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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Clarke Broadcasting Corporation ) File No. EB-02-SF-468
Former Licensee of Station KTIQ (AM) )
Merced, California ) NAL/Acct. No.
200232960001
Facility ID # 87180 )
) FRN 0003-7254-54
FORFEITURE ORDER
Adopted: September 16, 2003 Released: September 18,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order
(``Order''), we issue a monetary
forfeiture in the amount of six
thousand dollars ($6,000) to
Clarke Broadcasting Corporation
(``Clarke''), for willful
violations of Sections
73.1350(a), 73.1350(c) and
73.1400 of the Commission's Rules
(``Rules'') and for willful and
repeated violations of Sections
73.1560(a) and 73.1745(a) of the
Rules.1 The noted violations
involve Clarke's failure to
provide adequate transmitter
control and to maintain the
authorized power.
2. On August 30, 2002, the
Commission's San Francisco,
California, Field Office (``San
Francisco Office'') issued a
Notice of Apparent Liability for
Forfeiture (``NAL'') to Clarke
for a forfeiture in the amount of
seven thousand dollars ($7,000).2
Clarke filed its response to the
NAL on September 26, 2002.
II. BACKGROUND
3. Clarke is the former licensee
of AM broadcast station KTIQ,
formerly KAXW, in Merced,
California.3 On August 24, 2001,
the San Francisco Office received
a complaint indicating that
station KTIQ was interfering with
the operation of another station
because of its KTIQ's power was
not being reduced after sunset.
According to its license KTIQ was
required to reduce its operating
power from 10 kilowatts to one
kilowatt at 4:45 p.m. Pacific
Standard Time during the month of
November. On November 6, 7, 13,
21, 22, 23, 28 and 29, 2001, FCC
agents from the San Francisco
Office monitored KTIQ's signal
between 4:30 and 5:00 p.m. and
determined on each date that
KTIQ's power was not reduced at
4:45 p.m. On November 13, 22, 23
and 29 the agents observed that
KTIQ's field intensity did not
decrease between 4:30 and 5:00
p.m.
4. On December 4, 2001, agents
from the San Francisco Office
inspected station KTIQ. The
agents determined that KTIQ's
antenna input power was 87.3% of
the authorized level.4 Logs
obtained during the inspection
indicate that station personnel
did not timely reduce power at
4:45 p.m. on two occasions during
November 20015 and that there was
no power reduction at all on
November 22, 23, 24 and 25, 2001,
when all station personnel were
on leave and the station's
operation was unattended.
5. The agents determined during
the inspection that KTIQ's remote
control system was not programmed
to alert the operator when the
station's frequency was out of
tolerance and was not calibrated
to provide accurate indications
of the antenna input power.
6. On February 13, 2002, the San
Francisco Office issued an NOV to
Clarke for violations detected
during its investigation,
including Sections 73.1350(a),
73.1560(a) and 73.1745(a) of the
Rules. On March 6, 2002, Clarke
responded to the NOV indicating
that it had corrected the
violations.
7. On August 30, 2002, the San
Francisco Office issued a NAL for
a forfeiture in the amount of $
7,000 to Clarke for willful
violation of Sections 73.1350(a),
73.1350(c) and 73.1400 of the
Rules and repeated and willful
violation of Sections 73.1560(a)
and 73.1745(a) of the Rules. The
San Francisco Office calculated
the forfeiture amount on the
basis of a $4,000 base amount for
exceeding power limits and $3,000
for failure to provide adequate
transmitter control.
8. Clarke responded to the NAL on
September 26, 2001, seeking
cancellation or reduction of the
proposed monetary forfeiture.
Clarke does not dispute that it
willfully violated Sections
73.1350(a), 73.1350(c) and
73.1400 of the Rules and
willfully and repeatedly violated
Sections 73.1560(a) and
73.1745(a) of the Rules. Rather,
it argues that the forfeiture
should be cancelled or reduced
because it had no intent to
violate the Rules, acted in good
faith, has a history of overall
compliance and took prompt
remedial action following the
inspection. Clarke also argues
that it is ``a small, privately
owned company and the amount of
the forfeiture is significant to
an operator of Clarke's size.''
III. DISCUSSION
9. The proposed forfeiture amount
in this case was assessed in
accordance with Section 503(b) of
the Communications Act of 1934,
as amended (``Act''),6 Section
1.80 of the Rules,7 and 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) (``Policy
Statement''). In examining
Clarke's response, Section 503(b)
of the Act requires that the
Commission take into account the
nature, circumstances, extent and
gravity of the violation and,
with respect to the violator, the
degree of culpability, any
history of prior offenses,
ability to pay, and other such
matters as justice may require.8
10. Clarke asserts that its
violations ``resulted primarily
from the actions taken and
inactions under the station's
former Chief Operator'' whom
Clarke replaced on the day before
the inspection. We find that
Clarke's replacement of the Chief
Operator prior to the inspection
demonstrates good faith and
warrants mitigation of the
proposed monetary forfeiture to
$6,000.
11. No mitigation is warranted for
a history of overall compliance.
