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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Pilgrim Communications, Inc. ) File Number: EB-01-DV-300
Licensee of Station KWYD(AM) ) NAL/Acct. No.
Colorado Springs, Colorado 200332800005
Facility ID # 51816 ) FRN 0006-1472-19
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the District Director, Denver Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find Pilgrim Communications, Inc. ("Pilgrim"),
licensee of AM radio station KWYD in Colorado Springs, Colorado,
apparently liable for a forfeiture in the amount of nineteen
thousand dollars ($19,000) for willful and repeated violation of
Sections 11.35, 73.1125(a), 73.1560(a) and 73.1745(a) of the
Commission's Rules ("Rules").1 Specifically, we find Pilgrim
apparently liable for failing to have Emergency Alert System
("EAS") equipment operational, failing to maintain the requisite
main studio presence, failing to maintain power levels between
90% and 105% of authorized power levels and exceeding the
authorized nighttime power level at station KWYD.
2. During routine station inspections in the spring and
summer of 2001, agents from the Commission's Denver, Colorado
Field Office ("Denver Office") inspected several AM radio
stations in Colorado owned and operated by Pilgrim. Several
Notices of Violation ("NOVs") were issued to Pilgrim for various
rule violations discovered at the stations. In this NAL, we
address the most serious violations discovered at station KWYD.
3. Station KWYD in Colorado Springs is authorized to
operate with 10,000 watts of power during daytime hours and 67
watts of power during nighttime hours on frequency 1580 kHz.
According to the terms of the license, the average hours of
sunset to sunrise for August 2001, were 8:00 p.m. to 6:15 a.m.,
MDT. On August 21, 2001, an agent from the Denver Office
monitored the on-air signal of station KWYD, and specifically,
from 7:10 p.m. to 9:00 p.m. MDT, the agent conducted numerous
field strength measurements near KWYD's transmitter and observed
no power level changes as required by KWYD's station
authorization. During this entire period, KWYD appeared to be
operating with a daytime power level of 10,000 watts and
specifically from 8:00 p.m. to 9:00 p.m. exceeded the nighttime
authorized power level by over 14,925%. According to the station
authorization, KWYD should have switched from daytime to
nighttime power at 8:00 p.m. Sometime between August 21, 2001,
at 9:00 p.m. MDT and the subsequent inspection on August 22,
2001, KWYD switched power levels from 10,000 watts to 225 watts.
On August 22, 2001, from 5:40 a.m. to 9:30 a.m. MDT, the agent
again conducted numerous field strength measurements near KWYD's
transmitter and observed no power level changes as required by
KWYD's authorization. Based on actual transmitter readings
observed at the KWYD transmitter site during the FCC inspection
on August 22, 2001, KWYD had been operating with approximately
225 watts. Specifically from 5:40 a.m. to 6:15 a.m., KWYD
exceeded the nighttime authorized power level by over 336% and
from 6:15 a.m. to 9:30 a.m. exceeded the daytime authorized power
level by over 4,444%.
4. On the morning of August 22, 2001, when the agent
initially attempted to inspect the KWYD main studio at 490 Willow
Springs Road, Fountain, Colorado, the main studio was closed and
unstaffed. A sign on the door provided the name and telephone
number of the general manager, but stated that as of July 15,
2001, the station was open by appointment only. After contacting
the general manager, the agent was able to complete the
inspection. During the inspection of KWYD, the agent also found
that while EAS equipment was installed, the EAS system was not
fully operational because the EAS system was not programmed. In
addition, the agent found no logs in existence from March to
August 2001, reflecting the receipt or transmission of required
weekly or monthly tests.
5. On December 12, 2001, the Denver Office issued a NOV to
Pilgrim for the violations discovered on August 21 and 22, 2001,
at station KWYD, including, among other violations, failing to
have functionally operable EAS equipment (Section 11.35),
operating at power levels less than 90% and more than 105% of
authorized power (Section 73.1560(a)), and failing to maintain
the required main studio presence (Section 73.1125(a)). On
January 4, 2002, Pilgrim responded, stating in part that the Sine
Remote Control system was not programmed after KWYD's studio
relocation, which occurred in March 2001. While the station's
power had been manually changed over this time by station
personnel, Pilgrim did not know why the station's power was not
raised or lowered at the proper time on August 21 and 22, 2001.
In addition, Pilgrim stated that the HollyAnn EAS equipment was
also not properly programmed following the studio relocation.
Pilgrim further stated that someone has now been hired to be at
the main studio between 9:00 a.m. and 5:00 p.m., Monday through
6. 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.2 The term "willful" as used in
Section 503(b) has been interpreted to mean simply that the acts
or omissions are committed knowingly.3 The term "repeated" means
that the violation occurred on more than one day.4
7. The EAS provides the President and state and local
governments with the capability to provide immediate and
emergency communications and information to the general public.5
Section 11.35 of the Rules provides that broadcast stations are
responsible for ensuring that EAS Encoders, EAS Decoders and
Attention Signal generating and receiving equipment used as part
of the EAS are installed so that the monitoring and transmitting
functions are available during the times the stations and systems
are in operation. Between March and August 2001, and
specifically on August 22, 2001, the EAS equipment at KWYD was
not programmed so as to ensure that the requisite monitoring and
transmitting functions were available.
