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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
FTP Corporation ) File No. EB-02-ST-307
Licensee of Radio Station KNTB ) NAL/Acct. No.
200332980004
Lakewood, Washington ) FRN 0003764974
Facility ID No.:26892 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 30, 2003
By the District Director, Seattle Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent
Liability for Forfeiture ("NAL"), we find that FTP Corporation
(``FTP''), licensee of AM radio broadcast station KNTB in
Lakewood, Washington, has apparently repeatedly violated Section
73.1745 of the Commission's Rules (``Rules'')1 by failing to
operate station KNTB in accordance with the station's authorized
power and hours of operation. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended,2 that FTP
is apparently liable for forfeiture in the amount of four
thousand dollars ($4,000).
II. BACKGROUND
2. FTP is authorized to operate station KNTB on 1480 kHz
with 1000 watts from 6:00 a.m. until sunset.3 According to the
terms of KNTB's license, the average hour of sunset in the month
of November is 4:30 p.m. In 1998, FTP submitted a proposal to
operate station KNTB from sunset to sunrise with 111 watts. The
FCC's records do not indicate if FTP ever implemented the
proposal. Accordingly, on October 30, 2002, the Seattle Office
received a request from the FCC Media Bureau to ascertain
whether AM radio station KNTB was operating at night with 111
watts.
3. On November 5, 2002, a Seattle agent monitored the
signal of KNTB near Lakewood beginning at 7:45 p.m. and
determined that the station was indeed operating at night, but
with a signal strength consistent with the station's authorized
daytime power of 1000 watts. On November 6, 2002, the Seattle
agent monitored the signal of KNTB from approximately 3:00 p.m.
until approximately 6:00 p.m. No change in field strength was
observed or measured by the agent at sunset. Indeed, the field
strength remained consistent throughout the monitoring time and
was consistent with what the agent had expected from a 1000 watt
transmitter.
4. On December 12, 2002, Seattle agents conducted an AM
broadcast inspection of radio station KNTB. The station's
public inspection file contained a copy of the current station
license showing the station only had daytime operation
authority. FTP's station manager stated that he understood the
station did have authority to operate at nighttime with reduced
power. The agent provided FTP information on how to obtain the
requisite license to operate with reduced power, 111 watts, at
night, as proposed. However, the agent also advised FTP that
operation of KNTB at night with its authorized daytime power of
1000 watts was a serious violation of the terms of its
authorization.
5. On December 16, 2002, Seattle agents inspected the KNTB
transmitter site. The inspection revealed that the station had
remote operation and control of the transmitter as required by
the Rules, but there was no indication that the transmitter was
programmed to reduce power or shut down at sunset. The
station's transmitter logs contained no indication that the
station's transmitter power had changed or been reduced on
November 5 or November 6, 2002, at sunset, nor was there any
indication in the logs that the station's transmitter power had
been reduced below it's authorized daytime power of 1000 watts
at any time during the month of November.
III. DISCUSSION
6. Section 503(b) of the 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.4 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.5
7. The Rules state that each licensee is responsible for
maintaining and operating its broadcast station in a manner
which complies with the technical rules and in accordance with
the terms of the station license.6 Specifically, Section
73.1745 of the Commission's 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. FTP's
license for KNTB authorized operations during the day with 1000
watts power. FTP also had a long-standing proposal before the
FCC to operate KNTB at night with significantly reduced power,
and FTP believed, albeit incorrectly, that the licensed
nighttime authority was 111 watts. FTP did not have authority
to operate station KNTB at night with full daytime power, and
FTP station personnel knew that KNTB was required to reduce
power at sunset. However, on November 5 and November 6, 2002,
FTP failed to reduce KNTB's daytime operating power at sunset.
8. Based on the evidence before us, we find that on
November 5 and 6, 2002, FTP repeatedly violated Section 73.1745
of the Commission's Rules when it operated station KNTB with
full power after local sunset in contravention of its station
authorization.
9. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement''),7 sets a
base forfeiture amount of $4,000 for exceeding power limits. 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.8
Applying the Forfeiture Policy Statement and statutory factors
to the instant case, we conclude a $4,000 forfeiture is
warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act9 and Sections 0.111, 0.311 and 1.80 of the
Rules, FTP Corporation is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of four thousand
dollars ($4,000) for violating Section 73.1745 of the Rules. 10
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, FTP Corporation, SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
12. 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 note the
NAL/Acct. No. and FRN referenced in the caption.
13. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. and FRN reference in
the caption.
14. 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.
15. 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 Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.11
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 Technical and Public Safety
Division, Enforcement Bureau, Federal Communications Commission,
445 12th Street S.W., Washington, D.C. 20554. 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 any 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 Certified Mail Return
Receipt Requested to FTP Corporation, 1940 Fillmore St., San
Francisco, CA 94115.
FEDERAL COMMUNICATIONS COMMISSION
Dennis J. Anderson
District Director
Seattle Office
Attachment A - FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. § 73.1745.
2 47 U.S.C. § 503(b).
3 File No. BL 780911AM.
4 47 U.S.C. § 503(b).
5 Section 312(f)(2), 47 U.S.C. § 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."
6 47 C.F.R. § 73.1350(a).
7 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).
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, 1.80 and 73.1745.
11 See 47 C.F.R. § 1.1914.