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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Barnstable Broadcasting, Inc. ) File Number EB-01-KC-678
dba Two Rivers Broadcasting ) NAL/Acct.No.20013256-003
Limited Partnership )
FM Broadcast Station KGGO )
FM Broadcast Station KJJY )
Antenna Registration #1028734 )
Newton, MA
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 3, 2001
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that Barnstable Broadcasting, Inc. dba Two Rivers
Broadcasting Limited Partnership apparently violated Section
11.35(a), and 17.51(b) of the Commission's Rules,1 by failing to
determine and log the reasons why EAS tests were not being
received on both KGGO and KJJY, and by failing to comply with
proscribed lighting on the KGGO tower bearing antenna
registration #1028734. We conclude that Barnstable Broadcasting,
Inc. dba Two Rivers Broadcasting Limited Partnership is
apparently liable for a forfeiture in the amount of sixteen
thousand dollars ($16,000).
II. BACKGROUND
2. On March 28, 2001, the FCC issued Two Rivers
Broadcasting Limited Partnership (``Two Rivers'') a Notice of
Violation after a March 20, 2001, inspection of broadcast radio
station KRKQ(FM), Boone, IA, found the licensee was not
determining or logging the reasons why tests of the Emergency
Alert System (EAS) were not being received.
3. On April 13, 2001, Two Rivers submitted a response to
the NOV indicating that steps had been taken to correct the
violation.
4. On May 9, 2001, the FCC received a complaint from a
citizen concerning ongoing outages of several strobe lights on an
antenna structure located near Altoona, Iowa. The complaint
indicated that the lighting had been going out one light at a
time over a two month period. That structure was determined to
be a 1046 ft tower, bearing registration number #1028734 and
utilized by radio station KGGO. The structure was owned by Two
Rivers. At approximately 3:15 PM on May 9, 2001, the FCC
telephoned station KGGO and notification was made of the outage
to Mr. Kim Jones, manager, KGGO.
5. On May 10, 2001, Mr. Jones notified the FCC, Kansas
City Office that 4 out of 12 strobe lights on the KGGO antenna
structure were out of operation. Notification to the FAA of the
outage was made on this date by station employee, Mr. Jack
O'Brien, several hours after the FCC contacted the station about
the outage.
6. On May 23, 2001, Two Rivers, acting on a verbal request
from FCC Kansas City, provided an incident report on the tower
light outage. The report stated that the auto reporting unit
began providing intermittent, inconsistent indications of the
tower lighting a few months earlier, but no visual inspection of
the tower lighting was made until May 9, 2001. In the letter,
the licensee admitted they failed to detect and expeditiously
correct the lighting, that they failed to inform the FAA of the
outage and that they failed to make proper log notations. The
reply stated that the lighting had been repaired on May 22, 2001.
On this same date Ms. Diana Ragas, Barnstable, submitted a faxed
letter to the FAA stating that the repairs had been made and
confirming a previous telephone notification made at 3:20 p.m.
this date.
7. On May 29, 2001, an FCC Agent, Enforcement Bureau,
Kansas City Office, inspected Two Rivers co-located stations KGGO
and KJJY, both with studios in Urbandale, Iowa. This inspection
determined the following:
· Both stations are assigned to monitor WHO(FM) and
WOI(FM) for EAS activations.
· No EAS activations had been received by station KGGO
from WHO(FM) during the 6 week period of April 8 - May
29, 2001. No EAS activations had been received by
station KJJY from WHO(FM) during the 3 week period of
May 8 - May 29, 2001.
· No EAS activations had been received by station KGGO
from WOI(FM) during the 3 week period of April 8 - May
10, 2001. No EAS activations had been received by
station KJJY from WOI(FM) during the 4 week period of
April 27 - May 29, 2001.
· A review of station logs for period of April 1 - May
29, 2001 found no documentation indicating the reasons
why the EAS tests were not received.
· The automatic alarm system for KGGO antenna structure
#1028734 was incapable of providing light failure
indications during period starting some time prior to
December 26, 2000 - May 22, 2001. Some or all of the
strobed lighting did not include necessary circuit
boards to provide a failure indication. No routine
visual observations were being made of the lighting
during this same period. No inspections were being
made of the lighting alarm system during this period.
· Engineering logs found at the KGGO transmitter/antenna
site indicate that on March 10, 2001, at least two
lights were observed by the station engineer as being
out. The station engineer called a tower company in
attempt to get service, but no call was placed to the
FAA to notify them of the outage according to station
management and engineering staff.
· Station logs for KGGO indicate that FAA was notified on
May 9, 2001. No time is given and no signature or
other notation was found to indicate who made the log
entry.
· Stations KGGO, KJJY and three other co-owned and co-
located stations in this group were operating under a
time marketing agreement with Wilks Broadcasting LLC.
(``Wilks'') per agreement dated March 19, 2001. At
time of inspection Two Rivers maintained a manager
responsible for accounts receivable and a receptionist.
