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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Alpine Broadcasting Limited ) File No. EB-04-ST-117
Partnership )
) NAL/Acct. No.
Former Licensee of AM Station ) 200532980001
KWYS )
West Yellowstone, Montana FRN: 0005952668
Facility ID 24434
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
14, 2005
By the Acting District Director, Seattle District Office, Western
Region, Enforcement Bureau:
I. INTRODUCTION
1.1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Alpine Broadcasting Limited
Partnership (``Alpine''),1 former licensee of AM Station KWYS
in West Yellowstone, Montana, apparently willfully and
repeatedly violated Section 73.1125(a) of the Commission's
Rules (``Rules''),2 by failing to maintain a meaningful
managerial and staff presence at the KWYS main studio. We
conclude, pursuant to Section 503(b) of the Communications Act
of 1934, as amended (``Act''),3 that Alpine is apparently
liable for a forfeiture in the amount of seven thousand
dollars, $7,000.
II. BACKGROUND
1.2. On May 17, 2004, an agent from the Commission's
Seattle Office attempted to conduct a routine inspection of
the KWYS main studio at 303 N. Canyon Street, West
Yellowstone, Montana, during regular business hours. The
agent found the main studio locked with no station personnel
present, only a sign referring persons seeking the public file
to see a realty agency, located across the hall, for
instructions on how to gain access. A representative from the
realty company told the agent that no one associated with KWYS
had been present at the studio for the last few months and
that he had an agreement with the station to let people see
the public file if requested. The agent contacted Alpine's
office in Idaho Falls, Idaho. Alpine's General Partner told
the agent that KWYS was run remotely from Idaho Falls and that
an advertising agent in West Yellowstone went to the studio
infrequently to work on ads. He also advised the agent that
he or KWYS's contract engineer could arrive at the station in
three to four hours to complete the inspection, but no sooner.
III. DISCUSSION
1.3. 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) has
been interpreted to mean simply that the acts or omissions are
committed knowingly.4 The term ``repeated'' means the
commission or omission of such act more than once or for more
than one day.5
1.4. 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).6 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.7 The
Commission has defined a minimally acceptable ``meaningful
presence'' as full-time managerial and full-time staff
personnel.8 In addition, there must be ``management and staff
presence'' on a full-time basis during normal business hours
to be considered ``meaningful.''9 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.''10 The KWYS studio was
not staffed at the time of the inspection, and regular access
to the studio during normal working hours was only available
by contacting representatives of a nearby business. Alpine's
general partner acknowledged the station was operated remotely
and not regularly staffed. According to a representative of
the nearby business, Alpine had not staffed the KWYS main
studio for a few months. Because Alpine contracted with
another business to provide access to the KWYS main studio,
Alpine was aware that a meaningful managerial and staff
presence was not being maintained at the KWYS studio.
Therefore, Alpine's violation was willful. Alpine's violation
occurred on more than one day, therefore, it was repeated.
1.5. Based on the evidence before us, we find that
Alpine, apparently willfully and repeatedly violated Section
73.1125(a) of the Commission's Rules (``Rules''),11 by failing
to maintain a meaningful managerial and staff presence at the
KWYS main studio.
1.6. 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 violation of the main
studio requirements is $7,000.12 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.13 Considering the
entire record in this case, we find that Alpine is liable for the
entire base amount for its violation of the main studio
requirements. Applying the Forfeiture Policy Statement, Section
1.80, and the statutory factors, we conclude that Alpine is
apparently liable for a $7,000 forfeiture.
IV. ORDERING CLAUSES
1.7. 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,
Alpine Broadcasting Limited Partnership, is hereby NOTIFIED of
their APPARENT LIABILITY FOR A FORFEITURE in the amount of
seven thousand dollars ($7,000) for violating Section
73.1125(a) of the Commission's Rules.14
1.8. 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, Alpine Broadcasting Limited Partnership SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
1.9. 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.
1.10. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Seattle Office, 11410 NE 122nd Way, STE 312, Seattle,
Washington 98034 and must include the NAL/Acct. No. referenced
in the caption.
1.11. 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.
1.12. 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
Receivable Operation Group, 445 12th Street, S.W., Washington,
D.C. 20554.15
1.13. IT IS FURTHER ORDERED that this Notice of Apparent
Liability for Forfeiture shall be sent, by Certified Mail,
Return Receipt Requested, and regular mail, to Alpine
Broadcasting Limited Partnership, PO Box 2158, Ketchum, ID
83340-2158.
FEDERAL COMMUNICATIONS COMMISSION
Steven Houser
Acting District Director
Seattle District Office
Western Region
Enforcement Bureau
_________________________
1On June 21, 2004, the Commission accepted Alpine's application
to assign, among other licenses, the license of KWYS(AM), to
Chaparral Broadcasting, Inc. See File No. BALH-20040617AAW. The
application was granted on July 30, 2004. According to
Commission records, the transaction was consummated on August 13,
2004. At the time of the violation discussed herein, Alpine was
the licensee of KWYS.
247 C.F.R. § 73.1125(a).
347 U.S.C. § 503(b).
4Section 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).
5Section 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.''
647 C.F.R. § 73.1125(a).
7See Main Studio and Program Origination Rules, 2 FCC Rcd 3215,
3217-18 (1987), clarified 3 FCC Rcd 5024, 5026 (1988).
8Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616
(1991), clarified 7 FCC Rcd 6800 (1992).
9Id.
107 FCC Rcd at 6802.
1147 C.F.R. § 73.1125(a).
1212 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1347 U.S.C. § 503(b)(2)(D).
1447 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80,
73.1125(a).
15See 47 C.F.R. § 1.1914.