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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-783
)
Union Broadcasting, Inc. ) NAL/Acct. No.200332560010
Licensee of: )
AM Broadcast Station WHB ) FRN 0005-0276-02
AM Broadcast Station KCTE )
Overland Park, Kansas
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 18, 2003
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Union Broadcasting, Inc.
(``Union''), licensee of AM Broadcast station KCTE,
Independence, Missouri and AM Broadcast station WHB, Kansas
City, Missouri, apparently liable for a forfeiture in the
amount of eighteen thousand dollars ($18,000) for willful
and repeated violation of the terms of the KCTE station
authorization and Sections 73.1745(a) and 73.3526(c) of the
Commission's Rules (``Rules'').1 Specifically, we find
Union Broadcasting, Inc. apparently liable for operation
with modes and during hours not specified in the KCTE
station authorization and for failure to make the public
inspection file available to the public and to the FCC.
II. BACKGROUND
2. On October 7, 1999, the FCC, Kansas City Office
issued a Notice of Violation (``NOV'') to Union
Broadcasting, Inc. for violation of 47 C.F.R. §73.1745.
Specifically, station KCTE operated with modes and hours of
operation not specified by the KCTE station authorization.
3. On November 14, 2002, the FCC, Kansas City Office
received a complaint from a private citizen living in
Independence, Missouri. The complaint specified that
station KCTE frequently remained on the air at night with a
carrier which interfered with the complainants' ability to
receive adjacent channel AM stations. The complainant later
stated in a telephone interview that he had complained
directly to KCTE regarding the nighttime operation but had
received a ``runaround.''
4. During the period of November 14?17, 2002, the
FCC, Kansas City Office monitored KCTE, 1510 kHz in the
Independence, Missouri area. This monitoring revealed that
even though KCTE discontinued programming at approximately 5
p.m. and stopped transmitting, shortly after 5 p.m. on
November 14, and November 15, 2002, the transmitter again
came on the air at a reduced signal level and radiated
without programming throughout the night. On the night of
November 16, 2002, transmission stopped at approximately 5
p.m and remained off that night.
5. On November 19, 2002, an Agent with FCC, Kansas
City Office, spoke with the person who filed the complaint
and they confirmed that the station was off the air the
night of November 16, 2002, but indicated the station was
back on the air the night of November 18, 2002.
6. On November 20, 2002, an Agent with FCC, Kansas
City Office, inspected radio stations KCTE and WHB at the
main studio location for both stations at 6721 W. 121st St.,
Overland Park, Kansas. This inspection noted several
violations including:
a. The public inspection file for both WHB and KCTE
was not available to the public or to the FCC agent
at the time of inspection. It was locked in the
office of a station employee who was not present at
the station at that time. According to the station
manager, the normal business hours for the main
studio are 8:00 a.m. to 5:30 p.m., Monday through
Friday. The inspection occurred on a Wednesday
beginning at approximately 9:10 a.m. and ending at
approximately 11:40 a.m. At no time during this
period was the public file available for inspection.
b. Concerning the transmitter operation at night by
KCTE, the station manager stated he did not know if,
or how, or when, transmitter readings were being
taken on station KCTE. No operator was monitoring
the power or directional parameters, no automated
equipment was monitoring the KCTE transmitter, and
no logs were being kept of transmitter readings.
The last employee known to check on the transmitter
was the contract engineer, Ed Treese, who stated he
had not been to the transmitter site for the two
week period prior to FCC inspection, and then during
daytime hours only. During inspection at the
transmitter site, the engineer indicated that power
variations had previously caused problems with the
timer associated with the automatic switching device
utilized to turn the transmitter on and off.
According to the station engineer, the automatic
switching device was supposed to turn the
transmitter on and place it at 500 watts for pre-
sunrise operation at 6:45 a.m., then increase power
to 10kW at 7:30 a.m. for full daytime power, then
turn the transmitter off at 5:00 p.m.