All station operation, other than accounts receivable,
were under the direction and oversight of Wilks.
8. On June 18, 2001, FCC Kansas City issued an NOV to Two
Rivers for the violations detected during the May 29, 2001,
inspection. Violations included 47 C.F.R. §§ 11.61(a)(2),
11.35(a), 17.47(a)(1), 17.47(a)(2), 17.47(a)(3), 17.48(a),
17.49(a-d), 73.1350(c)(1), 73.1350(c)(2), 73.1800(a), 73.1820(a),
73.1820(a)(1), 73.1820(a)(1)(iii), and 73.1870(c)(3).
9. On June 6, 2001, Two Rivers submitted documentation
supporting their claim that they were the owners of antenna
structure #1028734. The structure was acquired by Two Rivers as
part of an asset exchange agreement dated March 7, 2000. Two
Rivers made application to the FCC on June 6, 2001 to have the
ownership of the structure changed to reflect their ownership.
According to Two Rivers, they had overlooked the change in
structure ownership when they acquired station KGGO.
10. On July 13, 2001, Two Rivers submitted a response to
the NOV of June 18, 2001. The response stated that as of June
21, 2001, Two Rivers had consummated the sale of stations
KGGO(FM), KJJY(AM), KBGG(AM), KHKI(FM), and KRKQ(FM) to Wilks.
With regards to the violations the reply stated the board
operators are Wilks employees who did not determine why EAS tests
were not being received and who did not make log entries
concerning the missing tests. The letter stated that the FAA was
not notified within thirty minutes of the observations and
notifications of the tower light outages because the station
staff was unaware of the rule. The reply also stated that
Barnstable Broadcasting, Inc. (``Barnstable''), is the group
owner of Two Rivers.
III. DISCUSSION
11. 47 U.S.C. § 11.35(a): 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 are in operation.
Additionally, stations must determine the cause of any failure to
receive the required tests or activations. Appropriate entries
must be made in the broadcast station log indicating reasons why
tests were not received.
12. Based on the evidence before us, we find that during
the period of April 8 - May 29, 2001, Barnstable Broadcasting,
Inc. dba Two Rivers Broadcasting Limited Partnership repeatedly2
and willfully3 violated Section 11.35(a) of the rules by failing
to determine and log the reasons why EAS tests were not being
received from each of its two assigned monitoring sources.
13. 47 U.S.C. § 17.51(b): All high intensity and medium
intensity obstruction lighting shall be exhibited continuously
unless otherwise specified.
14. Based on the evidence before us, we find that during
the period of March 10 - May 9, 2001, Barnstable Broadcasting,
Inc. dba Two Rivers Broadcasting Limited Partnership repeatedly
and willfully violated Section 17.51(b) of the rules by failing
to maintain all lighting in operational condition and failing to
notify the Federal Aviation Administration of any light outages.
15. Pursuant to Section 1.80(b)(4) of the Commission's
Rules, the base forfeiture amount for the violation(s) cited in
this notice is $10,000 for failure to maintain prescribed
obstruction lighting, and $1,000 for failure to determine and log
the reasons why EAS tests were not being received.4 Section
503(b)(2)(D) of the 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.''5
Taking these factors into account we note that the licensee has a
history of violations as noted in the NOV issued to Two Rivers on
March 28, 2001. Furthermore both violations continued for several
weeks. Based on the safety nature of light outages and the
potential harm to aviators caused by the licensee's failure to
notify the FAA of the outages and based on the adjustment
criteria listed above, the forfeiture amount for that violation
warrants an increase to $15,000. Considering the entire record
and applying the statutory factors listed above, this case
warrants a $16,000 forfeiture.
IV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,6 and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules,7
Barnstable Broadcasting, Inc. dba Two Rivers Broadcasting Limited
Partnership is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of sixteen thousand dollars ($16,000)
for willful and repeated violation of Sections 11.35(a) and
17.51(b) of the Commissions Rules.8
17. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules9, within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, Barnstable Broadcasting,
Inc. dba Two Rivers Broadcasting Limited Partnership SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
18. 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 should note the
NAL/Acct. No. referenced in the letterhead above.
19. 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. referenced in the letterhead above.
20. 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.
21. 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. 20554.10
22. IT IS
FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY
shall be sent by Certified Mail Return Receipt Requested to
Barnstable Broadcasting, Inc. dba Two Rivers Broadcasting Limited
Partnership at 2 Newton Executive Park, Newton, MA 02162.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director, Enforcement
Bureau
Kansas City Office
_________________________
1 47 C.F.R §§ 11.35(a), 17.47(a) and 17.48(a).
2 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.''
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 47 C.F.R. § 1.80(b)(4)
5 47 U.S.C. § 503 (b)(2)(D)
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 47 U.S.C. §§ 11.35(a), 17.47(a), 17.48(a)
9 47 C.F.R. § 1.80.
10 See 47 C.F.R. § 1.1914.