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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Chester P. Coleman ) File Number: EB-03-AN-091
c/o American Radio Brokers, ) EB-03-AN-092
Inc.
San Francisco, CA )
) NAL/Acct. No: 200532780003
Licensee of Broadcast ) FRN: 0005037585
Stations
KAXX, AM, Facility ID )
53491, 1020 kHz
Community of License - )
Eagle River, Alaska
)
KADX, FM, Facility ID )
10770, 94.7 MHz
Community of License - )
Houston, Alaska
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 10, 2004
By the Resident Agent, Anchorage Resident Agent Office, Western
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Chester P. Coleman, c/o American Radio
Brokers, Inc. (``Coleman''), San Francisco, California, licensee
of stations KAXX (AM),1 Eagle River, Alaska, and KADX(FM),2
Houston, Alaska, apparently willfully and repeatedly violated
Sections 73.1125(a) and (e), 73.1740(a)(1) and 73.1745(b) of the
Commission's Rules (``Rules'').3 Specifically, we find Coleman
apparently liable for failing to maintain main studios, local or
toll-free telephone numbers, and minimum operating schedules, for
KAXX and KADX, and for departing, without authorization, from the
terms of the stations' authorizations. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended
(``the Act''),4 that Coleman is apparently liable for a
forfeiture in the amount of twenty-four thousand dollars
($24,000.00).
II. BACKGROUND
2. On October 15, 2002, Anchorage agents attempted to
contact staff at the main studio location for stations KAXX and
KADX, located at 2509 Eide Street, Anchorage. The building's
directory indicated that the radio stations offices were located
in Suites 5 and 6. The agents found the studio locked and
unoccupied but heard music from within the office. The agents
attempted to contact the stations, but the main studio telephone
number listed for the stations was reported as out of service by
the local telephone system. Later, on October 16, 2002, an
Anchorage agent attempted to monitor the broadcasts for both KAXX
and KADX but found both stations off the air.
3. On December 12, 2002, an Anchorage agent revisited the
KAXX/KADX main studio location, but found the studio locked,
unoccupied and dark. The agent contacted the owner of the
property who indicated that the suites were leased by Chester
Coleman, and that Coleman was about two months delinquent in his
rent.
4. On January 22, 2003, the Commission's Media Bureau
granted Coleman's request for special temporary authority
(``STA'') for both KAXX and KADX to remain silent for a period of
90 days.5 On July 28, 2003, the Media Bureau subsequently
granted a second STA request which permitted KAXX and KADX to
remain silent until October 25, 2003.6 Both the January STA and
the July STA notified Coleman that the ``...stations' silent
status does not suspend the licensee's obligation to comply with
all other relevant Commission rules....'' 7 According to the
filings submitted by Coleman to the FCC and reflected in the FCC
database, KAXX and KADX were back on the air as of October 22,
2003.
5. On December 10 and 11, 2003, the Anchorage agents
monitored KAXX and KADX, but found no broadcast signal for either
station. The agents then attempted to visit the main studio for
the stations located at 2509 Eide Street, Anchorage, but found no
main studio at that location. They also found that the prior
phone number was disconnected. No other main studio and no other
phone number for KAXX or KADX was listed in any of the local area
phone books nor could the agents find any toll-free number listed
for KAXX and KADX.
6. Further investigation in February of 2004 by the agents
revealed that the lease on the main studio space had been
terminated as of June 30, 2003, that all of the equipment had
been removed (purportedly by station personnel) on or before June
30, 2003, that the power company had terminated service to the
stations and their broadcast tower in October of 2002, and that
Coleman's state business license has expired on December 31,
2002.
7. In July of 2004, the Anchorage agents again attempted
to ascertain the status of stations KAXX and KADX. The agents
detected no signal for either station, found no main studio, no
staff, no local or toll free number for either station, and that
the electricity to the broadcast tower remained disconnected. In
a letter dated November 17, 2004, Coleman informed the Commission
that both KAXX and KADX were back on the air. On November 27,
2004, monitoring by an Anchorage agent confirmed that both
stations had resumed broadcasting.
III. DISCUSSION
8. 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. The term ``willful''
as used in Section 503(b) is interpreted to mean simply that the
acts or omissions are committed knowingly.8 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.9
9. Section 73.1125(a) of the Rules requires the licensee
of a broadcast station to maintain a main studio at one of the
following locations: (1) within the station's community of
license; (2) at any location within the principal community
contour of any AM, FM or TV broadcast station licensed to the
station's community of license; or (3) within twenty-five miles
from the reference coordinates of the center of its community of
license as described in Section 73.208(a)(1).10 In addition,
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 managerial and staff presence at its main studio.11
The Commission has defined a minimally acceptable ``meaningful
presence'' as a full-time managerial and full-time staff
personnel. In addition, there must be ``management and staff
presence'' on a full-time basis during normal business hours to
be considered ``meaningful.'' 12 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. 13 Between October 15, 2002, and June
30, 2003, the site held out by Coleman as the main studio
location for both KAXX and KADX had no public access and no staff
presence. After June 30, 2003, agents were unable to find any
evidence that a main studio existed for either of the stations.
The January 2003 STA notified Coleman that KAXX and KADX were
required to comply with all relevant Commission rules.
Nevertheless, during the term of the STA, Coleman did not
maintain the requisite main studio for either station. Then,
subsequent to the expiration of the STA on October 23, 2003, and
through at least July of 2004, no main studio existed for KAXX
and KADX within the station's community of license; at any
location within the station's principal community contours or
within twenty-five miles from the reference coordinates of the
center of the station's communities of license. Coleman knew of
the requirement to maintain a main studio. Therefore, the
failure to maintain a main studio for the stations was willful.
