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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
KGGF-KUSN, Inc. ) File Number EB-02-KC-395
Licensee of Radio Stations: )
KGGF(AM), KKRK(FM), and ) NAL/Acct.No.200232560012
KUSN(FM); and )
Owner of Antenna Structure ) FRN 0002-5340-55
Registrations: )
#1033307,#1033308,#1033309,and
#1033310
Coffeyville, Kansas
Springfield, Missouri
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 28, 2002
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that KGGF-KUSN, Inc., licensee of radio stations KGGF(AM),
KKRK(FM), and KUSN(FM), and owner of antenna structure numbers
1033307, 1033308, 1033309, and 1033310, willfully and repeatedly
violated Sections 11.35(a), 17.47(a)(1), 17.50 and 73.49 of the
Commission's Rules (``Rules''),1 by: failing to determine the
cause of Emergency Alert System (``EAS'') transmitting and
monitoring failures; failing to inspect antenna structure
lighting; failing to clean and repaint its four antenna
structures as often as necessary to maintain good visibility; and
failing to maintain an effective locked fence around its four
antenna structures which have radio frequency potential at the
base. We conclude that KGGF-KUSN, Inc. is apparently liable for
a forfeiture in the amount of twenty three thousand dollars
($23,000).
II. BACKGROUND
2. On May 1, 1998, an agent of the Commission's Kansas
City Field Office (``Kansas City Office'') inspected AM broadcast
station KGGF, Coffeyville, Kansas, licensed to KGGF-KUSN, Inc.,
and the associated antenna structures owned by KGGF-KUSN, Inc.
That inspection found faded paint on all four antenna structures
associated with the KGGF directional operation. In addition, the
station was not receiving EAS tests from one monitoring source.
3. On May 7, 1998, the Kansas City Office issued a Notice
of Violation (``NOV'') to KGGF-KUSN, Inc. for violations detected
during the May 1, 1998 inspection of KGGF. The NOV specifically
cited 47 C.F.R. §§ 11.17, 11.35(a), 73.1225(c), 73.1350(c),
73.1350(d), 73.1560(a) and 73.1870(c)(3).
4. On May 18, 1998, a reply was received to the NOV from
KGGF-KUSN, Inc. President, John B. Mahaffey. In that reply, Mr.
Mahaffey stated that station personnel were unaware that the
station was required to receive two EAS weekly tests and that
they would follow up with each of the monitoring sources if they
do not receive a weekly EAS test to ascertain if a test was sent.
5. On May 28, 2002, agents from the Kansas City Office
inspected co-owned and co-located stations KGGF(AM) and KKRK(FM),
Coffeyville, Kansas, and KUSN(FM), Dearing, Kansas. All three
stations are licensed to KGGF-KUSN, Inc. The agents also
inspected KGGF-KUSN, Inc.'s antenna structures associated with
radio station KGGF. The inspection was conducted with the
station manager, Mr. John Leonard. This inspection revealed the
following violations:
a. KGGF-KUSN, Inc.'s EAS equipment is shared by
all three of its co-located radio stations.2 KGGF-
KUSN, Inc. failed to receive and initiate required EAS
tests and failed to determine and log the causes for
these failures. No required weekly EAS tests
(``RWT'') had been received from the primary monitoring
source WIBW during the period April 25, 2002 through
May 28, 2002. Also, no RWTs and no required monthly
tests (``RMT'') had been received from KIND-FM
according to the station logs. In addition, none of
the three stations had initiated an RWT during the
period of March 1, 2002 until May 28, 2002 when the FCC
inspection began. No logs documented the reasons why
tests were not being received or sent.
b. None of the four towers associated with the
KGGF(AM) directional operation
had effective fencing. Most of the previous fence was
laying on the ground or missing
entirely. The manager had contracted with one fencing
contractor some time after a
major storm hit the area on May 9, 2002, and obtained
an estimate for the fencing repairs
dated May 16, 2002. The dilapidated condition of the
fencing observed during the
inspection and statements made by the stations'
contract engineer indicated that the
tower fencing had been in a state of disrepair for some
time prior to the May 9, 2002
storm. At the time of inspection, no repairs had been
started and no other contractor had
been contacted in an effort to get the repairs
completed at an earlier date.
c. All four towers owned by, and registered to, KGGF-
KUSN, Inc. under
registration numbers 1033307, 1033308, 1033309 and
1033310, required painting. All
four towers had severely faded paint and rust clearly
shown in the white bands. After the
inspection station management asked the contract
engineer to begin soliciting for bids to
have the towers repainted. d. Three of the four towers did not have operational
lighting. Only tower #1
(1033307) had working lights. Further investigation
found that KGGF-KUSN, Inc.
relied on remote indications to determine the lighting
status of all four towers.
However, the remote indications provided on-off status
only, with no means of
monitoring individual light status. The station
contract engineer stated that he had
previously notified the licensee that the remote system
did not provide sufficient
indications and that visual inspections were necessary
to maintain compliance. The most
recent visual inspection of the structure lighting was
made on May 8, 2002 (20 days prior
to inspection) by the chief operator, Kevin Jones, who
reported that, at that time, the
lighting for all towers was fully operational. KGGF-
KUSN, Inc. personnel did not know
when the lighting for towers #2, 3 and 4 became
inoperable. The agents observed that
towers #2 and #3 had steady burning top lights instead
of flashing beacons, as required
by the registrations for those structures. The towers
were lighted in accordance with the
KGGF station authorization and not the tower
registrations. The licensee was not
conducting quarterly tower inspections and it was
unknown when the tower lighting
systems had been inspected.
