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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
KYOO COMMUNICATIONS ) EB-00-KC-193 (AM)
)
Station KYOO(AM) ) EB-00-KC-194 (FM)
Station KYOO-FM )
Bolivar, Missouri 65613 ) NAL/Acct. No.
20013256-001
FORFEITURE ORDER
Adopted: April 27, 2001 Released:
May 1, 2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twelve thousand dollars
($12,000) against KYOO Communications (``KYOO'') for willful
violations of Sections 11.35(b), 17.50, 73.1350(c)(1) and
73.1800(a) of the Commission's Rules (``Rules'').1 The noted
violations involve KYOO's failure to maintain an operational
Emergency Alert System (``EAS'') combined with its failure to log
the outage of the EAS equipment, failure to clean and repaint its
antenna tower as often as necessary to maintain good visibility,
failure to monitor and control its transmitter, and failure to
maintain station logs.
2. On January 31, 2001, the Commission's Kansas City,
Missouri, Field Office (``Kansas City Office'') issued a Notice
of Apparent Liability (``NAL'') for a monetary forfeiture in the
amount of twenty-two thousand dollars ($22,000) for the noted
violations.2 KYOO filed its response on February 28, 2001.
II. BACKGROUND
3. KYOO is the licensee of Stations KYOO(AM) and KYOO-FM,
licensed to serve Bolivar and Halfway, Missouri, respectively.
KYOO owns those stations' common antenna tower. On December 5,
2000, agents from the Kansas City Office conducted an inspection
of Stations KYOO(AM) and KYOO-FM and their antenna tower. The
NAL is based on the following conditions observed by the agents
at the time of the inspection:
(a) The EAS coding/decoding equipment was inoperable. There
were no entries in the station logs indicating when the EAS
equipment became inoperable.
(b) The antenna structure did not provide good visibility
to aircraft because of rust and the extremely faded
condition of the paint.
(c) KYOO had not established monitoring procedures and
schedules sufficient to determine compliance with the
requirements of Section 73.1560 of the Rules3 regarding
operating power.
(d) KYOO was not maintaining its station logs as required
by Section 73.1820 of the Rules.4
4. In its response to the NAL, KYOO does not contest the
violations alleged in the NAL but seeks mitigation of the
proposed $22,000 forfeiture on the basis of its inability to pay
that amount. Specifically, KYOO argues that the proposed
forfeiture should be mitigated to $8,000 or less on the basis of
the gross revenues shown in its 1997, 1998, and 1999 federal
income tax returns and further mitigated on the basis that
imposition of the proposed forfeiture would result in a
devastating financial burden for KYOO's owner and his family.
III. DISCUSSION
5. We have examined KYOO's response to the NAL pursuant to
the statutory factors, and in conjunction with the Forfeiture
Policy Statement.5 As a result of our review, we conclude that
KYOO has provided a sufficient justification for mitigating the
proposed forfeiture amount to $12,000 but not $8,000.
Specifically, although other factors can be considered, the best
indication of a company's ability to pay a forfeiture amount is
its gross revenues. See generally, PJB Communications of
Virginia, Inc., 7 FCC Rcd 2088 (1992). To support its claim of
inability to pay, KYOO has submitted federal income tax returns
for 1997 through 1999. In light of the evidence submitted, for
which KYOO requested confidential treatment, we lower KYOO's
proposed monetary forfeiture from $22,000 to $12,000. 6
IV. ORDERING CLAUSES
6. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
503(b) of the Act, Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,7 KYOO Communications, IS LIABLE FOR A MONETARY FORFEITURE
in the amount of $12,000 for the willful violation of Sections
11.35(b), 17.50, 73.1350(c)(1) and 73.1800(a) of the Rules.
7. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within thirty (30) days
of the release of this Order. If the forfeiture is not paid
within the specified period, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.8 Payment may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications
Commission, to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 915OR0003. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.
8. IT IS FURTHER ORDERED that copies of this Order shall be
sent by certified mail, return receipt requested, to KYOO
Communications, 2306 W. Auburn, Bolivar, Missouri 65613, and to
its attorneys James P. Riley, Esq., and Liliana E. Ward, Esq.,
Fletcher, Heald & Hildreth, P.L.C., 1300 N. 17th Street, Eleventh
Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35(b), 17.50, 73.1350(c)(1) and
73.1800(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
20013256-001 (Enf. Bur., Released January 31, 2001).
3 47 C.F.R. § 73.1560
4 47 C.F.R. § 73.1820
5 See The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) and Section 503(b)(2)(D) of the Communications
Act of 1934, as amended (``Act''), 47 U.S.C. § 503(b)(2)(D).
6 See Coleman Enterprises, Inc., 15 FCC Rcd 24385 (2000);
and Natchez Communications, Inc., 15 FCC Rcd 4628 (Enf. Bur.
2000), recon. den., 15 FCC Rcd 18798 (Enf. Bur. 2000).
7 47 C.F.R. §§ 0.111, 0.311 and 1.80(f)(4).
8 47 U.S.C. § 504(a).