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                           Before the
                     Washington, D.C. 20554

In the Matter of                   )
North American Broadcasting        )     File No. EB-02-SD-197
Company, Inc.                      )     NAL/Acct. No. 
Licensee of AM station KFNX        )     200232940007
Cave Creek, Arizona                )     FRN: 0007-2982-68
2001 N. 3rd Street, Suite 102      )
Phoenix, AZ  85004  


                                       Released:  August 30, 2002
By the Enforcement Bureau: San Diego Office

                        I.  INTRODUCTION

1.   In this Notice of Apparent Liability for Forfeiture ("NAL"), 
  we  find  the  North  American  Broadcasting  Company,   Inc.,1 
  licensee of  radio station  KFNX(AM) Cave  Creek, Arizona,  has 
  apparently  willfully  violated Section  73.1560(a)(1)  of  the 
  Federal   Communications  Commission's   (``FCC'')  Rules   and 
  Regulations  (``Rules'')2  by  failing  to  reduce  transmitter 
  output power  in accordance with  their station  authorization.  
  We conclude, pursuant  to Section 503(b) of the  Communications 
  Act  of  1934,  as  amended  (``Act''),3  that  North  American 
  Broadcasting  Company,  Inc.,   is  apparently  liable  for   a 
  forfeiture in the amount of four thousand dollars ($4,000).

                         II.  BACKGROUND

2.   Station KFNX is authorized to operate on frequency 1100  kHz 
  with  a  daytime operating  power  of  50 kW  and  a  nighttime 
  operating power of 1  kW.  The station is required to  maintain 
  a  directional  broadcast  pattern,  with  the  shape  of   the 
  broadcast  pattern identical  for  both daytime  and  nighttime 
  operations.  As  specified in the  station authorization,  KFNX 
  must reduce operating power to 1 kW at local sunset (7:45  p.m. 
  MST for  the month of June) and  may resume an operating  power 
  of  50 kW at  local sunrise  (5:15 a.m.  MST for  the month  of 

3.   On June  22, 2002  from approximately  6:45 p.m.  MST  until 
  10:30 p.m. MST, and on June 23, 2002 in the mid-morning and  in 
  the evening from  approximately 7:30 p.m. MST until 10:30  p.m. 
  MST, Agents  from the  San Diego District  Office conducted  AM 
  broadcast  field  strength  measurements  of  KFNX  at  various 
  locations in  the Phoenix,  Arizona area.   The measured  field 
  strength at  a distance of 50  kilometers from the Cave  Creek, 
  Arizona  transmitter site  was consistent  with what  would  be 
  expected for  a 50 kW  AM broadcast station  on 1100 kHz.   The 
  Agents found  that several  hours beyond local  sunset time  of 
  7:45 p.m.  MST on the evenings  of June 22  and June 23,  2002, 
  the field  strength level  of station KFNX  never changed  from 
  its  daytime measurement.   Radio station  KFNX was  apparently 
  exceeding  its authorized  nighttime power  level of  1 kW  and 
  continued to operate at night with a power level of 50 kW.

4.   On the  morning on  June 24,  2002, the  Agents visited  the 
  studio of radio station KFNX at 2001 N. 3rd Street, Suite  102, 
  Phoenix, Arizona  to discuss  the station's  failure to  reduce 
  operating  power at  night  as required  by  the terms  of  the 
  station's  authorization.   Tests of  the  transmitter  control 
  circuits  were conducted.   The station  was operating  at  its 
  authorized daytime  power of  50 kW.   Station personnel  could 
  readily change  the operating power  from daytime to  nighttime 
  and  back.    The  station  did  not   employ  any  device   to 
  automatically change  operating power at  nighttime and  relied 
  upon  the  station's  duty  operator  to  make  the   necessary 
  adjustments at  the proper  times (local  sunset and  sunrise).  
  The  station did  not  employ  any procedures  to  remind  duty 
  operators about when to make the necessary power changes or  to 
  document when those changes occurred in a log or check sheet.  

                        III.  DISCUSSION

5.   Section 503(b)  of  the Act  provides  that any  person  who 
  willfully  fails to  comply substantially  with the  terms  and 
  conditions of any license,  or 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.4 

6.   A broadcast  station licensee  is responsible  for  assuring 
  that  at  all  times  the  station  operates  within  tolerance 
  specified by applicable technical rules contained in this  part 
  and   in   accordance   with   the   terms   of   the   station 
  authorization.5  Section  73.1560(a) of the  Rules states  that 
  "[t]he antenna  input power of an  AM station as determined  by 
  the procedures specified in Section 73.51 of the Rules must  be 
  maintained as near as is practicable to the authorized  antenna 
  input power and may not be less than 90% nor more than 105%  of 
  the authorized  power . . . whenever  the transmitter of an  AM 
  station cannot be  placed into the specified operating mode  at 
  the   time   required,  transmissions   must   be   immediately 
  terminated . . . ."  In this case, North American  Broadcasting 
  Company,  Inc.,  operated  station  KFNX  at  fifty  times  its 
  authorized power level at nighttime (50 kW versus 1 kW).

