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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
A-O Broadcasting Corporation ) File No. EB-01-DV-334
)
Former Licensee of Station KTMN(FM)1 ) NAL/Acct. No.
200332800001
Cloudcroft, New Mexico ) FRN # 0005-0204-74
Facility ID #89049 )
FORFEITURE ORDER
Adopted: December 22, 2003 Released: December 29, 2003
By the Commission:
I. Introduction
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twenty-five thousand
dollars ($25,000) to A-O Broadcasting Corporation (``A-O''),
former licensee2 of FM radio station KTMN, Cloudcroft, New
Mexico, for willful and repeated violation of Sections 1.1310,
11.35, 73.1125, and 73.1400 of the Commission's Rules
(``Rules'').3 The noted violations involve A-O's failing to
comply with radio frequency radiation (``RFR'') maximum
permissible exposure (``MPE'') limits applicable to transmitters
on towers, failing to have EAS equipment installed and
operating, failing to maintain a main studio and failing to have
adequate transmission system control.
2. On November 18, 2002, the Commission issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to A-O for a
forfeiture in the amount of twenty-eight thousand dollars
($28,000).4 A-O filed its response to the NAL on December 18,
2002.
II. Background
3. On October 29, 2001, the FCC's Denver, Colorado Field
Office (``Denver Office'') received a complaint alleging that FM
broadcast station KTMN in Cloudcroft, New Mexico, was not
operating at its authorized power and was not in compliance with
the FCC's RFR tower guidelines due to the antenna's low
radiation center above ground level (``AGL''). KTMN was
authorized to operate on frequency 97.9 MHz with an effective
radiated power (``ERP'') of 100 kW operating with a center of
radiation equal to 18 meters AGL.5 The station license for KTMN
also included the following special operating conditions: (1)
``If the licensee makes any changes in facilities via
modifications of license application in accordance with 47
C.F.R. 73.1690(c), the subsequent Form 302-FM, application for
license, must include a revised RF field showing to demonstrate
continued compliance with the FCC guidelines''; (2) ``Warning
signs which describe the radiofrequency electromagnetic (``RF'')
field hazard must be posted at appropriate intervals. These
signs must be at least 8 meters distant from the base of the
tower. Measures must be taken so that persons who are
authorized access to the site are not exposed to levels in
excess of the FCC guidelines''; and (3) ``The permittee/licensee
in coordination with other users of the site must reduce power
or cease operation as necessary to protect persons having access
to the site, tower or antenna from radiofrequency
electromagnetic fields in excess of FCC guidelines.''6
4. On November 14, 2001, FCC agents from the Denver
Office conducted an inspection of the KTMN transmitting facility
in Cloudcroft, New Mexico. The agents found that the KTMN
transmitting antenna was side mounted approximately 13 meters
AGL on a United States Forest Service (``USFS'') fire lookout
tower at the authorized location. The top bay of the antenna
was level with the lookout platform. RFR warning signs were
placed on a 2.5 meter tall ground fence approximately three
meters from the base of the tower. The lookout tower was in a
gated and locked area approximately 30 meters from Forest
Service Road 175 (``FSR 175''). The agents also noted that
numerous vehicles used FSR 175 during the time that the agents
were at the KTMN site.
5. When the agents arrived at the transmitter site, the
station was not operating. KTMN's owner told the agents that
the station had been off the air for one week, following a
November 7, 2001, electrical surge which affected the
programming capabilities of KTMN. Upon the agents' request, the
owner turned the transmitter on to 40% of the authorized power
and transmitted an unmodulated carrier. The owner was not able
to achieve 100% authorized power and admitted the most the
station ever achieved was about 60% of the authorized power. At
40% of the authorized power, the agents found publicly
accessible areas outside the fence surrounding the lookout tower
that significantly exceeded the FCC's RFR MPE limits for the
general population. The agents also found numerous areas on the
stairway of the lookout tower in excess of both the public and
the occupational MPE limits. Inside the lookout platform, RFR
fields exceeded the public MPE limits. In particular, using
spatially averaged techniques to measure the RFR fields, the
agents found the following:
Location RFR as RFR Public % Over RFR
Measured by MPE Limit Public MPE
Agents (mW/cm2)7 Limit
(mW/cm2)
20 to 60 feet from 0.63 0.2 315
tower base
Lookout tower 3.08 0.2 1500
stairway
Lookout platform 0.7 0.2 350
area
6. The temporary special use permit issued by the USFS to
the owner of A-O expressly provided USFS personnel unrestricted
access to the structure. In addition, the agents spoke with
USFS personnel and determined that USFS rangers with access to
the lookout tower stairway and platform had no training with
respect to RFR and no knowledge of RFR exposure potential from
the radio transmitting antenna mounted just a few feet from
their fire lookout.