The violation occurred on more than one day, therefore, it was
repeated.
10. Section 73.1125(e) requires every broadcast station to
maintain a local or a toll-free telephone number in its community
of license.14 As of October 15, 2002, the main studio telephone
number for both KAXX and KADX was out of service. Between
January 2003 and July 2004, no listings of a local or toll-free
number for either station could be located. The January 2003 STA
notified Coleman that KAXX and KADX were required to comply with
all relevant Commission rules. Therefore, the failure to
maintain local or toll-free telephone numbers for the stations
was willful. The violation occurred on more than one day,
therefore, it was repeated.
11. Section 73.1740(a)(1) of the Commission's Rules,15
states, in part, that all commercial AM and FM broadcast stations
are required to operate not less than two-thirds of the total
hours they are authorized to operate between 6 a.m. and 6 p.m.
local time and two-thirds of the total hours they are authorized
to operate between 6 p.m. and midnight, local time, each day of
the week except Sunday. Section 73.1745(b) of the Commission's
Rules,16 states, in part, that any unauthorized departure from an
operating schedule which is required to be filed with the FCC in
Washington, DC, will be considered as a violation of a material
term of the license. Beginning October 16, 2002, and continuing
through at least July 23, 2004, KAXX and KADX departed from their
authorized operating schedules and failed to operate for the
minimal amount of hours required by their authorizations and
Section 73.1740. Between January 22, 2003, and April 23, 2003,
and between July 28, 2003, and October 25, 2003, the silent
status of KAXX and KADX was sanctioned by Commission STA's. The
stations' failure to operate at all other times, including after
October 25, 2003, was not. Because of the STA's, Coleman was
aware of the requirement to resume minimum broadcast operations
in accordance with the stations' operating schedule after October
25, 2003. Consequently, his failure to do so was willful. The
violation occurred for more than one day, therefore, it was
repeated.
12. Based on the evidence before us, we find Coleman
willfully and repeatedly violated Sections 73.1125(a) and (e),
73.1740(a)(1) and 73.1745(b) of the Rules by failing to maintain
main studios, local or toll-free telephone numbers, and minimum
operating schedules, for both KAXX and KADX, and for departing,
without authorization, from the terms of the stations'
authorizations.
13. 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 failing to maintain a main studio and a toll-free
phone numbers is $7,000 per station, total for this violation is
$14,000 and; for failing to maintain a minimum broadcast schedule
and unauthorized discontinuance of operation is $5000 per
station, total for this violation is $10,000.17 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, 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.18 Applying the
Forfeiture Policy Statement, Section 1.80, and the statutory
factors, a $24,000 forfeiture is warranted.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED, pursuant to Section 503(b)
of the Act, and Sections 0.111, 0.311 and 1.80 of the Rules, that
Chester P. Coleman c/o American Radio Brokers, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-four thousand dollars ($24,000) for willful and
repeated violation of Sections 73.1125(a) and (e), 73.1740(a)(1)
and 73.1745(b) of the Rules by failing to maintain, in both
stations cases, a main studio, a minimum operating schedule and
unauthorized departure from the terms of the station
authorizations. 19
15. 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 for Forfeiture, Chester P. Coleman c/o
American Radio Brokers, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
16. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
17. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Anchorage Resident Agent Office, P.O. Box 221849, Anchorage,
Alaska 99522-1849 and must include the NAL/Acct. No. referenced
in the caption.
18. 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.
19. 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. 20554.20 20. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to: Chester P. Coleman c/o American Radio Brokers, Inc., 1255
Post Street, Suite 1011, San Francisco, CA 94109; Chester P.
Coleman c/o American Radio Brokers, Inc., 1255 Post Street, Suite
1023, San Francisco, CA 94109.
FEDERAL COMMUNICATIONS COMMISSION
David J. Charlton
Resident Agent
Anchorage Resident Agent Office
Western Region
Enforcement Bureau
_________________________
1AM broadcast station, KAXX, Facility ID 53491, is a Class A
facility, licensed to operate on 1020 kHz, omni-directional
during daytime hours and directionally for nighttime hours with a
directional array, serving the community of Eagle River, Alaska.
2FM broadcast station, KADX, Facility ID 10770, is a Class C2
facility, licensed to operate on 94.7 MHz, serving the community
of Houston, Alaska.
347 C.F.R. §§ 73.1125(a),(e), 73.1740(a)(1) and 73.1745(b).
447 U.S.C. § 503(b).
5See File Nos. BLSTA-20030113CV and BLSTA20021227ACE, granted
January 22, 2003 (``January 2003 STA''). In the January 2003 STA
it was noted that Coleman stated that he lacked the funds to
operate the stations but that these funds were committed to him
pursuant to Commission approval of a settlement agreement with
another entity.
6See File Nos. BLSTA20030724AHA and BLSTA20030724AGZ, granted
July 28, 2003 (``July 2003 STA'').
7January 2003 STA at 2; July 2003 STA at 2.
8Section 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 (1991).
9Section 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 `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.''
1047 C.F.R. § 73.1125(a).
11See Main Studio and Program Origination Rules, 2 FCC Rcd 3215,
3217-18, clarified 3 FCC Rcd 5024, 5026 (1988).
12Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616
n.6 (1991), clarified 7 FCC Rcd 6800 n.4 (1992).
13Id., 7 FCC Rcd at 6802.
1447 C.F.R. § 73.1125(e).
1547 C.F.R. § 73.1740(a)(1).
1647 C.F.R. § 73.1745(b).
1712 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. § 1.80.
1847 U.S.C. § 503(b)(2)(D).
1947 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80,
73.1125(a),(e), 73.1740(a)(1) and 73.1745(b).
20See 47 C.F.R. § 1.1914.