III. DISCUSSION
7. The KCTE station authorization specifies daytime
operation only. Nighttime operation is not authorized.
For the month of November, the authorized sunrise time for
the KCTE transmitter location is 7:00 a.m. (CST) and the
sunset time is 5:00 p.m. (CST). Section 73.99 authorizes
pre-sunrise operation beginning no earlier than 6:00 a.m.
The licensee was not utilizing post-sunset operation
according to the station manager. Section 73.1745(a)
specifies 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 provided. On
November 14, 2002, station KCTE transmitted on the frequency
1510 kHz during the period of 6:00 p.m. to midnight. On
November 15, 2002, KCTE transmitted on the frequency of 1510
kHz during the periods of midnight to 6:00 a.m. and from
6:00 p.m. to midnight. On November 16, 2002, station KCTE
transmitted on 1510 kHz from midnight to 6:00 a.m. Each
listed period of operation is in violation of this section
and the terms of the KCTE station authorization.
8. The violation of 73.1745(a) is a repeat violation.
The licensee was issued an NOV dated October 7, 1999 for
operation on 10 separate dates with broadcast times not
authorized by the rules or the KCTE station authorization.
The latest KCTE license renewal was issued on July 27, 1998
with an expiration of February 1, 2005. Therefore, the
violations noted in October, 1999 and in November, 2002
occurred during the same license period.
9. Section 73.3526(c) requires the public inspection
file be available for public inspection at any time during
regular business hours. On November 20, 2002, the public
inspection files for both KCTE and WHB were locked in the
office of a station employee and not made available for
inspection upon request by an FCC inspector. The file
remained locked during the two hour inspection, which
occurred on a Wednesday during regular business hours. The
file was not available to the public or the FCC.
10. Based on the evidence before us, we find Union
willfully2 and repeatedly3 violated the terms of the KCTE
station authorization and Sections 73.1745(a) and 73.3526(c)
of the Rules by operating on November 14, 15 & 16, 2002 with
power and at times of operation not authorized by the KCTE
station authorization, and by failing to make the public
inspection files of both KCTE and WHB available to the
public and the FCC.
11. Pursuant to Section 1.80(b)(4) of the Rules,4 the
base forfeiture amount for unauthorized emissions is $4,000
and for public file violations the base forfeiture is
$10,000. 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 Communications Act of 1934,
as amended (``Act''), which include 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 Union's unauthorized
operation of the KCTE transmitter is repeated. The FCC
notified Union of fifteen instances of the same type of
violation in 1999. Therefore, an upwards adjustment of the
base forfeiture for unauthorized emissions from $4,000 to
$8,000 is justified. Considering the entire record and
applying the factors listed above, this case warrants an
$18,000 forfeiture ($8,000 for unauthorized emissions and
$10,000 for the public file violation).
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,6 and Sections 0.111, 0.311 and
1.80 of the Rules,7 Union Broadcasting, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eighteen thousand dollars ($18,000.00) for willful
and repeated violation of Sections 73.1745(a) and 73.3526(c)
of the Rules by operating station KCTE at times and with
power not authorized by the KCTE station authorization, and
by failing to make the public inspection file for stations
KCTE and WHB available to the public and the FCC.
13. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Union Broadcasting, Inc. SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
14. 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. and FRN referenced
above. 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, D.C. 20554.8
15. 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 above.
16. 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.
17. 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 &
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.
18. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Union Broadcasting, Inc., 6721 W. 121st
St., Overland Park, KS 66209.
FEDERAL COMMUNICATIONS COMMISSION
- Unhandled Picture -
Robert C. McKinney
Kansas City Office, Enforcement
Bureau
Attachment
October 2002
ATTACHMENT A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 C.F.R. §§ 73.1745(a) and 73.3526(c).
2 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 . . . .'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387-88
(1991).
3 The 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.'' 47
U.S.C. § 312(f)(2).
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 See 47 C.F.R. § 1.1914.