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

In the Matter of                  )
Millcreek Broadcasting, L.L.C.    )
Licensee of Station KUUU-FM1      )     File No. 99-DV-522 
Salt Lake City, Utah              )
Facility ID # 86882               )
Licensee of Station KUDD(FM)      )     File No. EB-00-DV-302
Roy, Utah                         )
Facility ID # 33438               )
Licensee of Station KUUU(FM)      )     File No. EB-01-DV-062
Tooele, Utah                      )
Facility ID # 37876               )
                                 )     NAL/Acct. No. 200232800008
                                 )     FRN  0004-8307-33


                                                  Released:  June 19, 

By the District Director, Denver Office, Enforcement Bureau:

                           I.  INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture ("NAL"), 
we find that Millcreek Broadcasting, L.L.C., ("Millcreek") licensee of 
Utah stations KUUU-FM1 in Salt Lake City, KUDD1 in Roy, KUUU in Tooele, 
and KUDD-FM1 in Salt Lake City, apparently willfully violated Sections 
11.35(a) and 74.1251 of the Commission's Rules ("Rules")2 by failing to 
have operational Emergency Alert System ("EAS") equipment at the main 
FM stations KUUU and KUDD and by operating translator station KUUU-FM1 
with an unauthorized transmission system at an unauthorized location 
and with excessive effective radiated power.  We conclude, pursuant to 
Section 503(b) of the Communications Act of 1934, as amended ("Act"),3 
that Millcreek is apparently liable for a forfeiture in the amount of 
twenty-two thousand dollars ($22,000).

                            II.  BACKGROUND

     2.   On June 20, 2000, two Denver Office Agents inspected 
Millcreeks' co-located full power FM stations KUUU and KUDD and their 
respective booster stations KUUU-FM1 and KUDD-FM1.  At the time of 
inspection, the main transmitters used by stations KUUU and KUDD, 
located in the Stansbury Mountains and Promontory Peak, respectively, 
were not operational.  However, the booster station KUUU-FM1, located 
at a manned site on Farnsworth Peak, was operational, as was the 
auxiliary antenna facility used for KUDD, located at Ensign Peak.  Both 
stations were rebroadcasting the programming of their respective main 
FM station. 

     3.   At the time of inspection, EAS equipment, although present at 
the co-located facilities for stations KUUU and KUDD, was not installed 
or connected so as to be operational.  Review of the station log 
maintained by KUDD and KUUU revealed that no required weekly test (RWT) 
and no required monthly test (RMT) had been received or sent by either 
station for the period April 30, 2000, through June 17, 2000.  The 
station logs contained no annotation indicating EAS equipment failure 
or explaining the missed EAS RWTs and RMTs.  

     4.   On March 9 and 12, 2001, the Denver Office issued Notices of 
Violation ("NOV") to Millcreek for the FCC rule violations detected at 
KUUU and KUDD during the inspection, including, among others, a 
violation of Section 11.35 of the Rules for failing to have EAS 
equipment installed and operational.  On May 2, 2001, Millcreek 
responded to the NOV's.  Millcreek acknowledged the violation of the 
EAS rules and stated that immediately following the FCC inspection the 
EAS system for KUUU and KUDD was restored to fully operational status.  
In addition, Millcreek reported that procedures have been established 
and communicated to station staff to ensure that all appropriate EAS 
receive tests and equipment issues are properly logged and that 
appropriate entries are entered in the station log indicating reasons 
why tests were not received. 

     5.   Denver Office Agents also inspected booster station KUUU-FM1 
on June 20, 2000.  KUUU-FM1 was authorized at that time to operate with 
24 watts transmitter output power and an effective radiated power in 
the horizontal plane of 50 watts with the horizontally polarized 
antenna and 50 watts with the vertically polarized antenna.  In 
particular, KUUU-FM1 was authorized to operate using two Scala CA5-
FM/CP/RM directional antennas with major lobe directions of 50 degrees 
with 25% power and 135 degrees with 75% power, at a height of radiation 
center above ground at six meters on a tower located on the east side 
of the main transmitter building at licensed coordinates N40-39-34, 
W112-12-06.  At the time of inspection on June 20, 2000, KUUU-FM1 was 
operating with transmitter output power measured at 285 watts and an 
effective radiated power in excess of 142 watts with one vertically 
polarized antenna.  In particular, KUUU-FM1 was operating using one 
NiCom non-directional vertical polarized antenna, similar to Model BKG-
1/P, at a height of radiation center above ground at approximately 14 
meters, on a steel pole on the west side of the main building atop 
Farnsworth Peak at coordinates of  N40-39-35, W112-12-06. 

     6.   Millcreek suspended operation of KUUU-FM1 on the unauthorized 
antenna at the unauthorized power level immediately after the FCC 
inspection.  Operation of KUUU-FM1 was resumed only after the 
transmitter was reconnected to the authorized antennas at the 
authorized height, effective radiated power and transmitted power 

     7.   On March 5, 2001, the Denver Office issued a Notice of 
Violation ("NOV") to Millcreek for station KUUU-FM1's failure at the 
time of the inspection to operate in accordance with the technical 
parameters of the translator station license, which included operation 
with an unauthorized transmitting antenna system, operating at an 
unauthorized location and operating with excessive effective radiated 

power.4  On May 2, 2001, Millcreek responded to the NOV.  Millcreek 
acknowledged the violations and stated that a written policy was 
developed and distributed to the technical personnel stating that all 
future changes to the station's operating plant must be approved in 
advance by the station's manager, who will engage as appropriate, the 
licensee's consulting engineer to ensure that any alterations to the 
station's transmitting equipment comport with the Commission's Rules.  
Following the inspection of the booster, Millcreek submitted 
applications seeking authority to modify the technical parameters of 
the operation and authority to establish the KUUU-FM1 booster facility 
as an auxiliary facility.5

                            III. DISCUSSION

     8.   Section 503(b) of the Act provides that any person who 
willfully fails to comply substantially with the terms and conditions 
of any license, or willfully 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.6

     9.   Commission licensees are responsible for familiarizing 
themselves and complying with applicable statutes and Commission Rules 
and policies.  The Rules provide that every AM and FM broadcast station 
is part of the nationwide EAS network and is categorized as a 
participating national EAS source unless the station affirmatively 
requests authority to not participate.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.8  State and local area plans identify local primary sources 
responsible for coordinating carriage of common emergency messages from 
sources such as the National Weather Service or local emergency 
management officials.9 

     10.  Section 11.35(a) of the Rules states that "[b]roadcast 
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."  Millcreek did not have EAS equipment 
installed and operational at stations KUUU and KUDD at the time of 
inspection.  Based on the evidence, we find that Millcreek willfully 
violated Section 11.35 of the Rules by failing to have an operational 

     11.  In general, the Rules require stations to operate in 
compliance with applicable technical rules and the terms of the station 
authorization.  Section 74.1251 of the Rules provides that licensees 
must formally apply to the FCC and be granted permission by the FCC 
before making a change in the transmitting antenna system including the 
direction of radiation or directive antenna pattern, a change in the 
location of the translator or booster except a move within the same 
building or upon the same pole or tower, a change of authorized 
effective radiated power and a change in the area being served.  At the 
time of inspection on June 20, 2000, KUUU-FM1 was operating with an 
unauthorized transmitting antenna system installed at an antenna height 
exceeding that authorized at a location 1 from its authorized location 
with excessive effective radiated power and was serving areas outside 
the principal community to be served.  Based on the evidence before us, 
we find that on June 20, 2000, Millcreek willfully violated Section 
74.1251 of the Rules by failing to operate KUUU-FM1 in accordance with 
the technical parameters of the booster station's authorization.  

     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"),10 and Section 1.80 of the Commissions Rules,11 for EAS 
equipment not installed or operational is $8,000, for use of 
unauthorized equipment is $5,000, for exceeding authorized antenna 
height is $5,000, for exceeding power limits is $4,000.  Application of 
the base amount to the noted violations results in a total base 
forfeiture amount of $22,000.  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,12 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.  The violations for which forfeitures are assessed in this NAL 
are the more serious of the numerous violations of the Rules discovered 
at the four Millcreek stations at the time of the inspection.  Failure 
to have EAS equipment installed and operational at both of the main FM 
stations serving a significant area of Utah,13 is a serious safety-
related rule violation.  The significantly overpowered operation of 
booster KUUU-FM1, which resulted in signal coverage far beyond the 60 
dbu (1 mV/m) contour of the main FM station, is a serious violation of 
the Commission's technical and interference protection rules.  Taking 
all of the evidence, the statutory factors and the Forfeiture Policy 
Statement into consideration, a $22,000 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, that Millcreek Broadcasting, 
the amount of twenty-two thousand dollars ($22,000) for violations of 
Sections 11.35 and 74.1251 of the Rules.14 

     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 
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) 
and 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. 20554.15

LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4290, 
Return Receipt Requested, to Millcreek Broadcasting, L.L.C., 980 N. 
Michigan Avenue, Suite 1880, Chicago, Illinois 60611, and courtesy 
copied to Shainis & Peltzman, Chartered, Attn:  Aaron Shainis, 1850 M 
Street, NW, Suite 240, Washington, D.C. 20036.

                              FEDERAL COMMUNICATIONS COMMISSION


                              Leo E. Cirbo
                              District Director, Denver Office


     11 The licensed call signs for stations KUDD and KUDD-FM1 were 
changed from KFVR-FM and KFVR-FM1, subsequent to the inspection on June 
20, 2000.  All references will be made to the current call signs KUDD 
and KUDD-FM1.

     2  47 C.F.R.  11.35(a) and 74.1251.

     3  47 U.S.C  503(b).

     4  The Denver Office also issued an NOV on March 2, 2001, to 
Millcreek for station KUDD-FM1's failure at the time of the inspection 
to operate in accordance with the authorized technical parameters.  
KUDD-FM1 was operating at the time of the inspection with only one of 
the two antennas specified in the authorization. 

     5  See File No. BPFTB-20000626AFE, application for authority to 
use a non-directional antenna system, granted December 20, 2000 by File 
No. BLFTB-20000928APN.  See also File No. BXPH-20000626AFF, application 
for construction permit for auxiliary facility, granted September 27, 
2000, and File No. BXLH-20010315AAE, license application to cover 
construction permit of auxiliary facility.  

     6  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).

     7  47 C.F.R.  11.11 and 11.41.

     8  47 C.F.R.  11.1 and 11.21.

     9  47 C.F.R.  11.18. State EAS plans contain guidelines that must 
be followed by broadcast and cable personnel, emergency officials and 
National Weather Service personnel to activate the EAS for state and 
local emergency alerts.  The state plans include the EAS header codes 
and messages to be transmitted by the primary state, local and relay 
EAS sources.

     10  12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

     11  47 C.F.R.  1.80.

     12  47 U.S.C.  503(b)(2)(D).

     13  KUDD and KUUU both operate under the Wasatch Front Operational 
EAS Area under the State of Utah EAS plan.  KUUU serves the Salt Lake 
City region and KUDD serves the Ogden region in Utah.

     14  47 U.S.C.  503(b); 47 C.F.R.  0.111, 0.311, 1.80, 11.35 and 

     15  See 47 C.F.R.  1.1914.