7. The agents also found that KTMN had no main studio, had
no EAS equipment installed and did not have adequate
transmission system control. Although KTMN's owner claimed the
transmitter building was the temporary main studio, the agents
observed that the transmitter building was within a locked fence
and, therefore, not accessible to the public; and that there was
little room, if any, for more than one person to move around in
the building. Additionally, the owner stated that he visited
the site every day, or every other day, but had no other
personnel present at the transmitter site when he was not there.
The owner told the agents that a permanent studio was being
constructed in downtown Alamogordo, but the building was
undergoing renovation. The agents observed EAS equipment in a
box in the transmitter building, but no EAS equipment was
installed or operational. The owner told the agents that he had
no monitoring equipment or remote control for the station, but
that he would monitor the station on a consumer-grade portable
receiver at his residence in Alamogordo to confirm the station
was on the air.
8. By letter dated November 20, 2001,9 A-O notified the
Commission that KTMN ceased transmitting on November 7, 2001, as
a result of a transient failure of the station's computer and
would remain silent in order to complete improved studio
facilities and to make some adjustments to its transmitting
facilities. On March 14, 2002, approximately four months after
KTMN suspended operations, A-O filed a request (amended on June
10 and 21, 2002) with the Media Bureau for special temporary
authority (``STA'') for KTMN to remain silent. In its STA
request, A-O stated that, in November 2001, the Denver Office
determined that KTMN's transmitting antenna on the USFS lookout
tower created a risk of excessive RF exposure to nearby persons;
that on March 4, 2002, the USFS requested that the transmitter
and antenna bays be removed from the authorized site; and that
it was negotiating with the USFS to relocate the transmitter to
a new site. On June 25, 2002, the Media Bureau granted A-O an
STA for KTMN to remain silent through November 7, 2002. On
August 22, 2002, A-O filed an application seeking authorization
to relocate the transmitter for KTMN to a new site.10 This
application was granted on September 30, 2002. Following the
termination on November 7, 2002, of A-O's license for KTMN by
the Media Bureau, A-O filed an application for a license to
operate at its new site on April 30, 2003, and for renewal of
that license on July 3, 2003. These applications were not
acceptable for filing because there was no currently authorized
station warranting a covering license or a license renewal.
Accordingly, on July 31, 2003, the Media Bureau dismissed both
of these applications as inadvertently accepted for filing.11
9. On November 18, 2002, the Commission issued a NAL to
A-O for a forfeiture in the amount of twenty-eight thousand
dollars ($28,000) for willful and repeated violation of Sections
1.1310, 11.35, 73.1125 and 73.1400 of the Rules. In its
response, filed on December 18, 2002, A-O seeks reduction or
cancellation of the proposed monetary forfeiture. A-O argues
that it did not willfully violate any FCC rule; that the
violations alleged in the NAL, ``do not relate to silent
stations''; that A-O's actions ``complied substantially'' with
Sections 1.1310, 11.35, 73.1125 and 73.1400 of the Rules; that
``the inspection was not conducted in accordance with the
Rules''; that A-O is unable to pay any forfeiture amount
whatsoever; that A-O has a record of overall compliance; that A-
O acted in good faith; that A-O was not required to have EAS
equipment installed because it was within a 60 day grace period;
that KTMN's transmitter site is ``not readily accessible to the
public''; that the Commission cannot now penalize A-O for
violation of the RFR rules after having reviewed A-O's RFR
analysis; and that the Commission ``articulated no rational
basis'' for specifying a $10,000 base forfeiture amount for
violation of Section 73.1310 of the Rules.
