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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Tabback Broadcasting Co. ) File Number: EB-07-SD-319
Licensee of Station KAZM(AM) ) NAL/Acct. No.: 200832940001
Sedona, Arizona ) FRN: 0003707825
Facility ID # 64494 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 21, 2007
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Tabback Broadcasting Co. ("Tabback"), licensee of station
KAZM(AM), in Sedona, Arizona, apparently willfully and repeatedly
violated Section 73.1745(a) of the Commission's Rules ("Rules") by
failing to operate KAZM(AM) in accordance with the station's
authorized power, hours of operation and directional antenna pattern
as specified. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Tabback is
apparently liable for a forfeiture in the amount of seven thousand
dollars ($7,000).
II. BACKGROUND
2. KAZM(AM) is authorized to operate with a non-directional antenna
pattern on 780 kHz with 5,000 watts during daytime hours and 250 watts
during nighttime hours with a directional antenna pattern. Daytime is
defined as the "period of time between local sunrise and local sunset"
and nighttime is defined as the period "between local sunset and local
sunrise." In Sedona, Arizona, during the month of October, local
sunrise occurs at 6:30 a.m. and local sunset occurs at 6:00 p.m. and
for the month of November, local sunrise occurs at 7:00 a.m. and local
sunset occurs at 5:30 p.m.
3. On October 30, 2007, in response to a complaint from another licensee
of nighttime interference from KAZM(AM) an agent from the Enforcement
Bureau's San Diego Office monitored KAZM(AM) and measured its field
strength levels. The agent also monitored KAZM(AM) and took multiple
field strength measurements on October 31, 2007, November 1, 2007, and
November 2, 2007, at multiple locations around the KAZM(AM)
transmitter site.
4. On October 30, 2007, the San Diego agent's measurements and monitoring
revealed that KAZM(AM) reduced its power at 7:03 p.m., to
approximately 1000 watts, and maintained that power throughout the
nighttime hours. On October 31, 2007, the agent's measurements and
monitoring revealed that KAZM(AM) reduced its power at 7:24 p.m., to
approximately 1000 watts, maintained that power throughout the
nighttime hours, and failed to change from its non-directional daytime
pattern to its authorized nighttime directional pattern.
5. On November 1, 2007, the agent's measurements and monitoring revealed
that KAZM(AM) reduced its power at 7:06 p.m., to approximately 1000
watts, maintained that power throughout the nighttime hours, and
failed to change from its non-directional daytime pattern to its
authorized nighttime directional pattern. On November 2, 2007, the
agent's measurements and monitoring revealed that KAZM(AM) reduced its
power at 5:32 p.m., to approximately 1000 watts, maintained that power
throughout the nighttime hours, and failed to change from its
non-directional daytime pattern to its authorized nighttime
directional pattern. The monitoring performed by the San Diego agent
also revealed that commercial programming was being broadcast by
KAZM(AM) during the nighttime hours of October 30, 2007 to November 2,
2007.
6. On November 2, 2007, the San Diego agent conducted an inspection of
KAZM(AM) and interviewed the owner of Tabback, the station's licensee.
The agent advised the owner that the inspection was in response to a
complaint from another licensee of nighttime interference. The owner
provided the San Diego agent with copies of eight letters that Tabback
had sent to "FCC, Broadcast Bureau, AM Branch" in Washington DC.
Theses letters were dated between February 14, 2007, and October 24,
2007. The letters advised that KAZM was operating at 1000 watts
non-directional at nighttime for emergency purposes in order "to
service people in our market, who lose our signal at night, about
dangerous driving conditions and road closures caused by storm
activity and highway construction." The letter concluded "KAZM will
continue aforementioned nighttime operation until storm and dangerous
road conditions subside." The letters stated that the change in
nighttime parameters was taken in accordance with "FCC regulation
73.1250."
III. DISCUSSION
7. 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.
8. The Rules state that each licensee is responsible for maintaining and
operating its broadcast station in a manner which complies with the
technical rules and in accordance with the terms of the station
license. Specifically, Section 73.1745(a) of the Commission's Rules
states that no broadcast station shall operate at times or with modes
or power, other than those specified and made part of the license.
KAZM(AM) is authorized to operate with a non-directional antenna
pattern on 780 kHz with 5,000 watts during daytime hours and 250 watts
during nighttime hours with a directional antenna pattern.
9. Between October 30, 2007, and November 2, 2007, monitoring and
measurements by a San Diego agent revealed that KAZM(AM) was not
reducing its operating power to 250 watts in a directional pattern at
sunset, as required by its authorization. Despite assertions by
KAZM(AM)'s owner that the station's over-power nighttime operation was
covered by the "emergency" provisions of Section 73.1250 of the Rules,
we find that none of the letters referenced "emergency" operations
between October 30, 2007 and November 2, 2007, and that KAZM(AM)
broadcasted commercial programming during the nighttime hours of that
period, in contravention of the requirements of Section 73.1250.
Tabback was aware of the requirement to operate KAZM(AM) at the power
levels, hours of operation, and nighttime directional pattern
authorized on its license, but failed to do so. Therefore, the
violation was willful. The violation occurred on more than one day,
therefore, the violation was repeated.
10. 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 exceeding power limits is $4,000 and the
base forfeiture amount for failure to maintain a directional pattern
within prescribed parameters is $7,000. 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 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. While KAZM(AM) was operating with both excessive power
and an improper non-directional pattern at night, we believe both
violations are part of the same action. Consequently, applying the
Forfeiture Policy Statement, Section 1.80, and the statutory factors
to the instant case, we conclude that Tabback is apparently liable
for a $7,000 forfeiture.
IV. ORDERING CLAUSES
11. 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, Tabback Radio Corporation is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand dollars ($7,000) for violations of Section
73.1745(a) of the Rules.
12. 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, Tabback Radio Corporation
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego Office, 4542
Ruffner St., Suite 370, San Diego, California, 92111 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, Room 1A625, 445
12th Street, S.W., 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 Tabback Radio Corporation at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
47 C.F.R. S: 73.1745(a).
47 U.S.C. S: 503(b).
Authorized power levels, directional antenna pattern and hours of
operation are specified within station
license BL-811119AA. The directional antenna pattern is designed to
protect the nighttime service of co-channel radio stations KKOH(AM) in
Reno, Nevada (null along the 333.5DEG radial) and WBBM(AM) in Chicago,
Illinois (null along the 66.5DEG radial).
47 C.F.R S: 73.14.
All times indicated are local Mountain Standard Time.
47 C.F.R. S: 73.1250.
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."
47 C.F.R. S: 73.1745(a).
Section 73.1250(f) of the Rules allows AM broadcast stations to use "their
full daytime facilities during nighttime hours to broadcast emergency
information . . ., when necessary to the safety of life and property, in
dangerous conditions of a general nature and when adequate advance warning
cannot be given with the facilities authorized. Because of skywave
interference impact on other stations assigned to the same channel, such
operation may be undertaken only if regular, unlimited-time service, is
non-existent, inadequate from the standpoint of coverage, or not serving
the public need. All operation under this paragraph must be conducted on a
noncommercial basis. Recorded music may be used to the extent necessary to
provide program continuity." 47 C.F.R. S: 73.1250(f).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(D).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1745(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission