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                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554

In the Matter of                        )
FM Broadcast Station KNEC               )    File No. EB-99-
Arnold Broadcasting Company, Inc.       )    NAL/Acct. No. 
Sterling, Colorado  80751               )


     Adopted:  January 3, 2001               Released:  
January 5, 2001  

By the Chief, Enforcement Bureau:

     1.   In this Memorandum  Opinion and Order (``Order''), 
we  grant  in  part  and  deny  in  part  the  Petition  for 
Reconsideration  filed  on  February   24,  2000  by  Arnold 
Broadcasting  Company,   Inc.  (``Arnold'').   Arnold  seeks 
reconsideration of a Forfeiture  Order,1 in which the Chief, 
Enforcement Bureau, found that Arnold had willfully violated 
several  sections  of   the  Commission's  Rules  ("Rules"): 
Sections 11.35(a) (failure to  install and maintain operable 
Emergency Alert System ("EAS") equipment); 11.61 (failure to 
conduct EAS tests and activations  or maintain logs of tests 
or  activations2);  17.4(g)  (failure to  post  the  antenna 
structure  registration number  at the  base of  the antenna 
tower);  73.1870 and  73.1350(b) (failure  to designate  and 
post the designation  of a chief operator  for the station); 
73.1870(c)(3) (failure  to have a chief  operator review the 
station's records weekly and verify  in the station log that 
KNEC  operated   in  accordance  with  the   Rules  and  its 
authorization);  and 73.1225(c)  and 73.1820(a)  (failure to 
make  the  station's   equipment  performance  measurements, 
written designation of chief operator, technical records, or 
EAS logs  available to  FCC representatives  upon request3).  
In addition,  KNEC's staff could not  demonstrate compliance 
with  '  73.1350(a)  and  (b)(2) during  the  inspection  by 
showing that  the transmitter control system  in place would 
allow station personnel to  control the transmitter manually 
or via  telephone line, nor  could they show that  they were 
capable  of  shutting  the   transmitter  off  within  three 
minutes,  as   is  required  by  the   Rules.   Although  we 
determined that  Arnold violated  all of  the aforementioned 
sections of the Rules, we  held it liable only for violating 
Sections 11.35, 73.1350, 73.1820, and 73.1870, and we issued 
a $16,000 forfeiture for violating only these sections.  For 
the reasons discussed  below, we affirm the  issuance of the 
forfeiture but reduce the amount to $14,000.

     2.   Arnold's     Petition      for     Reconsideration 
("Petition"),   requests   that   the   Enforcement   Bureau 
(``Bureau'') specify the amounts assessed for each violation 
and state  whether we  arrived at  the forfeiture  amount by 
using any  upward or downward adjustments.   In this regard, 
Arnold argues  that the  forfeiture amount is  excessive and 
should, at most, be $11,000  in accordance with Section 1.80 
of the Rules.4  We  calculated the forfeiture against Arnold 
as follows:   $8,000 base amount  for the '  11.35 violation 
adjusted upward by $2,000  ($10,000); $3,000 base amount for 
the ' 73.1350 violations adjusted upward by $1,000 ($4,000); 
$1,000 base amount  for the ' 73.1820  violation; and $1,000 
for the '  73.1870 violation.  We made  an upward adjustment 
of $2,000 to the forfeiture amount for the ' 11.35 violation 
because  the  principal  of  the licensee,  Mr.  William  G. 
Arnold,  has  over  35  years experience  in  the  broadcast 
industry and has served as a local EAS chairman.  We made an 
upward  adjustment for  the  ' 73.1350  violation for  being 
particularly egregious because of  the potential for causing 
interference to  other licensed  stations should  KNEC begin 
operating  outside  its authorized  limits  with  no way  of 
turning  the   transmitter  off  within  three   minutes  in 
accordance with the Rules.         

     3.   In   its  Petition,   Arnold   asserts  that   not 
conducting EAS  tests and  activations and not  logging such 
tests  and  activations  are violations  that  are  subsumed 
within  each  other,  and  thus  should  not  be  considered 
separate   violations  for   purposes  of   determining  the 
forfeiture amount.  Though these are separate violations, in 
this  case we  assessed a  forfeiture amount  against Arnold 
only for not having EAS equipment installed and operational.  
We did not  assess a separate forfeiture  amount for failing 
to conduct  EAS tests and  then another separate  amount for 
not logging tests that it had not conducted.

