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.


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

In the Matter of                 )
High Peaks Broadcasting, LLC     )
Licensee of Station KXDC         )      File No. EB-01-DV-446
Estes Park, Colorado             )
Facility ID # 76780              )
Licensee of Station KXUU-FM1     )      File No. EB-01-DV-020
Boulder, Colorado                )
Facility ID # 106692             )
                                 )      NAL/Acct. No. 200232800009
                                 )      FRN # 0005-2590-07


                                             Released:  June 28, 2002

By the District Director, Denver Office, Enforcement Bureau:

                           I.  INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture ("NAL"), 
we find that High Peaks Broadcasting, LLC ("High Peaks"), licensee of 
FM radio station KXDC1, Estes Park, Colorado, and FM booster station 
KXUU-FM1 in Boulder, Colorado, has apparently willfully and repeatedly 
violated Section 301 of the Communications Act of 1934 ("Act")2, as 
amended, by operating two unlicensed studio-to-transmitter links 
("STL") and has apparently willfully violated Section 74.1235(c) of 
the Commission's Rules ("Rules")3 by operating booster station KXUU-
FM1 with power in excess of that authorized.  We conclude, pursuant to 
Section 503(b) of the Communications Act of 1934, as amended ("Act"),4 
that High Peaks is apparently liable for a forfeiture in the amount of 
twenty-four thousand dollars ($24,000).

                            II.  BACKGROUND

     2.   On April 17 and April 18, 2001, a Denver Office Agent 
conducted an inspection of the KXDC and KXUU-FM1 studio and 
transmitting facilities.  FM station KXDC is authorized by the FCC to 
operate on 102.1 MHz to serve Estes Park, Colorado.  The main 
transmitter is authorized to operate from a site located 0.54 miles 
west of the intersection of Route 7 and Serenity Road, just outside of 
Estes Park.  On February 12, 2001, High Peaks was granted a license 
for a FM booster station, KXUU-FM1, to serve the principal community 
of Boulder, Colorado, on frequency 102.1 MHz.5  KXUU-FM1 is authorized 
to operate with an effective radiated power ("ERP") of 175 watts and a 
center of radiation 40 meters above ground level ("AGL") from a 
communication site on Lee Hill, approximately 8.5 kilometers northwest 
of Boulder, Colorado.  KXDC maintains a main studio at 131 Stanley 
Avenue in Estes Park, Colorado, and an alternate studio at 8975 East 
Kenyon Street in Denver, Colorado.  

     3.   At the time of the inspection, KXDC was operating an aural 
STL on 949.0 MHz to transmit programming from the Mountain View Bible 
Fellowship Church located at 1575 South St. Vrain in Estes Park to the 
main transmitter site.  A check of the FCC records found no license on 
file for KXDC to operate a STL on 949.0 MHz.  

     4.   During the inspection, the Denver Office Agent also found 
that KXUU-FM1 was operating an aural STL on 951.5 MHz to transmit 
programming from a tower on Wasach Road, in Longmont, Colorado, to the 
booster transmitter communications site on Lee Hill.  A check of the 
FCC records found no license on file for KXUU-FM1 to operate a STL on 
951.5 MHz.

     5.   The Denver Office Agent also found that KXUU-FM1 was 
transmitting with an ERP of 333 watts.  This is approximately 90% over 
the authorized power of 175 watts.  The signal for KXUU-FM1 could be 
heard in the southern part of Denver, approximately 75 miles from 
Estes Park and far outside the 60 dbu (1 mV/m) contour of KXDC.  

     6.   On the afternoon of April 18, 2001, after being advised by 
the FCC Agents of the outstanding rule violations found during the 
inspection, including the overpower operation and unlicensed STLs, 
both KXDC and KXUU-FM1 went off-the-air voluntarily.  The stations 
remained off-the-air for several days until such time that the booster 
complied with the terms of the booster license and the STLs could 
operate legally under the provisions of Part 74.24 of the Commission's 
Rules, 47 C.F.R.  74.24. 

     7.   On April 20, 2001, Denver Office Agents spoke with KXDC and 
KXUU-FM1 personnel regarding the unlicensed STLs and overpowered 
operation of the booster station.  During this meeting High Peaks 
personnel admitted the STLs were not licensed, but asserted it was an 
oversight and they would obtain the required licenses. 

     8.   On May 23, 2001, High Peaks received licenses and associated 
call signs WPSJ746 for the STL on 951.5 MHz, and WPSJ786 for the STL 
on 949.0 MHz.

