Click here for Adobe Acrobat version
Click here for Microsoft Word version

********************************************************
NOTICE
********************************************************

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.

*****************************************************************

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of )
)
Clarke Broadcasting Corporation ) File Number: EB-01-SF-468
Licensee of Station KTIQ(AM) ) NAL/Acct. No. 200232960001
Merced, California ) FRN 0003-7254-54
Facility ID # 87180 )
)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Released: August 30,
2002

By the District Director, San Francisco Office, Enforcement Bureau:

I. INTRODUCTION

1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Clarke Broadcasting Corporation (``Clarke''), licensee
of station KTIQ,1 Merced, California, apparently willfully violated
Sections 73.1350(a) and (c), and 73.1400 of the Commission's Rules
("Rules") by failing to provide adequate transmitter control. We
further find that Clarke apparently willfully and repeatedly
violated 73.1560(a) and 73.1745(a) of the Rules by failing to
maintain proper authorized power.2 We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended
("Act"),3 that Clarke is apparently liable for a forfeiture in the
amount of seven thousand dollars ($7,000).

II. BACKGROUND

2. On August 24, 2001, the Federal Communication Commission
(``FCC'') San Francisco Office received a complaint that station
KTIQ was causing interference to the reception of KXOL in Brigham
City, Utah, by apparently operating with daytime power after
sunset. Station KTIQ is authorized to operate on frequency 1660
kHz with a nominal daytime power of 10.0 kW and a nominal nighttime
power of 1.0 kW, using a non-directional antenna during both
modes.4 According to the terms of the license, the average hour of
sunset for November, after which KTIQ was required to operate
pursuant to its nighttime authority, was 4:45 p.m. Pacific Standard
Time (non-advanced) (``PST'').

3. On eight different days in the month of November in 2001,
Agents from the San Francisco Office monitored the on-air signal of
KTIQ from approximately 4:30 p.m. to 5:00 p.m. The Agents
determined that on all eight days of monitoring the station's
antenna-input power was not lowered at the average local sunset
time (4:45 PM). And, more specifically, on four of the days,
November 13, 22, 23, and 29, 2001, the field intensity level had
not decreased at all by 5:00 p.m. when monitoring ended.

4. On December 4, 2001, San Francisco Office Agents inspected
station KTIQ's transmitter site near Bert Crane Road, Atwater,
California and studio at 514 E. Bellevue Road, Atwater, California.
The inspection revealed that the station was being operated
manually and that during certain weekend and holiday periods the
station had been operated unattended. The station log indicated
that station personnel did not reduce the antenna-input power at
the specified sunset time on numerous occasions during the month of
November, and that the power had not been reduced at all during
four consecutive days when all station personnel were on leave.

5. The inspection also revealed that the station's remote control
system was not programmed to alert the operator of any out of
tolerance condition. The remote control system was also not
calibrated accurately, resulting in antenna-input power of less
than 90% of authorized power. The station's carrier frequency
exceeded the authorized frequency by twenty-two Hertz. The station
log showed that the chief operator had reviewed the log, but failed
to initiate steps to determine the cause of the out of tolerance
conditions and to maintain the antenna-input power within its
limits.

6. On February 13, 2002, the San Francisco Office issued a Notice
of Violation (``NOV'') to Clarke for the violations detected during
the on-air monitoring in November and the December 4, 2001
inspection. The NOV included violations for, among others, failure
to switch to and operate in nighttime mode at sunset, failure to
establish monitoring procedures and schedules to determine
compliance with the operating power requirements (the remote
control system had not been programmed to alert operators of out of
tolerance conditions), failure to calibrate the remote meter (the
remote control reading for antenna-input power was 17.1% low),
failure to maintain the carrier frequency within the authorized
tolerance of 20 Hz (the operating frequency was measured 22 Hz
high), failure to maintain antenna-input power within authorized
tolerance (the antenna-input power was found to be 87.3% of
authorized power), and failure of the chief operator to maintain
supervisory oversight of the station operation.

7. On March 6, 2002, Clarke submitted a reply to the NOV. Clarke
stated that the station had been reconfigured so that the switch to
and from nighttime power is now accomplished automatically rather
than manually, had programmed the remote control system to alert
the station's Chief Engineer at his cellular telephone and pager of
out-of- tolerance conditions at the station, had calibrated the
remote control systems meter to indicate true operating power, and
a consulting engineer had adjusted the carrier frequency to within
tolerance. The response indicated that the chief operator had been
replaced and the new chief operator was performing frequent
inspection of the automated system to insure proper operation. III. DISCUSSION

8. Section 503(b) of the Act provides that any person who
willfully and repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully and 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 and the term ``repeated''
means the commission or omission of such act more than once or for
more than one day.5