8. Section 73.1560(a) of the Rules provides that AM
stations must be maintained as near as practicable to the
authorized antenna input power and may not be less than 90% nor
more than 105% of the authorized power. 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 a part of the license unless otherwise permitted by Part 73
of the Rules. On August 21 and August 22, 2001, Pilgrim station
KWYD did not reduce the nighttime power and increase the daytime
power at the appropriate times to conform to the power levels
specified by the station authorization and operated at less than
90% and more than 105% of authorized power, in violation of
Sections 73.1560(a) and 73.1745(a) of the Rules.
9. Section 73.1125(a) of the Rules generally requires
broadcast stations to maintain a main studio at one of the
following locations: (i) within the station's community of
license; (ii) at any location within the principal community
contour of any AM, FM, TV broadcast station licensed to the
station's community of license; or (iii) within twenty-five miles
from the reference coordinates of the center of its community of
license. The station's main studio must serve the needs and
interests of the residents of the station's community of license.
To fulfill this function, a station must, among other things,
maintain a meaningful management and staff presence at its main
studio.6 The Commission has defined a minimally acceptable
"meaningful presence" as full-time managerial and full-time staff
personnel.7 In addition, there must be "management and staff
presence" on a full-time basis during normal business hours to be
considered "meaningful." Although management personnel need not
be "chained to their desks" during normal business hours, they
must "report to work at the main studio on a daily basis, spend a
substantial amount of time there and ... use the studio as a
'home base.'"8 From July 15 to August 22, 2001, Pilgrim had no
management or staff presence during normal business hours at the
main studios of station KWYD in violation of Section 73.1125(a)
of the Rules.
10. Based on the evidence before us, we find that Pilgrim
apparently failed to have operational EAS equipment at station
KWYD from March 2001, through August 2001, in willful and
repeated violation of Section 11.35 of the Rules. We further
find that Pilgrim apparently exceeded the authorized nighttime
power level on August 21, 2001, and failed to maintain power
levels between 90% and 105% of authorized power levels at station
KWYD on August 21 and August 22, 2001, in willful and repeated
violation of Sections 73.1560(a) and 73.1745(a) of the Rules.
Additionally, we find that Pilgrim failed to maintain the
required management and staff presence at station KWYD from July
15, 2001, to August 22, 2001, in willful and repeated violation
of Section 73.1125(a) of the Rules.
11. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"),9 and Section 1.80 of the Rules,10 the base
forfeiture is $8,000 for not having operational EAS equipment in
violation of Section 11.35,11 $4,000 for exceeding power limits
at nighttime in violation of Sections 73.1560(a) and 73.1745(a)
of the Rules;12 and $7,000 for failing to maintain the required
main studio presence in violation of Section 73.1125(a) of the
Rules.13 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 Act which include the nature, circumstance,
extent and gravity of the violation(s), and with respect to the
violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require.14 Applying the Forfeiture Policy Statement and the
statutory factors to the instant case, a $19,000 forfeiture is
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Section 1.80 of the Rules, Pilgrim
Communications, Inc., is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of nineteen thousand
dollars ($19,000) for willfully and repeatedly violating Sections
11.35, 73.1125(a), 73.1560(a), and 73.1745(a) of the Rules at
13. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NAL, Pilgrim Communications, Inc., SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
14. Payment may be made 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 must include the FCC
Registration Number (FRN) and the NAL/Acct. No. referenced in the
caption. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
15. The response, if any, must be mailed to the Office of
the Secretary, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Technical and Public Safety Division and must include NAL/Acct.
No. referenced in the caption.
16. 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
17. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Federal Communications
Commission, Enforcement Bureau, Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (``OCBO'') set
forth in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by regular mail and certified
mail number 7001 0320 0002 9702 9592, return receipt requested,
to Pilgrim Communications, Inc., 54 Monument Circle, Suite 250,
Indianapolis, Indiana 46204.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
Enclosure: Attachment A
1 47 C.F.R. §§ 11.35, 73.1125(a), 73.1560(a) and 73.1745(a).
2 47 U.S.C. § 503(b).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 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 Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
4 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
also applies to Section 503(b), provides: "[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
5 47 C.F.R. § 11.1.
6 See Main Studio and Program Origination Rules, 3 FCC Rcd
5024, 5026 (1988).
7 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 and n.2 (1992), clarified, 7 FCC Rcd 6800 (1992).
8 Jones Eastern of the Outer Banks, Inc., 7 FCC Rcd 6800,
9 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
10 47 C.F.R. § 1.80.
11 See, e.g., Maria L. Salazar, 17 FCC Rcd 14090 (Enf. Bur.
2002); Arnold Broadcasting Company, Inc., 16 FCC Rcd 13600, 13602
(2001) (both imposing $8,000 forfeitures for not having EAS
equipment installed and operational.)
12 See, e.g., Buchanan Broadcasting Company, Inc., 15 FCC
Rcd 24363 (2000) (upholding a $4,000 forfeiture for exceeding
nighttime power limits).
13 See, e.g., American Broadcasting Educational Foundation,
15 FCC Rcd 8630, 8630 (Enf. Bur. 2000) (imposing a $7,000
forfeiture for violation of the main studio rules).
14 47 U.S.C. § 503(b)(2)(D).
15 See 47 C.F.R. § 1.1914.