     4.   Regarding  the  '   73.1225(c)  violation,  Arnold 
acknowledges that it did not have certain written records at 
the time  of the inspection,  but argues that "the  fact the 
records  did  not exist  does  not  constitute the  separate 
violation  of  failure  to  make records  available  to  FCC 
representatives  upon  request."   Although  we  found  that 
Arnold violated ' 73.1225(c) by not making requested records 
available to the FCC agents conducting the inspection, it is 
not necessary  to address this  argument because we  did not 
assess a separate forfeiture  amount against Arnold for this 

     5.   Further, Arnold contends that the Bureau's finding 
that  ``it  is  unclear  from the  response  whether  KNEC's 
technical  staff   is  able   to  determine   the  technical 
parameters of the transmitter'' is insufficient to support a 
finding  that Arnold  did not  have an  adequate transmitter 
control system  in place and  thus, to assess  a forfeiture.  
Section 73.1350(b)  of the Rules requires  that the licensee 
designate  one  or  more technically  competent  persons  to 
adjust the  transmitter operating parameters  for compliance 
with  the technical  rules  and  the station  authorization.  
Further,  '  73.1350(b)(2)  requires  that  the  transmitter 
control personnel be capable  of turning off the transmitter 
at  all times.   If  the transmitter  control personnel  are 
located at  a remote site,  they must be capable  of turning 
the transmitter off  within three minutes of  the event that 
requires shut-down.  In the response to the NAL, Mr. William 
G. Arnold stated that  "KNEC operates according to automatic 
transmitter rules,"  and thus,  "the operator at  the studio 
can  shut  the  transmitter  off  within  three  minutes  by 
shutting the audio off."  It may  well be the case that KNEC 
operates under such  a system; however, it  was clear during 
the inspection that the  duty operator, Jeremy Weathers, who 
was the  only person  at the  station during  the inspection 
other  than  the receptionist,  was  not  aware of  such  an 
operational system  and thus, could  not use it to  shut the 
transmitter off  within three  minutes.  When  asked, during 
the  inspection,  to  demonstrate  the  transmitter  control 
system, Mr. Weathers  replied that the station  could not be 
controlled from  the studio manually or  via telephone line, 
and stated that the only transmitter control for the station 
was  at a  site  six  miles south  of  Yuma, Colorado.   Mr. 
Weathers also stated that it  would not be possible to drive 
from the  studio to the  transmitter site in  three minutes.  
Section  73.1350(b) requires  that there  be someone  at the 
station   who  is   technically   competent  to   effectuate 
compliance with  the rule.  It  is not sufficient  merely to 
have an operational  system in place that  complies with the 
rule.  There must be someone at the station who knows how to 
operate the  system.  At the  time of the  inspection, there 
was not.  Thus, KNEC was in violation of ' 73.1350(b) at the 
time of the inspection and  a separate forfeiture amount was 
assessed for this violation.

     6.   Regarding the EAS  violations, Arnold asserts that 
no forfeiture should be assessed  for KNEC's failure to have 
EAS  equipment installed  and  operational  because the  EAS 
equipment had been timely ordered but had to be back-ordered 
by the manufacturer, and, thus,  had not arrived by the time 
KNEC went on the air, resulting in a situation beyond KNEC's 
control.  Arnold  also contends  that it  was in  the public 
interest to have KNEC on the  air, even though it had no EAS 
equipment,  because it  was  the only  broadcast station  in 
Yuma, Colorado.  Section 11.11 of the Rules provides that AM 
and FM broadcast stations have installed and operational EAS 
equipment effective  January 1, 1997.  Arnold  concedes that 
it  violated this  requirement; however,  we believe  that a 
reduction  of  $2,000  to  the  base  amount  of  $8,000  is 
appropriate given Arnold's good  faith effort to comply with 
the Rule by ordering equipment.   However, we do not believe 
a further  reduction on  this basis is  appropriate.  Arnold 
knew it had  EAS obligations.  It ordered  EAS equipment and 
its principal was an experienced  broadcaster who had been a 
local EAS chairman; yet, it went ahead and violated the rule 
without first  seeking and obtaining a  waiver.  Under these 
circumstances,  we believe  a  balance of  factors makes  an 
$8,000 forfeiture appropriate.         

