, that Cochise has continued to pay Journal a monthly
fee to locate files at Mockingbird Drive.^ "Other than the certain
files referenced above, Cochise did not have any equipment or
specifically designated space at the Mockingbird Drive Location."^
Moreover, Journal "neither provides nor shares any EAS or other
technical equipment with Cochise."^ "Journal agreed to provide
reception service at the front desk of Journal's [Mockingbird Drive]
facilities in this Agreement. However, Journal does not provide and
has never provided any staff or manager to Cochise and no Journal
staff or managers are subject to any direction or control by
Cochise."^ Finally, Journal stated that its receptionist does not
recall speaking to anyone about the Station on August 5, 2013, but
that any number of other Journal employees and interns may have
relieved her during a break.^
7. 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.^ Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law.^ The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act,^ and the Commission has so
interpreted the term in the Section 503(b) context.^ The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful.^ The term "repeated" means the commission or
omission of such act more than once or for more than one day.^
A. Failure to Maintain and/or Staff a Main Studio
8. Section 73.1125(a) of the Rules requires broadcast stations to
maintain a main studio.^ The Commission has interpreted Section
73.1125 (also known as the Main Studio Rule) to require the station to
"equip the main studio with production and transmission facilities
that meet applicable standards, maintain continuous program
transmission capability, and maintain a meaningful management and
staff presence."^ Specifically, the Commission has found that a main
studio "must, at a minimum, maintain full-time managerial and
full-time staff personnel."^
9. The evidence in this case is sufficient to establish that Cochise
apparently violated Section 73.1125(a) of the Rules.^ Cochise asserts
that, pursuant to an agreement with Journal, the Station's main studio
is located at Mockingbird Drive. Journal, however, states that it only
has an agreement with Cochise to provide receptionist services and
house certain Station files at Mockingbird Drive. Journal states that
no Cochise equipment or employees are located at Mockingbird Drive and
that Journal does not share any equipment or employees with Cochise.
Ignoring the discrepancy over whether a main studio rental agreement
is in place, on August 5, 2013, no one at Mockingbird Drive was aware
of any Station presence at Mockingbird Drive. Moreover, Cochise has
been unable to identify any Station equipment or staff located at
Mockingbird Drive, other than the purported public inspection file. In
addition, Cochise's local telephone number is forwarded to Arizona, so
its only local presence in Omaha, Nebraska is the Journal receptionist
at Mockingbird Drive. Cochise has not asserted that it maintains any
full-time staff or managerial presence at Mockingbird Drive or any
other location in Omaha. Accordingly, based on the evidence before us,
we find that Cochise apparently willfully and repeatedly violated
Section 73.1125(a) of the Rules by failing to maintain and/or fully
staff a main studio for Station KOMJ.
A. Failure to Make Available a Public Inspection File
10. Section 73.3526(a)(2) of the Rules states that "[e]very permittee or
licensee of an AM, FM, TV or a Class A station in the commercial
broadcast services shall maintain a public inspection file containing
the material" set forth in that section.^ The public inspection file
must be maintained at the main studio of the station,^ and must be
available for public inspection at any time during regular business
hours.^ On August 1, 2013, an agent from the Kansas City Office
attempted to inspect the Station's public inspection file but was
unable to contact anyone from the Station to determine the location of
the public inspection file. The agent called the local telephone
number, which is answered by voicemail, but the call was not returned,
because the agent was misidentified as a regular "listener."^ Even if
the call had been returned, public inspection files must be available
at any time during regular business hours, and stations may not
require that a member of the public make an appointment in advance or
return at another time to inspect the public inspection file.^
Requiring members of the public to call a telephone number and wait
several hours or days for a return call with instructions on where to
request the public inspection file does not constitute making the file
available during regular business hours. Moreover, on August 5, 2013,
when the agent from the Kansas City Office contacted the appropriate
receptionist during regular business hours to inspect the Station's
public inspection file, the receptionist was unaware of the file's
location. Based on the evidence before us, we find that Cochise
apparently willfully and repeatedly violated Section 73.3526(c) of the
Rules by failing to make available the Station's public inspection
A. Proposed Forfeiture and Reporting Requirement
11. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for violation of the
main studio rule is $7,000 and for violation of public file rules is
$10,000.^ 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.^
Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that
Cochise is apparently liable for a total forfeiture in the amount of
12. We further order Cochise to submit a written statement, pursuant to
Section 1.16 of the Rules,^ signed under penalty of perjury by an
officer or director of Cochise, stating that it has established a
fully staffed main studio for the Station. Cochise must provide the
address and phone number for the main studio, and a description of the
staffing and equipment installed at the main studio. Cochise must also
certify that its public inspection file is located at the main studio
and that it is available to the public during regular business hours.