III. Discussion
10. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,12 Section
1.80 of the Rules,13 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 A-O'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.14
11. As demonstrated below, there is no basis for A-O's
claim that it has ``complied substantially'' with Sections
1.1310, 11.35, 73.1125 and 73.1400 of the Rules. Additionally,
we reject A-O's contention that, because KTMN was silent at the
time of the inspection, the violations alleged in this
proceeding are inapplicable to KTMN. The violations of Section
1.1310 of the Rules occurred between October 5 and November 7,
2001, while KTMN was operating. The violations of Sections
11.35, 73.1125 and 73.1400 were continuous violations that began
when KTMN was granted a license by the Commission on October 5,
2001, and operated the station and were continuing at the time
of our inspection on November 14, 2001.15
12. The violations discussed in this order either occurred
on more than one day or continued for more than one day.
Accordingly, we find below that they are repeated. 16
13. We also find no basis for A-O's claim that it
``committed no willful violation of any Commission rule.'' As
we stated in the NAL, the ``term `willful' as used in Section
503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly.'' 17 As demonstrated below,
A-O knowingly committed the acts leading to the violations
discussed in this Forfeiture Order and, accordingly, we find
below that the violations are also willful.
14. Section 1.1310 of the Rules requires licensees to
comply with RFR exposure limits. Table 1 in Section 1.1310
provides that the MPE limit for the general population from a
radio station operating in the frequency range 30-300 MHz is
0.200 mW/cm2 and the MPE limit for occupational or controlled
exposure from a station operating in this frequency range is 1
mW/cm2.
15. A-O certified in its construction permit and license
applications that operation of station KTMN in Cloudcroft, New
Mexico would comply with the FCC's RFR exposure limits and would
not require the filing of an Environmental Assessment.18 The
construction permit for KTMN authorized A-O to construct the
station with the antenna radiation center at 18 meters AGL.19
A-O certified in its application for a license to cover the
construction permit that the station was constructed as
authorized in the construction permit.20 However, A-O did not
construct KTMN as authorized. Because A-O did not construct
KTMN as authorized in the construction permit, we again reject
A-O's claim originally made in response to the Denver Office's
warning letter and reiterated in the response to the NAL that
the Commission cannot now penalize it for violation of the RFR
rules after having reviewed A-O's RFR analysis. The
Commission's review of the RFR analysis provided by A-O in its
construction permit application was based on A-O's
representation that the antenna would be mounted with a center
of radiation 18 meters AGL. The antenna was mounted at 13
meters AGL, rather than the authorized 18 meters AGL. As A-O
concedes, it did not submit a revised RF study to demonstrate
that an antenna mounted at 13 meters AGL would comply with the
RFR limits as required by KTMN's license. In its response to
the NAL, A-O claims it was unaware that its antenna was mounted
at 13 meters AGL As we recently reiterated, ``the Commission
has long held that licensees and other Commission regulatees are
responsible for the acts and omissions of their employees and
independent contractors and has consistently refused to excuse
licensees from forfeiture penalties where actions of employees
or independent contractors have resulted in violations.''21
Therefore, since A-O's antenna was mounted by either its
employees or its contractor, A-O is chargeable with its
employees' or contractor's knowledge of the location of the
antenna for the purpose of determining that the violation was
willful.22
16. The license for KTMN also included special operating
conditions requiring A-O to post RF warning signs at least eight
meters from the base of the tower and to reduce power or cease
operation as necessary to protect persons having access to the
site, tower or antenna from RFR fields in excess of FCC limits.
A-O did not comply with these conditions. Warning signs were
only found on a fence three meters from the base of the tower.
The USFS rangers who could access the tower and lookout were not
informed of the RFR hazard and were never instructed to contact
the licensee before accessing the stairway or lookout platform
on the tower. Additionally, contrary to the claim in A-O's
response to the NAL, the KTMN transmitter site is not remote and
is easily accessible to the general public by a gravel road
which can be used by two wheel drive vehicles.