     7.   Arnold  takes   issue  with  the  fact   that  the 
forfeiture amount was adjusted upward  because the principal 
owner of Arnold Broadcasting  is a ``seasoned broadcaster,'' 
having  been in  the  broadcast industry  for  35 years  and 
having  also  previously served  as  a  local EAS  chairman.  
Arnold  contends  that  the Commission's  Forfeiture  Policy 
Statement   does  not   provide  for   upward  or   downward 
adjustments based  upon the  experience of  the broadcaster.  
It is  true that  the Forfeiture  Policy Statement  does not 
explicitly provide for upward  or downward adjustments based 
upon  the experience  level of  the licensee.   However, the 
specific criteria for upward and downward adjustments can be 
affected by the degree  of experience the licensee possesses 
inasmuch as this can be relevant to egregiousness or intent.  
Here, it  is particularly troublesome that  the principal of 
Arnold was found to be in  violation of the EAS rules by not 
having EAS equipment installed  and operational, when he had 
previously served as  a local area EAS  chairman.  Thus, the 
forfeiture amount for the  EAS violation was, appropriately, 
adjusted upward, although we now  lower it to $8,000 for the 
reasons discussed above.
     8.   Finally, Arnold asserts that the forfeiture amount 
should have been adjusted downward because the EAS violation 
was minor and  because Arnold has a good  history of overall 
compliance.  We do not believe  that not having the required 
EAS equipment, and therefore,  not being able to participate 
in the  EAS program  is a minor  EAS violation.   Further, a 
search of  the Commission's records indicates  that at least 
four  other  broadcast  stations  of  which  Arnold  is  the 
licensee have been inspected  and issued Official Notices of 
Violation between  the time  KNEC was  inspected on  May 19, 
1999 and February 24, 2000, the date the Petition was filed.  
Consequently,  although Arnold  represents  in its  Petition 
that  "during  the  entire  period that  Arnold  has  owned" 
stations KSTC, KNNG, KFTM, and  KBRU, "none of them has ever 
been cited for any rule violations," that statement does not 
appear to  be accurate.   Therefore, no  downward adjustment 
for an  overall history of  good compliance is  warranted in 
this case.   
     9.   Accordingly,  IT  IS  ORDERED  that,  pursuant  to 
Section   1.106   of   the    Rules,5   the   Petition   for 
Reconsideration of  the Forfeiture Order in  this proceeding 

     10.  IT IS  FURTHER ORDERED  that, pursuant  to Section 
503(b) of the  Act, 47 U.S.C. ' 503(b), and  Section 1.80 of 
the Rules, 47 C.F.R. '  1.80, Arnold Broadcasting, Inc. must 
pay the amount of fourteen thousand dollars ($14,000) within 
thirty (30) days of the release date of this Order.  Payment 
may  be  made by  check  or money  order,  drawn  on a  U.S. 
financial institution, payable to the Federal Communications 
Commission.6  The remittance should be marked "NAL/Acct. No. 
915DV0001 and mailed to the following address:

               Federal Communications Commission
               P.O. Box 73482
               Chicago, Illinois  60673-7482

Forfeiture penalties not paid within 30 days may be referred 
to  the U.S.  Attorney for  recovery  in a  civil suit.   47 
U.S.C. ' 504(a).

     11.  IT IS FURTHER  ORDERED that, a copy  of this Order 
shall be  sent by certified mail,  return receipt requested, 
to Arnold Broadcasting Company, Inc., P.O. Box 830, 803 West 
Main,  Sterling, Colorado  80751  and to  its counsel  David 
Tillotson, Esq., 4606  Charleston Terrace, N.W., Washington, 
DC  20007-1911.


                         David H. Solomon
                         Chief, Enforcement Bureau

     1 Arnold  Broadcasting Company,  Inc., 15 FCC  Rcd 2704 
(Enf. Bur. 2000).

     2 See also, 47 C.F.R. '' 11.54 and 11.55.
      47 C.F.R. '' 11.35, 11.61, 17.4, 73.1225, 73.1350, 
73.1820, 73.1870.

     4  47   C.F.R.  '  1.80;  See   also  The  Commission's 
Forfeiture Policy Statement and Amendment to Section 1.80 of 
the Rules  to Incorporate the Forfeiture  Guidelines, 12 FCC 
Rcd  17087 (1997),  recon.  denied, 13  FCC  Rcd 303  (1999) 
(``Forfeiture Policy Statement''). 
     5 47 C.F.R. ' 1.106.

     6  Payment of  the  forfeiture in  installments may  be 
considered as  a separate matter in  accordance with Section 
1.1914  of the  Rules,  47 C.F.R.  '  1.1914.  Requests  for 
installment plans  should be  mailed to:  Chief,  Credit and 
Debt   Management   Center,   445  Twelfth   Street,   S.W., 
Washington, D.C.  20554.