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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
KYOO Communications )
Station KYOO (AM) ) File No. EB-00-KC-
193
Station KYOO-FM ) EB-00-
KC-194
Bolivar, Missouri 65613 ) NAL/Acct.No.
20013256-001
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
31, 2001
By the Enforcement Bureau, Kansas City Field Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that KYOO Communications, licensee of station KYOO (AM),
Bolivar, Missouri, and KYOO-FM, Half-Way, Missouri, has
apparently violated sections 11.35(b), 17.50, 73.1350(c)(1) and
73.1800(a) of the Commission's Rules (``Rules'') for failure to
maintain operational Emergency Alert System (``EAS'') equipment,
for failure to clean and repaint the KYOO antenna structure as
often as necessary to maintain good visibility, for failure to
monitor and control the KYOO transmitter and for failure to
maintain station logs.1 We conclude that KYOO Communications is
apparently liable for forfeiture in the amount of twenty two
thousand dollars ($22,000).
II. BACKGROUND
·
2. On December 5, 2000, Agents of the Commission's Kansas
City office, inspected broadcast radio stations KYOO (AM),
Bolivar, Missouri and KYOO-FM, Half-Way, Missouri. The agents
observed several violations including:
A. Failure to maintain station logs/records which
included failure to log inoperable
metering/equipment, failure to log tower light
outages, and failure to log reasons why
EAS tests were not being received.
B. Failure to maintain operable EAS equipment. The
EAS encoding/decoding equipment
was inoperable at time of inspection. There
were no entries in the station logs
documenting when the EAS equipment became
inoperable. It had been in excess
of 68 days since the last EAS test had been
received.
C. Failure to monitor and control the KYOO
transmitter. No operator had taken any
transmitter readings for over one month prior to
the inspection. The readings taken
over one month earlier indicated overpower
operation for at least 68 days leading up to
and including the day of inspection. The licensee
stated that they had automatic
monitoring devices, but the warning and shutdown
features of these devices had been
disabled. The AM base current metering was out of
calibration.
D. Failure to maintain good visibility of the KYOO
antenna structure. The structure did
not provide good visibility to aircraft due to the
rust on this tower and the extremely
faded condition of the existing paint.
3. On December 8, 2000, the Kansas City office issued a
Notice of Violation (``NOV'') to KYOO Communications for the
violations detected on December 5, 2000. On January 5, 2001, Mr.
Stephen Paris, KYOO Communications, submitted a reply to the NOV.
III. DISCUSSION
4. Section 11.35(b) states that ``If the EAS Encoder or
EAS Decoder becomes defective the broadcast station may operate
without the defective equipment pending its repair or replacement
for a period not in excess of 60 days without further FCC
authority. Entries shall be made in the station log showing the
date and time the equipment was removed and restored to
service.''2 At the time of inspection the EAS Encoder/Decoder was
inoperable according to station manager/chief operator/part
owner, Mr. Stephen Paris. Mr. Paris stated that he had tried to
send a test a couple weeks earlier and that he noticed at that
time that the EAS unit was not operating properly which prevented
him from sending a test. A search of the station logs found no
logged entries documenting the inoperable condition of the EAS
equipment. Mr. Paris admitted he had not logged the outage. The
station logs further indicated that no EAS test had been logged
as received by these stations. The logs dated back to September
28, 2000, which was 68 days prior to the inspection. No station
logs were available for the period prior to September 28, 2000.
Mr. Paris stated that he could not recall the last time an EAS
test was received. Mr. Paris stated that the logs prior to
September 28, 2000 had disappeared and that this disappearance
coincided with the dismissal of an employee on or about October
10, 2000. The station logs did not contain any reasons why the
EAS tests had not been received and Mr. Paris did not know why
tests were not being received.
5. 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.''3 At the
time of inspection the KYOO antenna structure had an overall dark
color as viewed at one quarter mile distance. This structure was
badly rusted and did not have alternating bands of aviation
orange and white paint due to the severely deteriorated condition
of the paint that had previously been on this structure. The
structure is located at the latitude-longitude coordinates of
N37-37-16, W093-24-07 and has been issued registration number
1007720. The listed registered owner of the tower according to
FCC records at the time of inspection was a Mr. Melvin Pulley dba
KYOO Broadcasting Company, the previous owner of KYOO. Mr. Paris
stated that the structure was purchased along with KYOO and that
the structure is owned by KYOO Communications, the licensee of
KYOO. In response to the NOV, Mr. Paris stated that an FCC Form
854 had been filed with the Commission to ``correct'' the name of
the registered owner from Mel Pulley dba KYOO Broadcasting to
KYOO Communications. The reply from Mr. Paris further stated
that ``we had planned to paint the tower during the summer of
2000 but were unable to do so for financial reasons''. Included
with the reply was a written agreement, dated December 27, 2000,
from Jtronics Corporation, Buffalo, Missouri, to paint the KYOO
antenna for an estimated cost of $1,200.00 with work scheduled
the third week in March.
6. Section 73.1350(c)(1) states that ``The licensee must
establish monitoring procedures and schedules for the station and
the indicating instruments employed must comply with §73.1215.
Monitoring procedures and schedules must enable the licensee to
determine compliance with §73.1560 regarding operating power
and AM station mode of operation, §73.1570 regarding modulation
levels...''4 At the time of inspection the licensee had not
established any schedules for monitoring or calibration of
required station equipment. Mr. Paris stated that the Sine
Systems remote control system would call him by telephone if an
out-of-tolerance condition occurred. However, at the time of
inspection the AM base current indicated an out-of-tolerance
condition of excessive power, reading 3.886 amps (125% of
authorized power). The licensed base current for KYOO is 3.47
amps. Section 73.1560(a) requires AM stations to maintain power
between 90-105% of that authorized. The AM base current meter at
the base of the KYOO antenna was inoperable at the time of
inspection, however, Mr. Paris stated that the remote AM base
current metering was providing accurate indications of the base
current. The remote system had not called Mr. Paris and Mr.