7.   Based on the evidence before us, we find that North American 
  Broadcasting   Company,   Inc,   willfully   violated   Section 
  73.1560(a)  of the  Rules,  by exceeding  authorized  nighttime 
  power levels  and failing  to maintain operating  power at  the 
  level  and  within the  tolerances  specified  in  its  station 
  authorization and by  the Rules.  Pursuant to The  Commission's 
  Forfeiture Policy  Statement and Amendment  of Section 1.80  of 
  the   Rules   to   Incorporate   the   Forfeiture   Guidelines, 
  (``Forfeiture Policy Statement''),6 the base forfeiture  amount 
  for  exceeding  power  limits  is  $4,000.   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,  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   Applying the  Forfeiture Policy  Statement and  the 
  statutory factors  to the instant case,  we find no  compelling 
  evidence  to support  any adjustments  to the  base  forfeiture 
  amount.  Therefore,  a forfeiture  in the amount  of $4,000  is 

                      IV.  ORDERING CLAUSES

8.   Accordingly, IT IS ORDERED THAT, pursuant to Section  503(b) 
  of  the  Act,  and  Sections  0.111,  0.311  and  1.80  of  the 
  Commission's Rules, North American Broadcasting Company,  Inc., 
  is  hereby   NOTIFIED  of  their   APPARENT  LIABILITY  FOR   A 
  FORFEITURE in the amount of four thousand dollars ($4,000)  for 
  violating Section 73.1560(a) of the Rules.8

9.   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,  North American  Broadcasting  Company, 
  Inc., SHALL PAY the  full amount of the proposed forfeiture  or 
  SHALL   FILE  a   written   statement  seeking   reduction   or 
  cancellation of the proposed forfeiture.

10.  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)  referenced 
  above and also must note NAL/Account No. 200232940007.

11.  The  response,   if  any,   must   be  mailed   to   Federal 
  Communications  Commission, Enforcement  Bureau, Technical  and 
  Public Safety Division,  445 12th Street, S.W., Washington,  DC 
  20554 and MUST INCLUDE THE NAL/Acct. No. 200232940007. 

12.  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.

13.  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 Operation  Group, 445  12th 
  Street, S.W., Washington, D.C. 20554.9

14.  IT IS  FURTHER ORDERED  THAT  the licensee,  North  American 
  Broadcasting Company, Inc., must demonstrate that they are  now 
  operating in  compliance with daytime  and nighttime  operating 
  parameters.   The licensee  shall  maintain as  part  of  their 
  station  records,  power   measurements  made  at  three   hour 
  intervals.10  These  logs shall be made  by the station's  duty 
  operator and  reviewed daily by  the station's chief  operator.  
  The logs shall contain  the signature of the person making  the 
  measurement, the  date and local  time, the measurement  values 
  made  in watts  and notations  of  any discrepancies  found  or 
  corrections made.  The  chief operator shall sign and date  the 
  logs after  his or her  review.  The logs  shall be  maintained 
  until  the  licensee  demonstrates  to  the  FCC's  Enforcement 
  Bureau District  Office satisfaction  that the  licensee is  in 
  compliance.   The  log of  the  previous  month's  measurements 
  shall be forwarded by  the 5th day of the new month to the  FCC 
  office at the following address:

                          FCC San Diego
                   4542 Ruffner St., Suite 370
                  San Diego, California  92111

  shall be sent  by certified mail, return receipt requested,  to 
  North American Broadcasting Company, Inc., 2001 N. 3rd  Street, 
  Suite 102, Phoenix, AZ  85004.


                         William R. Zears Jr.
                         District Director - San Diego Office

1 On August 13, 2002, the Commission granted the application of 
North American Broadcasting Company, Inc., to assign the license 
for station KFNX to North American Broadcasting Company, Inc., 
Debtor in Possession.  According to the assignment application, 
BAL-20020725AAL, no change in ownership occurred, only a change 
in status of the company.  The filing of bankruptcy does not 
preclude the Commission from issuing an order imposing a 
forfeiture for violating the Rules.  See Coleman Enterprises, 
Inc.,  16 FCC Rcd 24385, 24389 n. 28 (2000); Friendship Cable of 
Texas, Inc., Forfeiture Order, DA 02-1086 (May 13, 2002, Enf. 
2 47 C.F.R.  73.1560(a).
3 47 U.S.C. 503(b).
4 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to Section 503(b) of the Act, provide 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.  73.1350 and 74.1400.
6 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).
7 47 U.S.C.  503(b)(2)(D).
8 47 U.S.C.  503(b); 47 C.F.R.  0.111, 0.311, 1.80, 
9 47 C.F.R.  1.1914.
10 Pursuant to 47  C.F.R.  0.314(j) and  73.1835 of the  Rules, 
the District Directors  of the FCC's  Enforcement Bureau  Offices 
may require a  broadcast station licensee  to keep operating  and 
maintenance records as  necessary to resolve  rule violations  or 
deficient technical operation.