9. A broadcast station licensee is responsible for maintaining
and operating the station in compliance with the technical rules
and in accordance with the terms of the station license. Licensees
must not exceed operating power limits or operate in daytime mode
beyond local sunset time. In particular, Section 73.1745(a) states
in part that, ``[n]o broadcast station shall operate at times, or
with modes or power, other than those specified and made part of
the license....'' and Section 73.1560(a)(1) and (2) of the Rules
states in part that, ``the antenna-input power of an AM station as
determined by the procedures specified in з 73.51 must be
maintained as near as is practicable to the authorized antenna-
input power and may not be less than 90% or more than 105% of the
authorized power....Whenever the transmitter of an AM station
cannot be placed into the specified operating mode at the time
required, transmissions must be immediately terminated....'' On
November 6, 7, 13, 21, 22, 23, 28, and 29, 2001, KTIQ exceeded
power limits by operating with daytime power (10 kW) after the
specified local sunset time. On November 13, 22, 23, and 29, 2001,
the station operated at least 15 minutes beyond sunset time based
on FCC observations. During the period November 22-25, 2001, the
station was operated unattended because all station personnel were
on leave during the holiday period, and the operating modes were
not being changed during this period because the station was
configured for manual mode changes.

10. Licensees must maintain adequate control of the station
transmitter. Section 73.1350(a) of the Rules states in part that,
``[e]ach licensee is responsible for maintaining and operating its
broadcast station in a manner which complies with the technical
rules...and...with the terms of the station authorization.''
Section 73.1350(c)(1) and (2) of the Rules states in part that,
``[t]he licensee must establish monitoring procedures and schedules
for the station....Monitoring procedures and schedules must enable
the licensee to determine compliance with з 73.1560 regarding
operating power and AM station mode of operation...'' Section
73.1400 states in part that, ``[t]he licensee of an AM...station is
responsible for assuring that at all times the station operates
within tolerances specified by applicable technical rules contained
in this paragraph and in accordance with the terms of the station
authorization...'' In general, this section permits any method or
level of transmission system monitoring and supervision that
precludes out-of-tolerance operation. KTIQ's remote control system
had not been programmed to alert the operator of out of tolerance
conditions, the remote control system was not calibrated to provide
accurate indications of antenna-input power, the station's carrier
frequency was beyond authorized tolerance, and the chief operator
had failed to initiate steps to correct out-of-tolerance conditions
noted in the station log on at least ten occasions in November
2001.

11. Based on the evidence before us, we find that Clarke
willfully violated Sections 73.1350(a) and (c), and 73.1400 of the
Commission's Rules by failing to maintain and operate station KTIQ
in a manner which complied with the technical rules and the station
license terms, and failing to establish monitoring procedures to
insure compliance with the authorized operating power and AM mode
of operation. In addition, we find Clarke willfully and repeatedly
violated Sections 73.1560(a) and 73.1745(a) of the Commission's
Rules by failing to maintain proper operating power and mode of
operation.

12. The base forfeiture amount set by The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"),6 for exceeding power limits is $4,000 and for failure
to provide adequate transmitter control 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 Act,7
which include the nature, circumstances, 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. Applying the Forfeiture
Policy Statement and the statutory factors to the instant case, a
$7,000 forfeiture is warranted.

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,
0.311 and 1.80 of the Commission's Rules, CLARKE BROADCASTING
CORPORATION, is hereby NOTIFIED of an APPARENT LIABILITY FOR A
FORFEITURE in the amount of seven thousand dollars ($7,000) for
violations of Sections 73.1350(a) and (c), 73.1400, 73.1560(a) and
73.1745(a) of the Rules.8

14. 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 Clarke Broadcasting Corporation SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.

15. Payment of the forfeiture 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) referenced above and also must note the
NAL/Acct. No. referenced in the caption.

16. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Technical and Public Safety
Division, 445 12th Street, S.W., Washington, D.C. 20554 and must
include the NAL/Acct. No. referenced in the caption.

17. 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.

18. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.9

19. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7099 3220 0002 6510
8219, Return Receipt Requested, to Clarke Broadcasting Corporation,
1175 Fairview Drive, Suite N, Carson City, NV 89701.

FEDERAL COMMUNICATIONS COMMISSION

Thomas N. Van Stavern
District Director, San Francisco Office
_________________________

1 The station's call sign at the time of inspection was KAXW.
The call sign change to KTIQ was authorized on February 12, 2002. For
ease of reference, the current call sign is used throughout this NAL.

2 47 C.F.R. зз 73.1350(a) and (c), 73.1400, 73.1560(a), and
73.1745(a).

3 47 U.S.C. з 503(b).

4 Clarke Broadcasting Corporation, Station KAXW (currently KTIQ)
License File Number BL-20010629ACM, granted September 19, 2001.

5 47 U.S.C. з 503(b). Section 312(f)(1) of the Act, 47 U.S.C. з
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 ...." See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991). Section 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 one day.''

6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

7 47 U.S.C. з 503(b)(2)(D).

8 47 U.S.C. з 503(b), 47 C.F.R. зз 0.111, 0.311, 1.80,
73.1350(a) and (c), 73.1400, 73.1560(a), and 73.1745(a).

9 See 47 C.F.R. з 1.1914.