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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Pilgrim Communications, Inc. ) File Number: EB-01-DV-044
Licensee of Station KSKE(AM) ) NAL/Acct. No.
Vail, Colorado 200332800004
Facility ID # 16272 ) FRN 0006-1472-19
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the District Director, Denver Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find Pilgrim Communications, Inc. ("Pilgrim"),
licensee of AM radio station KSKE in Vail, Colorado, apparently
liable for a forfeiture in the amount of eleven thousand dollars
($11,000) for willful and repeated violation of Sections
73.1125(a), 73.1560(a) and 73.1745(a) of the Commission's Rules
(``Rules'').1 Specifically, we find Pilgrim apparently liable
for failing to maintain the requisite main studio presence at
station KSKE, and failing to maintain power levels between 90%
and 105% of authorized power levels and exceeding the authorized
nighttime power level at station KSKE.
2. During routine station inspections in the spring and
summer of 2001, agents from the Commission's Denver, Colorado,
Field Office (``Denver Office'') inspected several AM radio
stations in Colorado owned and operated by Pilgrim. Several
Notices of Violation (``NOVs'') were issued to Pilgrim for
various rule violations discovered at the stations. In this NAL,
we address the most serious violations discovered at station
3. Station KSKE is authorized to operate with 5,000 watts
of power during daytime hours and 217 watts of power during
nighttime hours, on frequency 610 kHz. According to the terms of
KSKE's license, the average hours of sunset to sunrise for May
2001, were 8:15 p.m. to 6:00 a.m. Mountain Daylight Time
(``MDT''). On May 9, 2001, an agent from the Denver Office
monitored the on-air signal of radio station KSKE, and
specifically, from 7:30 p.m. to 9:00 p.m. MDT, the agent took
numerous field strength measurements at locations near the KSKE
transmitter in Minturn Recreation Park. According to the station
authorization, KSKE should have switched from daytime to
nighttime power at 8:15 p.m. The agent observed no power level
change as required by KSKE's station authorization prior to 9:00
p.m. Subsequent on-air field strength measurements conducted by
the agent on May 10, 2001, confirmed that KSKE was operating at
the same field strength observed previously on May 9.
4. On May 10, 2001, the agent attempted an inspection of
the KSKE main studio located at 0210 Edwards Village Blvd., Unit
B-206, Edwards, Colorado. Upon arrival, the agent found what
appeared to be storage space. There was no indication that there
was a studio at the location. Employees of an adjacent business
were not aware of a KSKE studio nearby. The telephone number in
the phone book listed for KSKE was disconnected and no
alternative phone number was given by directory assistance.
During a May 10, 2001, telephone conversation with Pilgrim
corporate staff in Indiana, the agent was informed that Pilgrim
had no personnel in the Vail area for KSKE. Pilgrim corporate
staff advised the agent that Pilgrim staff at station KLMO in
Longmont, Colorado, approximately 160 miles away from the
location where KSKE's main studio was authorized to be, could
provide assistance to the agent and control the KSKE transmitter
remotely. The fact that KSKE was operating over its authorized
nighttime power level was confirmed when the agent, not noting
any change in measured field strength from May 9 to May 10, asked
the KLMO operator in Longmont to remotely reduce the KSKE
transmitter to its authorized nighttime power level, and the
operator did so.
5. On July 30, 2001, the Denver Office issued a NOV to
Pilgrim for violations at station KSKE, among them, failing to
maintain operations as specified in the station license (Section
73.1745(a)) and failing to maintain a main studio (Section
73.1125). Pilgrim stated in the August 17, 2001, reply to the
NOV, that there had been an error in programming the remote power
control system, and upon notification by the FCC agent, the
programming of the remote power control system was corrected.
Pilgrim also stated that a studio was maintained in Edwards,
Colorado, that Pilgrim does have an operating telephone number
there but Pilgrim did not know why the phone company did not
provide the number to the agent, and that Pilgrim has one
employee working at KSKE. Although Pilgrim's response indicated
that one person was working at the KSKE main studio, that person
was not present on the date of the inspection.
