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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Bronco Broadcasting Co., Inc. )
Station KIRL (AM) ) File No. EB-00-KC-
111
St. Charles, Missouri ) NAL/Acct.No. X3256-
001
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August
31, 2000
By the Enforcement Bureau, Kansas City Field Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that Bronco Broadcasting, Co., Inc. (``Bronco''), licensee
of station KIRL (AM), St. Charles, Missouri, has apparently
violated sections 11.35(a), 73.61(a), 73.62(b)(3) and
73.3526(e)(12) of the Commission's Rules (``Rules'') for failure
to make appropriate entries in the broadcast station log
indicating the reasons why tests of the Emergency Alert System
(EAS) were not received, for failure to make field intensity
measurements at each designated monitoring point location on the
KIRL nighttime directional array as often as necessary to
maintain compliance with the station authorization, for failure
to lower power or terminate operation when the field intensity
did exceed the maximum authorized field intensity at several
monitoring points on the KIRL nighttime directional array, and
for failure to compile a list of programs that have provided the
station's most significant treatment of community issues each
calendar quarter.1 We conclude that Bronco is apparently liable
for forfeiture in the amount of fifteen thousand dollars
($15,000).
II. BACKGROUND
·
2. On May 8, 1998, Bronco Broadcasting Co., Inc. as
licensee of radio station KIRL, St. Charles, Missouri, was issued
a Forfeiture Order (NOF), NAL/Acct. No. 815KC0001, by the
Commission's Compliance and Information Bureau, in the amount of
$7,000 for willful and repeated violations of 47 C.F.R.
§73.62(b)(3). The NOF was issued for the repeated and ongoing
out-of-tolerance condition of the KIRL nighttime directional
operation.
3. On April 1, 1999, Bronco Broadcasting Co., Inc., as
licensee of radio station KIRL, St. Charles, Missouri, was issued
a Notice of Violation (NOV) by the Commission's Kansas City
Office for violation of 47 C.F.R. §11.35, 73.61 and
73.3526(e)(12). The NOV was issued after a March 24, 1999
inspection by FCC Agent Brad Gilliland determined that the KIRL
station logs documented missing EAS tests with no reasons
explaining why the tests were missing. Measurements found the
field intensity at 4 out of 5 designated monitoring points to
exceed the maximum specified for the nighttime directional
operation. In addition, the inspection found no issues-programs
listing in the KIRL public inspection file.
4. On August 4, 2000, broadcast radio station KIRL was
inspected by FCC Agents Brad Gilliland and Ronald Ramage of the
Enforcement Bureau (EB) Kansas City Office. This inspection
found violations pertaining to station logs, failure to take
field intensity measurements, operation with excessive field
intensity, and failure to maintain an issues-programs listing [47
C.F.R. §§11.35(a), 73.61(a), 73.62(b)(3) and 73.3526(e)(12)].
The station logs documented EAS tests from only one of two
required sources with no explanation as to why the tests were
missing. During the inspection the station's contract engineer
stated that the KIRL nighttime power needed to be reduced to 55%
of authorized power to maintain the field intensities within
authorized limits. However, the station was maintaining 95% of
authorized power and 4 out of 5 monitoring points were found with
excessive field intensity. The issues-programs listing were not
being compiled according the station office manager and no
listing was found in the public inspection file. A Notice of
Violation was issued to Bronco for these violations on August 10,
2000 requiring a response within 10 days. A signed receipt was
returned by the U.S. Postal service indicating delivery of the
NOV on August 12, 2000. No reply to the NOV was received from
the licensee to that NOV as of the date of release of this
Notice.
III. DISCUSSION
5. Section 11.35(a) states that ``...broadcast stations
must determine the cause of any failure to receive the required
tests or activation's specified in §§ 11.61(a)(1) and (2).
Appropriate entries must be made in the broadcast station
log...indicating reasons why any tests were not received.''2 At
the time of the inspection on August 4, 2000, the KIRL station
logs for the period of July 16 - August 3 documented receipt of
EAS tests from only the National Weather Service. The logs did
not contain the reasons why the station had failed to receive
required EAS tests from their second required source. The
inspection on March 24, 1999 noted the same violation.
6. Section 73.61(a) states that ``Each AM station using a
directional antenna must make field strength measurements at the
monitoring point locations specified in the instrument of
authorization, as often as necessary to ensure that the field at
those points does not exceed the values specified in the station
authorization.''3 During the inspection on August 4, 2000, the
field intensity was measured to be in excess of the maximum
authorized at 4 out of the 5 monitoring point locations specified
on the KIRL station authorization. The station engineer, Jack
Leverich, stated that power must be maintained at approximately
55% of authorized power to maintain field intensities within
licensed maximums. The KIRL station logs for July 16 - August 3
show power being maintained at or near, 95% of authorized
nighttime power. No indication of reduced power during this
period was found. It was unknown when the station engineer had
taken field intensity measurements prior to the inspection, but
it was believed to be some time in early July 2000. The FCC
inspection of the station on March 24, 1999 found excessive field
intensity at 4 out of 5 nighttime monitoring points.