III. DISCUSSION
6. Section 11.35(a) states that broadcast stations are
responsible for ensuring that EAS Encoders, EAS Decoders and
Attention Signal generating 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. Additionally, broadcast stations must determine the
cause of any failure to receive the required tests or activations
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. KGGF-KUSN, Inc. stated it had problems
receiving EAS activations at the time of inspection on May 1,
1998. Four years later, the station continued to fail to receive
RWTs and RMTs. The station was not initiating RWTs as required
during the three month period of March 1, 2002 through May 28,
2002 to ensure their encoder was in operational condition until
after the FCC arrived to conduct an inspection. The station
failed to log any reasons why tests were not being received. The
EAS violations were noted at all three stations.
7. Section 17.50 states that antenna structures requiring
painting under this part shall be cleaned or repainted as often
as necessary to maintain good visibility. KGGF-KUSN, Inc. had
not taken any steps to have the tower painting cleaned or
repainted as required. The station manager for KGGF was notified
of the faded condition of the tower paint during the inspection
on May 1, 1998. No efforts appear to have been made to have the
towers painted since that date. The inspection of May 28, 2002
found all four towers to have severely faded paint and rust
showing in the white bands resulting in the blurring of the white
and orange paint bands on all towers and greatly reducing the
visibility of all four towers. All four towers are owned by
KGGF-KUSN, Inc. and are required to be painted by both the
Federal Aviation Administration and the FCC.
8. Section 17.47(a)(1) states that the owner of any
antenna structure shall make an observation of the antenna
structure's lights at least once each 24 hours either visually or
by observing an automatic properly maintained indicator designed
to register any failure of such lights, to insure that all such
lights are functioning properly. On May 28, 2002, the most
recent visual inspection made by station personnel was 20 days
prior on May 8, 2002, in which the lights were reported to be
fully operational. On May 28, 2002, three of the four antenna
structures were without any operational lighting and no station
personnel was aware of the inoperable status of the lighting.
KGGF-KUSN, Inc. relied on remote readings that did not provide
the indications of lighting malfunctions necessary to maintain
compliance. KGGF-KUSN, Inc. was not conducting any lighting
system inspections and it was unknown when the last inspection
had been conducted of the lighting system.
9. Section 73.49 states that antenna towers having radio
frequency potential at the base must be enclosed within effective
locked fences or other enclosures. At the time of inspection on
May 28, 2002, KGGF-KUSN, Inc. did not have effective locked
fencing around any of the four towers associated with the KGGF
operation. The condition of the fencing and statements by KGGF-
KUSN, Inc. personnel indicated the fencing had been ineffective
for some time. Some time after May 9, 2002, station management
obtained one estimate from one fencing company, but that company
advised KGGF-KUSN, Inc. that they were busy and could not
guarantee when the repairs could be scheduled. At the time of
inspection on May 28, 2002, no repairs had been started and no
completion date had been established. KGGF-KUSN, Inc. had not
attempted to contact any other fencing contractors and no
temporary efforts had been made.
10. Based on the evidence before us, we find that KGGF-
KUSN, Inc. willfully3 and repeatedly4 violated Sections 11.35(a),
17.47(a)(1), 17.50 and 73.49 of the Rules by: failing to
determine the causes, and logging such causes, of continuing
failures to send and receive EAS tests; failing to conduct
required monitoring of the tower lighting and lighting systems
associated with the four towers utilized by station KGGF; failing
to clean and repaint the paint on the four KGGF towers; and
failing to maintain an effective locked fence around the four
KGGF towers with RF potential at their base. .
11. Pursuant to Section 1.80(b)(4) of the Commission's
Rules, the base forfeiture amounts for the violation(s) cited in
this notice are: $10,000 for failure to clean and repaint the
towers, $7,000 for failure to maintain effective locked fencing,
$2,000 for failure to conduct required monitoring of the lighting
and lighting system, and $2,000 for failure to determine and log
the cause of any failure to send and receive a required EAS test
(failure to conduct required monitoring).5 Section 503(b)(2)(D)
of the Communications Act of 1934, as amended (``Act''), requires
us to take into account ``... the nature, circumstances, extent,
and gravity of the violation, 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.''6
Regarding the EAS violation, this is a repeat violation that
involves all three of KGGF-KUSN, Inc.'s stations, therefore, an
upwards adjustment of the forfeiture associated with this
violation from $2,000 to $4,000 is appropriate. Considering the
entire record and applying the statutory factors listed above,
this case warrants a $23,000 forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,7 and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules,8 KGGF-
KUSN, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty three thousand dollars
($23,000) for willful and repeated violation of Sections
11.35(a), 17.47(a)(1), 17.50 and 73.49 of the Rules.
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 Notice of Apparent Liability, KGGF-KUSN, 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 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 FRN and NAL/Acct. No. referenced in the letterhead above.
15. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. and FRN referenced in the letterhead above.
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: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.9
18. IT IS
FURTHER ORDERED THAT a copy of this Notice of Apparent Liability
shall be sent by regular mail and Certified Mail Return Receipt
Requested to KGGF-KUSN, Inc. at P.O. Box 4584, Springfield, MO
65808-4584.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director, Kansas City
Office
Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35(a), 17.47(a)(1), 17.50 and 73.49.
2 See 47 C.F.R. §§ 11.51(j) and 11.52(c).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally 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).
4 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies equally to Section 503(b) of the Act, provides that
``[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.''
5 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503 (b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.