17. The USFS rangers who had access to the lookout tower on
which KTMN's antenna was mounted had no training with respect to
RFR and no knowledge of the potential impact of RFR exposure.
Absent such training and knowledge, the rangers are considered
members of the general population. Furthermore, as noted above,
the area surrounding the KTMN transmitter site was readily
accessible to the general public. Thus, the RFR exposure limits
for the general population set forth in Section 1.1310 apply in
this case. Based on RFR modeling of the transmitter at the
authorized power and on-site measurements at 40% of the
authorized power, FCC agents determined that operation of KTMN
as constructed created RFR fields that exceeded the RFR exposure
limits for the general population. With the station operating
at only 40% of the authorized power,23 the FCC agents found
spatially averaged RFR fields which were more than 300% over the
limits for MPE by the public at distances of 20 to 60 feet from
the base of the tower, which includes areas outside of the fence
surrounding the lookout tower that were accessible to the
general public and within the lookout platform. In addition,
the agents found spatially averaged RFR fields which were more
than 1500% over the limits for maximum permissible exposure by
the public on the stairway leading to the lookout tower. Given
that the RFR fields exceeded the public MPE limits by more than
300% with the station operating at only 40% of authorized power
at the time of the inspection on November 14, 2001, it is clear
that KTMN was not in compliance with the MPE limits during its
operation at up to 60% of authorized power between October 5,
2001, when the license for KTMN was granted, and November 7,
2001, when A-O took the station off the air. Accordingly, based
on the evidence before us, we find that A-O willfully and
repeatedly violated Section 1.1310 of the Rules during the
period from October 5, 2001 and November 7, 2001 by exceeding
the RFR exposure limits for the general population and failing
to take measures to adequately prevent the public from accessing
areas that exceeded the RFR exposure limits.
18. Section 11.35(a) of the Rules states in part that all
broadcast stations are ``responsible for ensuring that EAS
Encoders, Decoders, and Attention Signal generating and
receiving equipment used as part of the EAS are installed so
that monitoring and transmitting functions are available during
the times that stations ... are in operation.''24 At the time
of inspection, no EAS equipment was installed or operational at
station KTMN. A-O argues in its response to the NAL, that it
was not required to have EAS equipment because it was within a
60 day grace period specified by Section 11.35(b) of the
Rules.25 Section 11.35(b) provides in pertinent part: ``If an
EAS Encoder or EAS Decoder becomes defective, the broadcast
station . . . may operate without the defective equipment
pending its repair or replacement for 60 days without further
FCC authority. Entries shall be made in the broadcast station
log . . . showing the date and time the equipment was removed
from service and restored to service.'' The 60 day grace period
is, therefore, applicable only when defective EAS equipment is
removed for repair or replacement. A-O does not claim that it
ever installed KTMN's EAS equipment or that A-O removed the EAS
equipment because it became defective. In fact, the EAS
equipment found at KTMN's transmitter site was still in its
original packaging and had apparently never been installed.
Based on the evidence, we find that A-O willfully and repeatedly
violated Section 11.35(a) of the Rules by failing to have EAS
equipment installed and operational.
19. Section 73.1125(a) of the Rules provides in pertinent
part that ``[e]ach AM, FM, or TV broadcast station shall
maintain a main studio at one of the following locations: (1)
within the station's community of license; (2) at any location
within the principal community contour of any AM, FM, or TV
Broadcast station licensed to the station's community of
license; or (3) within twenty-five miles from the reference
coordinates of the center of its community of license as
described in §73.208(a)(1).''26 In addition, the station's main
studio must serve the needs and interests of the residents of
the station's community of license. To fulfill this function, a
station must, among other things, maintain a meaningful
managerial and staff presence at its main studio.27 The
Commission has generally defined ``meaningful presence'' as
full-time managerial and full-time staff personnel and has
stated that there must be ``management and staff presence'' on a
full-time basis during normal business hours to be considered
``meaningful.''28 With respect to management personnel, the
Commission has stated that they need not be ``chained to their
desks'' but that they would be required to report to work at the
main studio on a daily basis, spend a substantial amount of time
there, and use the main studio as their ``home base.''29
Although A-O's owner stated that he was temporarily using KTMN's
transmitter building as a main studio, it is apparent that KTMN
had no main studio presence in the community at the time of the
inspection. The transmitter building was contained within a
locked fence and therefore was inaccessible to the public; there
was little room, if any, for more than one person to move around
in the transmitter building; there was no listing for KTMN or A-
O in the local telephone directory; and there was no public
inspection file. Moreover, A-O did not maintain a meaningful
management and staff presence at the transmitter site. In this
regard, A-O's owner told the agents that he visited the site
every day, or every other day, but had no other personnel
present at the transmitter site when he was not there.
