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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-596
)
American Family Association ) NAL/Acct.No. 200232560027
)
Licensee of Radio Station KAUF ) FRN 0005-0259-11
in Kennett, Missouri )
Tupelo, Mississippi
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 18, 2002
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find American Family Association
(``American''), licensee of radio station KAUF, Kennett,
Missouri, apparently liable for a forfeiture in the amount
of nine thousand dollars ($9,000) for willful violation of
Sections 11.35(a), 73.3527(e)(4), 73.3527(e)(7) and
73.3527(e)(8) of the Commission's Rules (``Rules'').1
Specifically, we find American apparently liable for failure
to maintain operational Emergency Alert System (``EAS'')
equipment, and failure to maintain all required items in the
station's public inspection file.
II. BACKGROUND
2. On July 17, 2002, an agent from the Commission's
Kansas City Field Office inspected FM station KAUF located
in Kennett, Missouri. The agent inspected the station's EAS
equipment and observed that both EAS receivers were turned
off and that, when turned on, both receivers were tuned to
the frequency 87.5 MHz. As a result, there was no
monitoring of the two required EAS sources. The station
could not produce the EAS Operating Handbook, and the
station's log showed no record of EAS equipment repairs, and
no logging of EAS tests since the year 2000. Additionally,
the latest ownership report, a copy of The Public and
Broadcasting, and current issues/programs lists were not
available in the public file.
III. DISCUSSION
3. Section 11.35(a) of the Rules requires that
broadcast stations install EAS equipment such that
monitoring and transmitting functions are available during
the times the stations are in operation. As part of the EAS
monitoring requirement, Section 11.52 of the Rules2 requires
broadcast stations to monitor two EAS sources as specified
in the State EAS Plan and FCC Mapbook. At the inspection on
July 17, 2002, station KAUF's two EAS receivers were turned
off and, when turned on, were tuned to default settings
rendering them unable to monitor the required EAS sources.
Section 11.35(b) of the Rules3 provides that should any EAS
equipment become defective, that entries be made in the
station's log indicating the date and time the equipment was
removed and restored to service. KAUF's station log had no
entries concerning EAS equipment malfunctions.
4. Section 73.3527(e)(4) of the Rules requires that a
copy of the most recent, complete ownership report filed
with the FCC for the station, any statements filed with the
FCC certifying that the current report is accurate, and all
related materials be available in the public file. On July
17, 2002, there were no copies of any ownership reports
available in the public file.
5. Section 73.3527(e)(7) of the Rules requires a copy
of The Public and Broadcasting be
available in the public file. The manual was not available
at the time of inspection on July 17, 2002.
6. Section 73.3527(e)(8) of the Rules requires a list
of programs that have provided the station's most
significant treatment of community issues during the
preceding three month period. The list shall include a
brief narrative describing what issues were giving
significant treatment and the programming that provided this
treatment. The description of the programs shall include,
but shall not be limited to, the time, date, duration and
title of each program in which the issue was treated. The
lists shall be retained in the public inspection file until
final action has been taken on the station's next renewal
application. The lists for the year 2001 and the first
quarter of 2002 were not available for inspection on July
17, 2002.
7. Based on the evidence before us, we find that on
July 17, 2002, American willfully4 violated Sections
11.35(a), 73.3527(e)(4), 73.3527(e)(7) and 73.3527(e)(8) of
the Rules by failing to maintain operational EAS equipment,
and by failing to maintain a current ownership report, The
Public and Broadcasting, and issues-programs lists in the
station's public inspection file.
8. Pursuant to Section 1.80(b)(4) of the Rules, the
base forfeiture amount is $8,000 for EAS equipment not being
operational, and $10,000 for violation of the public file
rules.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 Because
KAUF's EAS equipment was installed, albeit turned off such
that it was incapable of receiving EAS alerts, a downward
adjustment of the base forfeiture amount for this violation
from $8,000 to $4,000 is warranted. Because KAUF's public
file contained a portion of the required items, a downward
adjustment of the base forfeiture amount for this violation
from $10,000 to $5,000 is warranted. Considering the entire
record and applying the statutory factors listed above, this
case warrants a $9,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,7 and Sections 0.111, 0.311 and
1.80 of the Rules,8 American Family Association is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of nine thousand dollars ($9,000) for willful
violation of Sections 11.35(a), 73.3527(e)(4), 73.3527(e)(7)
and 73.3527(e)(8) of the Rules, by failing to maintain
operational EAS equipment, and by failing to maintain a
current ownership report, The Public and Broadcasting and
issues-programs lists in the station's public inspection
file.
10. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, American Family Association 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 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.
12. 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.
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 (``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.
14. Requests for payment of the full amount of this NAL
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
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by regular and Certified
Mail Return Receipt Requested to American Family Association
at P. O. Drawer 2440, Tupelo, Mississippi 38803.
FEDERAL COMMUNICATIONS
COMMISSION
Robert C. McKinney
District Director, Kansas City
Office
Enforcement Bureau
_________________________
1 47 C.F.R §§ 11.35(a), 73.3527(e)(4), 73.3527(e)(7) and
73.3527(e)(8).
2 47 C.F.R. § 11.52.
3 47 C.F.R. § 11.35(b).
4 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).
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.