                           III.  DISCUSSION

     9.   Section 503(b) of the 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.  The term "willful" as used in 
Section 503(b) has been interpreted to mean simply that the acts or 
omissions are committed knowingly.6  The term "repeated" means the 
commission or omission of such act more than once or for more than one 
day.7  Section 301 of the Act sets forth generally that no person 
shall use or operate any apparatus for the transmission of energy or 
communications or signals by radio within the United States except 
under and in accordance with the Act and with a license.8  The Rules 
governing the licensing and operation of aural broadcast auxiliary 
stations, including STLs used by FM radio stations are set forth under 
Subpart E of Part 74 of the Rules.9  On April 17 and April 18, 2001, 
High Peak was operating unlicensed STLs in connection with the 
broadcast operations of both KXDC and KXUU-FM1.  

     10.  The Rules require stations to operate in compliance with 
applicable technical rules and the terms of the station authorization.  
Section 74.1235(c) of the Rules states in part that "[t]he effective 
radiated power of FM booster stations shall be limited such that the 
predicted service contour of the booster station, computed in 
accordance with  73.313 paragraphs (a) through (d) of this chapter, 
may not extend beyond the corresponding service contour of the primary 
FM station that the booster rebroadcasts."  The KXUU-FM1 booster was 
licensed for an ERP of 175 watts so as not to extend the service 
contour of KXDC.  On April 18, 2001, booster station KXUU-FM1 had an 
ERP of 333 watts, which exceeded the licensed power of 175 watts by 
90%, and extended the signal beyond the service contour of KXDC.

     11.  Based on the evidence before us, we find that High Peaks 
operated radio transmission apparatus without a Commission 
authorization in willful and repeated violation of Section 301 of the 
Act and exceeded authorized power in willful violation of Section 
74.1235(c) of the Rules.  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 
unlicensed radio operation is $10,000 and for exceeding power limits 
is $4,000.  Application of the base amount to the two instances of 
unlicensed operations and the violation of the technical parameters of 
the station's authorization results in a total base forfeiture of 
$24,000.  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, any history of prior offenses, 
ability to pay, and other such matters as justice may require.  
Applying the Forfeiture Policy Statement and statutory factors to the 
instant case, a $24,000 forfeiture is warranted.

                         IV.  ORDERING CLAUSES

     12.  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 Rules, High Peaks Broadcasting, LLC, is hereby 
twenty-four thousand dollars ($24,000) for willfully and repeatedly 
violating Sections 301 of the Act and willfully violating Section 
74.1235(c) of the Rules.13

     13.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the 
Rules, within thirty days of the release date of this NOTICE OF 
APPARENT LIABILITY, High Peaks 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.

     14.  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. 

     15.  The response, if any, must be mailed to the 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.

     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 submitted.

     17.  Requests for payment of the full amount of this Notice of 
Apparent Liability under an installment plan should be sent to: Chief, 
Revenue and Receivable Operations Group, 445 12th Street, S.W., 
Washington, D.C. 20554.14

LIABILITY shall be sent by Certified Mail No. 7001 0320 0002 9702 4283 
/ Return Receipt Requested to High Peaks Broadcasting, LLC, 980 N. 
Michigan Avenue, Suite 1880, Chicago, Illinois 60611, and courtesy 
copied to Shainis & Peltzman, Chartered, Attn:  Aaron Shainis, 1850 M 
Street, N.W. - Suite 240, Washington, D.C. 20036.

                                 FEDERAL COMMUNICATIONS COMMISSION


                                 Leo E. Cirbo
                                 District Director, Denver Office


1     At the time of inspection, KXDC was operating under call sign 
KXUU.  Effective June 10, 2002, the call sign was changed to KXDC.  
The booster station continues to operate under call sign KXUU-FM1.  An 
application to change the call sign to KXDC-FM1 is pending. 

     2 47 U.S.C.  301.

     3 47 C.F.R.  74.1235(c). 

     4 47 U.S.C.  503(b).
     5 KXUU-FM1 FCC File No. BLFTB-20000815ACT.  Boulder is 
approximately 35 miles southeast of Estes Park.  
     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 Section 312(f)(2), 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 one day."

     8 47 U.S.C.  301.

     9 47 C.F.R.  74.501 et seq.

     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).
       47 U.S.C.  301 and 503(b); 47 C.F.R.  0.111, 0.311, 1.80, 
and 74.1235(c).

     14 See 47 C.F.R.  1.1914.