On August 2, 2001, the San
Francisco Office issued an NOV to
Clarke for violations of Sections
11.35(a), 11.52(d), 11.61(a) and
73.182(a)(1) of the Rules9 (radio
stations KVLM and KZSQ, Sonora,
California) and, on August 16,
2001, the San Francisco Office
issued an NOV to Clarke for
violations of Section 11.52(b)
and 73.182(a)(1) of the Rules
(radio station KKBN, Sonora,
California). Clarke, therefore,
has no history of overall
compliance.10
12. Nor is mitigation warranted on
the basis of Clarke's correction
of the violations after being
notified. As the Commission
stated in Seawest Yacht Brokers,
9 FCC Rcd 6099, 6099 (1994),
``corrective action taken to come
into compliance with Commission
rules or policy is expected, and
does not nullify or mitigate any
prior forfeitures or
violations.'' 11 Clarke cites
Preferred Entertainment, Inc.,12
as authority for reducing a
monetary forfeiture on the basis
of corrective action. Preferred
Entertainment, Inc., however, is
inapposite because, in that case,
the licensee reported its own
violations to the Commission and
took corrective action upon its
own initiative.
13. Clarke's argument that the
proposed forfeiture is
``significant for an operator of
Clarke's size'' also does not
warrant a reduction in the
forfeiture amount. The
Commission takes the size of a
business into account by
evaluating the company's ability
to pay the forfeiture on the
basis of documentation provided
by the company.13 As explicitly
stated in the NAL, we 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. Since Clarke
did not provide any financial
documentation whatsoever, we
cannot determine whether it is
unable to pay the proposed
forfeiture.
14. We have examined Clarke's
response to the NAL pursuant to
the statutory factors above, and
in conjunction with the Policy
Statement as well. As a result
of our review, we conclude that
Clarke willfully and repeatedly
violated Sections 73.1560(a) and
73.1745(a) of the Rules and
willfully violated Sections
73.1350(a), 73.1350(c) and
73.1400 of the Rules. We find
that there is no basis for
cancellation or reduction of the
proposed monetary forfeiture.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED
that, pursuant to Section 503(b)
of the Act, and Sections 0.111,
0.311 and 1.80(f)(4) of the
Rules,14 Clarke IS LIABLE FOR A
MONETARY FORFEITURE in the amount
of six thousand dollars ($6,000)
for willful and repeated
violation of Sections 73.1560(a)
and 73.1745(a) of the Rules and
willful violation of Sections
73.1350(a), 73.1350(c) and
73.1400 of the Rules
16. Payment of the forfeiture
shall be made in the manner
provided for in Section 1.80 of
the Rules within 30 days of the
release of this Order. If the
forfeiture is not paid within the
period specified, the case may be
referred to the Department of
Justice for collection pursuant
to Section 504(a) of the Act.15
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
reference NAL/Acct. No.
200232960001 and FRN 0003-7254-
54. Requests for full payment
under an installment plan should
be sent to: Chief, Revenue and
Receivables Group, 445 12th
Street, S.W., Washington, D.C.
20554.16
17. IT IS FURTHER ORDERED that
copies of this Order shall be
sent by Certified Mail Return
Receipt Requested and by First
Class Mail to Clarke Broadcasting
Corporation, 1175 Fairview Drive,
Suite N, Carson City, NV 89701,
and to its counsel, Christopher
J. Sova, Esq., Leventhal, Senter
& Lerman, P.L.L.C. , 2000 K
Street, N.W., Suite 600,
Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 73.1350(a), 73.1350(c), 73.1400, 73.1560(a) and
73.1745(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232940006 (Enf. Bur., San Francisco Office, released July 31,
2002).
3 The station's call sign was changed from KAXW to KTIQ on
February 12, 2002. On May 24, 2002, the Commission granted an
application for the assignment of KTIQ from Clarke to Mapleton
Communications, LLC. That assignment was consummated on June 1,
2002
4 As indicated in the Notice of Violation (``NOV'') issued on
March 6, 2002, a log obtained during the inspection indicates
that the antenna input power between 89% of the authorized level
on November 2, 2001; 89% on November 9, 2001; 86% on November 16,
2001; 86% on November 20, 2001; 117% November 26, 2001; 118% on
November 27, 2001; 122% on November 28, 2001; 117% on November
29, 2001; and 118% on November 30, 2002.
5 As indicated in the NOV issued March 6, 2002, KTIQ's power
was reduced at 4:56 p.m. on November 7, 2001, and at 5:01 p.m.on
November 13, 2001.
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 47 C.F.R. §§ 11.35(a), 11.52(d), 11.61(a) and 73.182(a)(1).
10 Clarke cites Tarrant Radio Broadcasting, Inc., 17 FCC Rcd
16671 (Enf. Bur. 2002), as authority for finding a history of
overall compliance when the licensee owned the station for only
three months. Tarrant Radio Broadcasting is inapposite because,
in that case, the history of compliance was not negated by the
issuance of NOVs.
11 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
12 14 FCC Rcd 11105 (1999).
13 See Policy Statement at 17107.
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.