7. Section 73.62(b)(3) states that ``If any monitoring
point exceeds its specified limit, the licensee must either
terminate operation within 3 hours or reduce power in accordance
with the applicable provisions of §73.1350(d), in order to
eliminate any possibility of interference or excessive radiation
in any direction.''4 During the inspection on August 4, 2000,
the measured field intensity at 4 out of 5 designated nighttime
monitoring points exceeded the maximum allowed under the
station's authorization. According to KIRL station engineer,
Jack Leverich, the nighttime power must be lowered to 55% of
authorized to maintain monitoring points within the licensed
maximums. During the period of July 16 - August 3, 2000 the
nighttime power was being maintained at, or near, 95% of
authorized power. The NOF issued to Bronco on May 8, 1998 was
for the same violation pertaining to the same ongoing out-of-
tolerance condition of the KIRL nighttime directional operation.
The FCC inspection on March 24, 1999 found excessive field
intensity at 4 out of 5 monitoring points.
8. Section 73.3526(e)(12) states that ``For commercial AM
and FM broadcast stations, every three months a list of programs
that have provided the station's most significant treatment of
community issues during the preceding three month period. The
list for each calendar quarter is to be filed by the tenth day of
the succeeding calendar quarter (e.g., January 10 for the quarter
October-December, April 10 for the quarter January-March, etc.).
The list shall include a brief narrative describing what issues
were given significant treatment and the programming that
provided this treatment. The description of the programs shall
include, but shall not be limited to, the time, date, duration,
and title of each program in which the issue was treated.''5 The
inspection on August 4, 2000 determined that the last issues-
programs listing found in the station's public inspection file
was dated in calendar year 1993. The FCC named this as one of
the violations's specified in the NOV issued to Bronco on April
1, 1999.
9. Based on the evidence before us, we find that Bronco
willfully6 and/or repeatedly violated Sections 11.35(a),
73.61(a), 73.62(b)(3) and 73.3526(e)(12) of the Rules. Pursuant
to The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement''), the base forfeiture
amount for failure to maintain required records pertaining the
reasons why EAS tests are not being received is $1,000, the base
forfeiture amount for failure to make required field intensity
measurements as often as necessary to maintain compliance is
$2,000, the base forfeiture amount for failure to maintain
directional pattern within prescribed parameters is $7,000 and
the base forfeiture amount for failure to file quarterly issues-
programs listings in the public inspection file is $3,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D)
of the Communications Act of 1934 (``Act''), as amended, which
include the nature, circumstances, extent, and gravity of the
violation(s), 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.7 Taking these factors
into account, we note that Bronco has a history that demonstrates
a lack of compliance, especially with regards to their nighttime
directional operation. The KIRL nighttime operation has been
cited on several previous occasions for out-of-tolerance
operation and the problem appears to be ongoing. Because of this
an increase in the forfeiture amount for failure to maintain
directional pattern within prescribed parameters to $14,000 is
warranted. However, we also note that in response to the NOF,
Bronco provided sufficient evidence that it was a small business.
Since there is no indication that Bronco's status as a small
business has changed, and after applying all of the Forfeiture
Policy Statement and statutory factors to the instant case, a
$15,000 forfeiture is warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80 of the
Rules,9 Bronco Broadcasting Co., Inc., is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen
thousand dollars ($15,000) for violating Sections 11.35(a),
73.61(a), 73.62(b)(3) and 73.3526(e)(12) of the Rules, 47 C.F.R.
§§ 11.35(a), 73.61(a), 73.62(b)(3) and 73.3526(e)(12).
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules,10 within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Bronco Broadcasting Co., Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
12. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. X3256-001.
13. The response, if any, must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau - TPSD,
NAL/Acct. No. X3256-001, and must include the NAL/Acct. No.
X3256-001.
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; 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. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.11
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Bronco Broadcasting Co., Inc., 3713 Hwy 94
N., St. Charles, Missouri 63301.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City Office
_________________________
1 47 C.F.R. §§11.35(a), 73.61(a), 73.62(b)(3) and 73.3526(e)(12)
2 47 C.F.R. §11.35(a)
3 47 C.F.R. §73.61(a)
4 47 C.F.R. §73.62(b)(3)
5 47 C.F.R. §73.3526(e)(12)
6 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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. . . .'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
7 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement,
12 FCC Rcd at 17100-01 (discussion of upward
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 1.80.
11 See 47 C.F.R. § 1.1914.