Paris did not know why the system had not called or shut down the
transmitter due to the out-of-tolerance AM base current. The
agents observed that during the period of September 28, 2000
through November 4, 2000, station operators, including Mr. Paris,
had logged AM base current readings for KYOO that varied between
3.818 and 4.082 amps (121-138% of authorized power). These logs
contained no entries after November 4, 2000. The period of
September 28, 2000 to the day of inspection includes 68 days. In
response to the NOV, Mr. Paris submitted statements from his
engineer, Shawn Baker, saying the remote KYOO AM base current
metering was checked on December 18, 2000 (13 days after the
inspection) at which time Mr. Baker found the metering was
grossly out of calibration. Mr. Baker estimated that KYOO was
operating at 98% of authorized power on the day of inspection.
Mr. Baker further stated that the automatic call out and shut
down features were now enabled.
7. Section 73.1800(a) states that ``The licensee of each
station must maintain a station log as required by §73.1820.
This log shall be kept by station employees competent to do so,
having actual knowledge of the facts required. All entries
whether required or not by the provisions of this part, must
accurately reflect the station operation.''5 At the time of
inspection the licensee was not maintaining station logs as
required. Station manager and designated chief operator, Mr.
Stephen Paris, stated that he did not know what logging was
required. The AM base current meter for KYOO and the EAS
Encoder/Decoder were both inoperable and this condition was known
to Mr. Paris, however, there were no logged entries documenting
these outages. During the period of September 28, 2000 through
the day of inspection on December 5, 2000, there were no entries
documenting receipt of an EAS test and no reasons why EAS tests
were not received. During this same 9-week period the station
initiated EAS tests on only three occasions with no explanation
why tests were not sent during the other 6 weeks in this period.
Logs were not available for the period prior to September 28,
2000. Mr. Paris, as chief operator, was not conducting a review
of required station logs and no operator had reviewed the logs
for required entries. In response to the NOV, Mr. Paris stated
that ``we failed to maintain the logs properly''.
8. Based on the evidence before us, we find that KYOO
Communications willfully6 and/or repeatedly violated Sections
11.35(b), 17.50, 73.1350(c)(1) and 73.1800(a) of the Rules.
Pursuant to The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Forfeiture Policy Statement''), the base
forfeiture amount for failure to maintain required records and
logs [§73.1800(a)] is $1,000, the base forfeiture amount for
failure to conduct required monitoring of the operational
parameters and calibrate the remote AM base current metering
[§73.1350(c)(1)] is $3,000, the base forfeiture amount for
failure to maintain operational EAS equipment [§11.35(b)] is
$8,000, and the base forfeiture amount for failure to clean and
repaint the KYOO antenna structure as often as necessary to
maintain good visibility to aircraft [§17.50] is $10,000. 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 Communications Act of 1934 (``Act''), as amended, 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.7 Taking these factors
into account we note that many of the violations are continuous
in nature. On the few instance when the transmitters were
checked the manager/chief operator continued to log out of
tolerance AM base current readings, yet took no action to
discontinue the apparent overpower operation or to check the
calibration of the remote metering while operating in this manner
that continued for at least 68 days. With regards to the EAS,
the licensee took no action to determine why EAS tests were not
being received over a prolonged period or why tests were not
being sent weekly. When the EAS unit was found to be incapable
of sending a test the manager/chief operator failed to log the
unit out of service or initiate prompt corrective action. With
regards to the KYOO tower painting, the licensee knew the
structure needed painting, but refused to take the necessary
steps to correct the violation citing financial reasons.
However, the estimated cost of $1,200 to paint this tower does
not appear prohibitive nor does it show cause for the licensee to
allow an ongoing safety violation with such potential harm to go
uncorrected. These violations combined with the additional
violations noted in the NOV, show an overall lack of effort on
the part of this licensee to comply with the Rules . Normally
such continuous, egregious and harmful violations would warrant
an upward adjustment of the base forfeiture amounts. However,
due to the already large base forfeiture amount no upward
adjustment will be applied to this action. No downward
adjustment criteria have been identified to warrant a lowering of
the base forfeiture amount. After applying the Forfeiture Policy
Statement and statutory factors to the instant case, we believe a
$22,000 forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80 of the
Rules,9 KYOO Communications, is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of twenty two thousand
dollars ($22,000) for violating Sections 11.35(b), 17.50,
73.1350(c)(1) and 73.1800(a) of the Rules, 47 C.F.R. §§ 11.35(b),
17.50, 73.1350(c)(1) and 73.1800(a).
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules,10 within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, KYOO Communications, SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
11. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995 or 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 should note the NAL/Acct. No. 20013256-
001.
12. The response, if any, must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau - TPSD,
NAL/Acct. No. 20013256-001, and must include the NAL/Acct. No.
20013256-001.
13. 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; 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.
14. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.11
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to KYOO Communications, 304 East Jackson,
Bolivar, Missouri 65613.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City Office
_________________________
1 47 C.F.R. §§11.35 (b), 17.50, 73.1350(c)(1) and 73.1800(a)
2 47 C.F.R. §11.35(b)
3 47 C.F.R. §17.50
4 47 C.F.R. §73.1350(c)(1)
5 47 C.F.R. §73.1800(a)
6 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies 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).
7 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement,
12 FCC Rcd at 17100-01
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 1.80.
11 See 47 C.F.R. § 1.1914.