This statement must be provided to the Kansas City Office at the
address listed in paragraph 15 within thirty (30) calendar days of the
release date of this NAL.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Cochise Broadcasting
LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of seventeen thousand dollars ($17,000) for violations of
Sections 73.1125(a) and 73.3526(c) of the Rules.^
14. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Cochise Broadcasting LLC SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
15. IT IS FURTHER ORDERED that Cochise Broadcasting LLC SHALL SUBMIT a
written statement, as described in paragraph 12, within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central Region,
Kansas City Office, 520 NE Colbern Rd., 2nd Floor, Lees Summit, MO
64086. Cochise shall also e-mail the written statement to
16. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account Number
and FRN referenced above. Cochise shall also send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted.^ When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID)
and enter the letters "FORF" in block number 24A (payment type
code). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
17. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554.^ If you have questions
regarding payment procedures, please contact the Financial Operations
Group Help Desk by phone, 1-877-480-3201, or by e-mail,
18. 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 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Kansas City Office, 520 NE Colbern Rd., 2nd Floor,
Lees Summit, MO 64086, and include the NAL/Acct. No. referenced in the
caption. Cochise Broadcasting LLC also shall e-mail the written
response to SCR-Response@fcc.gov.
19. 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 principles (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
20. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and first class mail to Cochise Broadcasting LLC at
their address of record and to their counsel, Susan A. Marshall,
Fletcher, Heald and Hildreth, at 1300 North 17^th Street, 11^th Floor,
Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Ronald D. Ramage
Kansas City Office
South Central Region
^ 47 C.F.R. SS 73.1125(a), 73.3526(c).
^ On August 6, 2013, Cochise's attorney confirmed that 402-553-1490 was
Station KOMJ's telephone number and also confirmed Cochise's owner's
^ Cochise Broadcasting LLC, Notice of Violation, NOV No. V201332560032
(Aug. 14, 2013) (on file in EB-FIELDSCR-13-00010408).
^ Letter from Susan A. Marshall, Counsel for Cochise Media Licenses LLC,
to Ronald D. Ramage, District Director, Kansas City Office, South Central
Region, Enforcement Bureau at 2 (Sept. 13, 2013) (NOV Response) (on file
^ Letter from Ronald D. Ramage, District Director, Kansas City Office,
South Central Region, Enforcement Bureau, to Susan A. Marshall, Counsel
for Cochise Media Licenses, LLC (Sept. 17, 2013) (on file in
EB-FIELDSCR-13-00010408); Letter from Ronald D. Ramage, District Director,
Kansas City Office, South Central Region, Enforcement Bureau, to Journal
Communications Inc. (Sept. 17, 2013) (on file in EB-FIELDSCR-13-00010408).
^ Letter from Susan A. Marshall, Counsel for Cochise Media Licenses LLC,
to Ronald D. Ramage, District Director, Kansas City Office, South Central
Region, Enforcement Bureau at 4 (Oct. 21, 2013) (LOI Response) (on file in
^ Id. at 5.
^ Journal did not submit a timely response to the LOI issued September 17,
2013. The Kansas City Office again requested a response to the LOI on
October 23, 2013. Letter from Ronald D. Ramage, District Director, Kansas
City Office, South Central Region, Enforcement Bureau, to Journal
Communications, Inc. (Oct. 23, 2013). Letter from John W. Bagwell, Counsel
for Journal Communications Inc., to Ronald D. Ramage, District Director,
Kansas City Office, South Central Region, Enforcement Bureau (Nov. 5,
2013) (Journal LOI Response).
^ The copies of the March 27, 2007 agreement provided by Cochise and
Journal stated that the initial term expired September 26, 2007 and only
explicitly referenced 5030 North 72^nd Street, Omaha, Nebraska.
^ Journal LOI Response at 2.
^ Id. at 3.
^ Id. at 2-3.
^ Id. at 3.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
^ See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
^ 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." See Callais Cablevision, Inc., 16 FCC Rcd at
^ 47 C.F.R. S 73.1125.
^ Amendment of Sections 73.1125 and 73.1130 of the Commission's Rules, the
Main Studio and Program Origination Rules for Radio and Television
Broadcast Stations, Memorandum Opinion and Order, 3 FCC Rcd 5024, 5026
(1988) (Main Studio and Program Origination Rules), erratum issued, 3 FCC
Rcd 5717 (1988) (correcting language in n.29).
^ See Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and
Order, 6 FCC Rcd 3615, 3616 & n.2 (1991) (noting that, "This is not to
say that the same staff person and manager must be assigned full-time to
the main studio. Rather, there must be management and staff presence on a
full-time basis during normal business hours to be considered
`meaningful.'"), clarified, 7 FCC Rcd 6800 (1992) (Jones Eastern II). See
also Birach Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 2635 (Enf. Bur. 2010).
^ 47 C.F.R. S 73.1125(a).
^ 47 C.F.R. S 73.3526(a)(2).
^ 47 C.F.R. S 73.3526(b).
^ 47 C.F.R. S 73.3526(c).
^ See supra para. 4.
^ See CSSI Non-Profit Educational Broadcasting Corporation, Notice of
Apparent Liability for Forfeiture, 28 FCC Rcd 3087 (Enf. Bur. 2013)
(licensee apparently violated Section 73.3527 by not providing immediate
access to a public inspection file upon initial request). See
also Availability of Locally Maintained Records for Inspection by Members
of the Public, Public Notice, 13 FCC Rcd 17959 (1998).
^ 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), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 C.F.R. S 1.16.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
(...continued from previous page)
Federal Communications Commission DA 14-207
Federal Communications Commission DA 14-207