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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Hodson Broadcasting ) File Number: EB-08-DV-0216
Permittee of KHOD(FM) ) NAL/Acct. No.: 200932800004
Des Moines, New Mexico ) FRN: 0004297180
Facility ID # 165982 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 21, 2009
By the District Director, Denver Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Hodson Broadcasting ("Hodson"), permittee of station KHOD(FM), in
Des Moines, New Mexico, apparently willfully and repeatedly violated
Section 73.1620 of the Commission's Rules ("Rules") for operating
KHOD (FM) at variance from its authorization. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Hodson is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
2. On June 28, 2006, the Commission granted Hodson a construction permit,
authorizing the construction of a new Channel 287, Class C FM station
serving Des Moines, New Mexico, with an antenna height of radiation
center above ground of 14 meters on an antenna structure with an
overall height above ground of 32 meters. The construction permit is
due to expire on June 28, 2009. No authorization for program test
authority or operational authority has been issued by the FCC for KHOD
(FM). As of the date of this NAL, a search of the Commission's
database reveals that on February 10, 2009, the FCC accepted for
filing from KHOD a minor modification of construction permit. This
minor modification, requesting to change the class of the station from
class C to class A, to change the community of license from Des
Moines, New Mexico, to Raton, New Mexico, and to change the technical
specifications of the antenna, is still pending.
3. On December 10, 2008, a Denver agent investigated KHOD(FM)'s
operation. The agent observed that the station was in operation and
was being operated from a location in Raton, New Mexico, some 34 miles
northwest of its authorized location in Des Moines, New Mexico.
4. On December 11, 2008, the Denver agent inspected KHOD(FM) and observed
that the station continued to operate from the Raton, New Mexico,
studio/transmitter site. The inspection revealed that KHOD (FM) had no
special temporary authorization ("STA")/waiver to operate on-air, or
to operate from its current location, transmitted spurious signals on
approximately 103.8 MHz and 106.7 MHz at -38 to -42 dB below KHOD's
fundamental frequency of 105.3 MHz, had an incomplete public
inspection file, and no operating emergency alert system ("EAS")
equipment. The agent interviewed the owner, an employee and a
contractor of Hodson Broadcasting. Hodson acknowledged that the
KHOD(FM) signal in Raton, New Mexico, did not reach Des Moines, New
Mexico, the community of license for the KHOD(FM) construction permit.
The agent warned Hodson concerning the unauthorized operation. Hodson
voluntarily shut down the transmitter and stated that he would attempt
to obtain a STA from the Commission to resume operation. According to
Commission records, no such authorization was ever granted.
5. Reports received by the Denver Office revealed that KHOD(FM) continued
to operate on or about January 2, 2009, through February 4, 2009, and
again from February 18, 2009, through March 20, 2009.
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 73.1620 of the Commission's rules provides, in pertinent part,
that program tests may be conducted by permittees, upon completion of
construction, so long as the Commission is notified of the program
tests and a license application is filed within 10 days thereafter.
A special operating condition/ restriction was placed on the KHOD(FM)
construction permit which states "[t]he automatic program test
provisions of Section 73.1620 of the Commission's rules do not apply
in this case. A formal request for program test authority must be
filed in conjunction with FCC Form 302-FM, application for license,
before program tests will be authorized." Moreover, the facilities
tested must have been constructed in accordance with the terms of the
construction permit and the technical provisions of the application in
order to avert air navigation hazards and avoid interference to other
broadcast stations. Otherwise, the station is subject to revocation
of license or permit, or imposition of a forfeiture.
8. Hodson was authorized by the Commission to construct a Class C station
with an ERP of 82 kW and an antenna height of radiation center above
ground at 14 meters on an antenna structure that is 32 meters above
ground, to serve the community of Des Moines, New Mexico. At the time
of inspection on December 10 and 11, 2008, KHOD(FM) was located over
thirty miles from its authorized location, operating with less than
Class C FM facilities, from a building rooftop versus the authorized
antenna structure. Hodson, the permittee of KHOD(FM) acknowledged that
it was intentionally operating KHOD(FM) to serve the community of
Raton, New Mexico, as opposed to its authorized community of Des
Moines, New Mexico. Reports to the Denver Office show that Hodson's
unauthorized operation of KHOD(FM) in Raton, New Mexico, continued
after warnings to Hodson from the Denver agent.
9. Hodson has failed to construct KHOD(FM) in accordance with its
construction permit and has failed to request program test authority,
in violation of its construction permit and Section 73.1620 of the
Rules. Consequently, Hodson's operation of KHOD(FM) to this date has
been unauthorized. Based on the evidence before us, we find that
Hodson apparently willfully and repeatedly violated Section 73.1620 of
the Rules by operating KHOD(FM) at variance from the terms of the
KHOD(FM) construction permit.
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 construction and/or operation without an
instrument of authorization for the service is $10,000. In assessing
the monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(E) 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 Hodson is apparently liable for a $10,000
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, Hodson Broadcasting is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violation of Section
73.1620 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, Hodson Broadcasting SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. Hodson Broadcasting will also
send electronic notification on the date said payment is made to
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado, 80226 and must include
the NAL/Acct. No. referenced in the caption. An electronic copy shall
be sent to WR-Response@fcc.gov.
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. 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 Hodson Broadcasting at its address of
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
Denver District Office
47 C.F.R. S: 73.1620.
47 U.S.C. S: 503(b).
See File. No. BNPH-20060309ADA.
See File No. BMPH-20090209ABC.
The agent also noted that the station was being operated with a power
level, antenna height, and antenna structure at variance from its
construction permit BNPH-20060309ADA. Specifically, KHOD(FM) operated with
less than Class C FM facilities by operating with less than 20 watts
transmitter power output, and operated from a building rooftop versus the
authorized antenna structure.
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: 73.1620.
KHOD(FM) Construction Permit, granted June 28, 2006.
Id; 47 C.F.R. S: 73.1620, 47 U.S.C. S: 319(c).
See 47 U.S.C. S:S: 312(a)(2), 319(c), and 503(b)(1)(A) (forfeiture
appropriate for willful or repeated failure to comply substantially with
the terms and conditions of any permit or other authorization issued by
See Lauren A. Colby, Esq., 21 FCC Rcd 1248 (2006).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1620.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission