Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
127, Inc. ) EB-05-KC-143
Licensee of Station KLFJ ) NAL/Acct. No.200632560002
Springfield, Missouri ) FRN 0011407814
Facility ID # 17137 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 3, 2006
By the District Director, Kansas City Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that 127, Inc., licensee of station KLFJ, in Springfield, Missouri,
apparently willfully and repeatedly violated Sections 73.1125(a) and
73.1745 of the Commission's Rules ("Rules"), and willfully violated
Section 73.3526(a) of the Rules by failing to maintain a main studio,
operating overpower during nighttime hours and not providing access to
a public file. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that 127, Inc. is
apparently liable for a forfeiture in the amount of twenty one
thousand dollars ($21,000).
II. BACKGROUND
2. On December 13, 2005, an agent from the Commission's Kansas City
Office of the Enforcement Bureau ("Kansas City Office") received a
report that radio station KLFJ located in Springfield, Missouri was
not reducing power during nighttime hours as required by the station
license. The Commission agent monitored KLFJ's signal from a location
in Springfield. The agent's monitoring indicated no power reduction in
KLFJ's signal from mid afternoon until after sunset.
3. On December 14, 2005, the agent again monitored the signal strength of
the station from the same location previously used and again the
monitoring indicated no reduction in signal strength during nighttime
hours from the signal level observed during mid-afternoon. Telephone
calls to KLFJ went unanswered at 9:03 AM, 10:38 AM, 1:05 PM, 2:55 PM
and 4:00 PM this date.
4. On December 15, 2005, the agent contacted Ms. Linda Morgan, executive
assistant to the station's owner, C.J. Perme, at Surrey Vacation
Resorts/Surrey Grand Crown Resort, by using the phone number provided
in KLFJ's EEO Form 396 located on the FCC website. Ms. Morgan was
located at the address listed on the EEO form, 430-C Highway 165 South
in Branson, Missouri. The agent interviewed Ms. Morgan at that
address. Ms. Morgan stated there was no studio for the radio station
and station programming is done via computer from West Hollywood,
California. Ms. Morgan stated she did not know the location of the
public file but suggested checking at the Econo Lodge in Springfield.
Ms. Morgan stated the KLFJ phone number listed in the Springfield
phone book is supposed to be answered and is located at the Econo
Lodge along with the computer containing the station's aired material.
Ms. Morgan provided the phone number for the contract engineer for
KLFJ and stated he would be able to aid with inspection of the
transmitter and equipment located at the Econo Lodge.
5. Still on the same date, the agent inspected KLFJ's transmitter site and
programming equipment located in Springfield, Missouri. Mr. Corbin
Campbell, the KLFJ contract engineer, was present during the inspection.
The transmitter was operating at a power of 1125 watts. Mr. Campbell
advised that operation at this power had been occurring for 2 to 3 months.
Mr. Campbell stated that there was currently no studio or studio
equipment. There was no microphone or other audio mixing capabilities that
would allow origination of programming from the Econo Lodge or the
transmitter site. Station programming material is uploaded to one of the 2
computers (located in a back room of the Econo Lodge motel) via phone line
from West Hollywood, California. During the inspection, Mr. Campbell was
able to reduce the transmitter power to approximately 25 watts both
manually and by using the remote control. Mr. Campbell advised that remote
control instructions were left at the Econo Lodge when it was owned by Mr.
Perme. According to Mr. Raj, new owner of the Econo Lodge, current Econo
Lodge employees did not have any knowledge of the radio station operation
or of any station records. Mr. Campbell stated he is called only as
needed. Mr. Campbell knows of no radio station staff locally and advised
no chief operator has been designated for the station. A check of the
phone for the station found it unplugged from the telephone jack located
at the Econo Lodge front desk but operating correctly when plugged in.
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. The term
"willful" as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly. The term "repeated"
means the commission or omission of such act more than once or for more
than one day.
7. Section 73.1125(a) of the Rules requires that each AM broadcast station
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 Sec. 73.208(a)(1). 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. The Commission has defined a minimally acceptable "meaningful
presence" as 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." 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." On at least December 14 and 15, 2005, KLFJ did not have a
main studio or program originating capabilities as confirmed by the
station owner's executive assistant and the contract engineer.
8. Section 73.1745 of the Rules states: (a) 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 in this part; and
(b) 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. KLFJ's license authorizes
daytime power of 5000 watts and nighttime power of 28 watts. Monitoring of
the station's signal strength on the nights of December 13 and 14, 2005,
determined the station was operating overpower at a power of 1125 watts
during night time hours. The contract engineer for the station stated that
the KLFJ transmitter had operated continuously at a power of 1125 watts
for at least 2 to 3 months.
9. Section 73.3526(a) of the Rules requires commercial broadcast stations
maintain for public inspection, a file containing materials listed in that
section. The public inspection file is to be maintained at the main studio
of the station and be available for public inspection during regular
business hours. On December 15, 2005, no public file was available upon
request.
10. Based on the evidence before us, we find that 127, Inc. apparently
willfully and repeatedly violated Sections 73.1125(a) and 73.1745, and
willfully violated Section 73.3526(a) of the Rules by failing to maintain
a main studio, operating overpower during night time hours and having no
public file available.
11. 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 are $7,000 for failing to maintain a main studio,
$4,000 for exceeding power limits and $10,000 for violation of public file
rules. 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. Applying the Forfeiture Policy Statement, Section
1.80, and the statutory factors to the instant case, we conclude that 127,
Inc. is apparently liable for a $21,000 forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, 0.314
and 1.80 of the Commission's Rules, 127, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty one thousand
dollars ($21,000) for violations of Sections 73.1125(a), 73.1745 and
73.3526(a) of the Rules.
13. 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, 127, 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 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 Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-6106.
The response, if any, must be mailed to Federal Communications Commission,
Enforcement Bureau, South Central Region, Kansas City Office, 520 NE
Colbern Road, Lee's Summit, Missouri, 64086-4711 and must include the
NAL/Acct. No. referenced in the caption.
15. 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.
16. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street, S.W.,
Room 1A625, Washington, D.C. 20554.
17. 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 127, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City Office
South Central Region
Enforcement Bureau
47 C.F.R. SS 73.1125(a), 73.1745 and 73.3526(a).
47 U.S.C. S 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
See Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3217-18
(1987), clarified 3 FCC Rcd 5024, 5026 (1988).
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified 7 FCC Rcd 6800 (1992).
Id.
7 FCC Rcd at 6802.
47 C.F.R. S 73.3526(a).
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(c)(1).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.1125(a),
73.1745 and 73.3526(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
5
Federal Communications Commission