6. Section 503(b) of the Communications Act of 1934, as
amended, (``Act''), provides that any person who willfully or
repeatedly fails to comply substantially with the terms and
conditions of any license, or willfully or repeatedly 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.2 The term "willful" as used in
Section 503(b) has been interpreted to mean simply that the acts
or omissions are committed knowingly.3 The term ``repeated''
means that the violation occurred on more than one day.4
7. Section 73.1560(a) of the Rules provides that AM
stations must be maintained as near as practicable to the
authorized antenna input power and may not be less than 90% nor
more than 105% of the authorized power. Section 73.1745(a) of
the Rules states that no broadcast station shall operate at
times, or with modes or power, other than those specified and
made a part of the license unless otherwise permitted by Part 73
of the Rules. On May 9, 2001, Pilgrim station KSKE did not
reduce nighttime power as required by the station authorization
in violation of Section 73.1560(a) and 73.1745(a) of the Rules.
8. Section 73.1125(a) of the Rules generally requires
broadcast stations to maintain a main studio at one of the
following locations: (i) within the station's community of
license; (ii) at any location within the principal community
contour of any AM, FM, TV broadcast station licensed to the
station's community of license; or (iii) within twenty-five miles
from the reference coordinates of the center of its community of
license. The station's main studio must serve the needs and
interests of the residents of the station's community of license.
To fulfill this function, a station must, among other things,
maintain a meaningful management and staff presence at its main
studio.5 The Commission has defined a minimally acceptable
"meaningful presence" as full-time managerial and full-time staff
personnel.6 In addition, there must be "management and staff
presence" on a full-time basis during normal business hours to be
considered "meaningful." Although management personnel need not
be "chained to their desks" during normal business hours, they
must "report to work at the main studio on a daily basis, spend a
substantial amount of time there and ... use the studio as a
'home base.'"7 On May 9, 2001, Pilgrim had no management or
staff presence during normal business hours at the main studios
of station KSKE, in violation of Section 73.1125 of the Rules.
9. Based on the evidence before us, we find that Pilgrim
apparently exceeded the authorized nighttime power level on May
9, 2001, in willful violation of Section 73.1560(a) and
73.1745(a) of the Rules and failed to maintain the required
management and staff presence at KSKE's main studio, in willful
and repeated violation of Section 73.1125(a) of the Rules.
10. 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"),8 and Section 1.80 of the Rules,9 the base forfeiture
amount is $4,000 for exceeding power limits at nighttime in
violation of Sections 73.1560(a) and 73.1745(a) of the Rules;10
and $7,000 for failing to maintain the required main studio
presence in violation of Section 73.1125(a) of the Rules.11 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, circumstance, extent and
gravity of the violation(s), and with respect to the violator,
the degree of culpability, and history of prior offenses, ability
to pay, and other such matters as justice may require.12
Applying the Forfeiture Policy Statement and the statutory
factors to the instant case, a $11,000 forfeiture is warranted.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Section 1.80 of the Rules, Pilgrim
Communications, Inc., is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of eleven thousand
dollars ($11,000) for willfully and repeatedly violating Sections
73.1125(a), 73.1560(a) and 73.1745(a) of the Rules at station
12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NAL, Pilgrim Communications, Inc., SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
13. Payment 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) and the NAL/Acct. No. referenced in the
caption. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
14. The response, if any, must be mailed to the Office of
the Secretary, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Technical and Public Safety Division and must include NAL/Acct.
No. referenced in the caption.
15. 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
16. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Federal Communications
Commission, Enforcement Bureau, Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (``OCBO'') set
forth in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by regular mail and certified
mail number 7001 0320 0002 9702 9885, return receipt requested,
to Pilgrim Communications, Inc., 54 Monument Circle, Suite 250,
Indianapolis, Indiana 46204.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
Enclosure: Attachment A
1 47 C.F.R. § 73.1125(a), 73.1560(a) and 73.1745(a).
2 47 U.S.C. § 503(b).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
4 Section 312(f)(2), which also applies to Section 503(b),
provides: "[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 See Main Studio and Program Origination Rules, 3 FCC Rcd
5024, 5026 (1988).
6 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 and n.2 (1992), clarified, 7 FCC Rcd 6800 (1992).
7 Jones Eastern of the Outer Banks, Inc., 7 FCC Rcd 6800,
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
9 47 C.F.R. § 1.80.
10 See, e.g., Buchanan Broadcasting Company, Inc., 15 FCC
Rcd 24363 (2000) (upholding a $4,000 forfeiture for exceeding
nighttime power limits).
11 See, e.g., American Broadcasting Educational Foundation,
15 FCC Rcd 8630, 8630 (Enf. Bur. 2000) (imposing a $7,000
forfeiture for violation of the main studio rules).
12 47 U.S.C. § 503(b)(2)(D).
13 See 47 C.F.R. § 1.1914.