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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-
DV-446
Arnold Broadcasting Company, Inc. ) NAL/Acct. No.
915DV0001
Sterling, Colorado 80751 )
MEMORANDUM OPINION AND ORDER
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
violation.
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
is hereby GRANTED IN PART AND DENIED IN PART.
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.
FEDERAL COMMUNICATIONS COMMISSION
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.
3
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.