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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
A-O Broadcasting Corporation ) File Number: EB-04-DV-114
)
Operation of Unlicensed Radio ) NAL/Acct. No. 200432800001
Station on 97.9 MHz near )
Cloudcroft, New Mexico ) FRN 0005-0204-74
(Former Licensee of KTMN,1
Cloudcroft, New Mexico, Facility
ID 89049)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released:
April 23, 2004
By the District Director, Denver Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture ("NAL"), we find that A-O Broadcasting
Corporation ("A-O"), former licensee of station KTMN, in
Cloudcroft, New Mexico, apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as
amended ("Act"),2 by operating on the frequency 97.9 MHz
without an authorization from the Federal Communications
Commission ("Commission"). We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended,3 that
A-O is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000).
II. BACKGROUND
2. On January 3, 2003, the Media Bureau notified A-O
by letter that the license for station KTMN expired and was
thereby forfeited as of November 8, 2002, pursuant to
Section 312(g) of the Act,4 because of that station's
failure to transmit broadcast signals for a consecutive 12
month period.5 On Thursday, April 8, 2004, the Commission's
Denver Office received information from three different
sources that KTMN had resumed broadcast operations. A
search of the Commission's licensee database revealed no
license for the operation of KTMN on 97.9 MHz.
3. On April 8, 2004, an agent from the Denver Office
called KTMN and spoke with a disc jockey at the station who
told the agent that KTMN had been on the air for two days.
The Denver agent then contacted the President of A-O, who
confirmed that KTMN was broadcasting on 97.9 MHz.6 On April
9, 2004, the Denver agent telephoned A-O's President and
advised that the Commission records failed to show any
Commission operating authority for KTMN. Later that day, A-
O filed a notification with the Commission that KTMN would
be broadcasting the weekend of April 10 - 11, 2004, pursuant
to Section 73.1250 of the Commission's Rules.7
4. On April 13, 2004, the Chief of the Media Bureau's
Audio Division sent a letter to A-O's counsel advising them
that "DKTMN(FM), Cloudcroft, N.M., is without authority to
initiate or continue broadcast operations."8 A-O was also
ordered to report, by April 15, 2004, "whether the licensee
ceased operations and on what day it ceased operations."9
On April 15, 2004, A-O's counsel responded to the Media
Bureau April 2004 Letter with a letter stating that "on
behalf of the licensee, I can report to you that KTMN
remains on the air . . . ."10 The station, however, went
off the air on April 19, 2004.
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 willfully 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.11 The term "repeated" means the commission or
omission of such act more than once or for more than one
day.12
6. Section 301 of the Act prohibits radio operations
"except and in accordance with this Act and with a license
granted under the provisions of this Act."13 On or around
April 6, 2004, A-O began transmitting on the frequency 97.9
MHz, from the Wofford Peak electronic site, near Cloudcroft,
New Mexico, located on United States Forest Service lands,
without the required Commission authorization. As explained
above, A-O apparently continued to operate KTMN until
Monday, April 19, 2004, despite being notified by the
Commission that KTMN's license had been automatically
forfeited, by operation of law, and that KTMN has no
Commission authority to initiate or continue broadcast
operations. A-O explicitly acknowledged, on April 15, 2004,
through counsel, that "KTMN remains on the air." Therefore,
it appears that A-O's unlicensed operation on 97.9 MHz is
willful. It further appears that unlicensed operation on
97.9 MHz occurred on more than one day; thus, it is
repeated. Based on the evidence before us, we find that A-O
willfully and repeatedly violated Section 301 of the Act by
operating radio transmission apparatus without a license on
97.9 MHz.14
7. 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"), and Section 1.80 of the Rules, the base
forfeiture amount for operation without an instrument of
authorization for this service is $10,000.15 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 violations, 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.16 Considering the entire
record and applying the factors listed above, we conclude a
forfeiture in the amount of $10,000 is appropriate.
.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules, A-O Broadcasting Corporation is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of
Section 301 of the Act.17
9. 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 for
Forfeiture, A-O Broadcasting Corporation 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)
and the NAL/Acct. No. referenced in the caption.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington,
D.C. 20554, and must include the NAL/Acct. No. referenced in
the caption.
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 ("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.
13. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.18
14. 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 Spectrum
Enforcement 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.
15. IT IS FURTHER ORDERED THAT a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by
Certified Mail, Return Receipt Requested, and regular mail,
to A-O Broadcasting Corporation, Attention Robert J. Flotte,
3001 North Florida Avenue, Alamogordo, New Mexico 88301-
9794, and its counsel, Paul H. Brown, Esq., Wood, Maines &
Brown, Chartered, 1827 Jefferson Place, N.W. Washington,
D.C. 20036.
FEDERAL COMMUNICATIONS
COMMISSION
Nikki P. Shears
District Director, Denver
Office
Enclosure: FCC List of Small Entities
_________________________
1 The Commission's database now lists the station call sign
as "DKTMN" to reflect its deletion.
2 47 U.S.C. § 301.
3 47 U.S.C. § 503(b).
4 47 U.S.C. § 312(g).
5 Letter to Paul H. Brown, Esq., 18 FCC Rcd 35 (2003)
("Media Bureau January 2003 Letter"). The Media Bureau also
denied A-O's petition for reconsideration of the Media
Bureau January 2003 Letter. See Letter to Paul H. Brown,
Esq., 18 FCC Rcd 3818 (2003). An application for review of
that action is pending.
6 A-O's President indicated that the station was
simulcasting 100% of KUPR's programming, a FM broadcast
station licensed to Southern New Mexico Radio Foundation to
serve Alamogordo, New Mexico, operating on 91.7 MHz. A-O's
President, who is also the President of Southern New Mexico
Radio Foundation, stated that KTMN was broadcasting from the
Wofford Mountain electronics site, located on United States
Forest Service lands near Cloudcroft, New Mexico, and had
been on the air for the last two days.
7 47 C.F.R. § 73.1250 (Broadcasting Emergency Information).
See Letter from A-O Broadcasting Corporation, KTMN,
Cloudcroft, New Mexico, to Marlene Dortch, Secretary,
Federal Communications Commission (April 9, 2004). A-O also
contacted staff in the Audio Division of the Media Bureau
about receiving temporary authority to operate April 10 -
11, 2004.
8 April 13, 2004, letter from Peter H. Doyle, Chief, Audio
Division, Media Bureau, to Paul H. Brown, Wood, Maines &
Brown ("Media Bureau April 2004 Letter").
9 Id.
10 April 15, 2004, letter from Barry D. Wood, Wood, Maines
& Brown, to Peter H. Doyle, Chief, Audio Division, Media
Bureau.
11 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).
12 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2),
which also applies to violations for which forfeitures are
assessed under 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."
13 47 U.S.C. § 301.
14 A-O operated on 97.9 MHz in Cloudcroft, N.M., from on or
around April 6, 2004, until approximately noon on April 19,
2004.
15 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999); 47 C.F.R. §1.80.
16 47 U.S.C. § 503(b)(2)(D).
17 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.311,
1.80.
18 See 47 C.F.R. § 1.1914.