Therefore, based on the evidence, we conclude that A-O failed to
maintain a main studio, in willful and repeated violation of
Section 73.1125 of the Rules.30
20. Licensees are also responsible for operating their
broadcast stations within tolerances specified by applicable
technical rules contained in this part and in accordance with
the terms of the station authorization. Section 73.1400 of the
Rules allows stations to employ various methods or levels of
transmission system monitoring and supervision to preclude out-
of-tolerance operation and to ensure compliance with the
transmission system control requirements of Section 73.1350. At
the time of the inspection, A-O's owner admitted that he did not
have ongoing supervision of the transmission system by a station
employee or other person designated by the licensee, did not
have an automatic transmission system to alert a contact person
in the event of a technical malfunction, and did not have a
remote control whereby the transmission system could be
monitored and controlled for compliance with Section 73.1350.
Use of a consumer-grade portable receiver to tune into the
station does not meet the transmission system monitoring and
control requirements of Section 73.1400. Based on the evidence,
we further find that A-O willfully and repeatedly violated
Section 73.1400 of the Rules by failing to have adequate
transmission system monitoring and control.
21. A-O claims that the inspection of KTMN ``was not
conducted in accordance with'' Section 73.1225(a) of the
Rules,31 because ``KTMN was not on the air and was not
conducting business'' at the time of the inspection. Section
73.1225(a) simply specifies the times at which broadcast station
licensees must make their stations available for inspection; it
is not the basis for the Commission's authority to inspect
broadcast stations. The basis for the Commission's authority to
inspect radio stations is Section 303(n) of the Act,32 which
gives the FCC authority to ``inspect all radio installations
associated with stations required to be licensed . . . .''
Section 303(n) authorized the inspection of KTMN, which A-O
permitted. Given the safety concerns in this case, it was
essential to inspect KTMN and it would have been a dereliction
of duty not to have done so. We conclude that the inspection
was proper.
22. A-O argues that we had ``articulated no rational
basis'' for specifying a $10,000 base forfeiture amount for
violation of Section 1.1310 of the Rules. We do not agree. The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines (``Forfeiture Policy Statement'')33 does not specify
a base forfeiture for violation of the RFR maximum permissible
exposure limits for transmitting tower antennas in Section
1.1310.34 However, as stated in the NAL, the Forfeiture Policy
Statement does specify a base forfeiture amount of $10,000 for
failure to comply with other public safety related rules, such
as prescribed antenna structure lighting and/or marking rules
related to public and private air navigation safety. Because of
the public safety nature of the RFR maximum permissible exposure
limits, it was entirely reasonable for us to conclude in the NAL
that a base forfeiture amount of $10,000 for failure to comply
with the RFR exposure limits is appropriate.
23. A-O claims to have a history of overall compliance. In
particular, A-O argues that KTMN was a ``new station'' which had
been constructed for only 44 days at the time of the inspection
and, therefore, A-O had no history of prior offenses. In fact,
a new station cannot claim a history of overall compliance.35
Accordingly, we find that no reduction is warranted on the basis
of a history of overall compliance.
24. A-O also argues that it cannot pay any forfeiture
amount because it has no revenues. The financial information
submitted by A-O does indeed indicate that A-O has no revenues.
However, this fact alone does not establish that A-O can pay
nothing. While a licensee's gross revenues is normally the
primary factor used to determine the licensee's ability to pay,
it is not the only factor. In this case, A-O was on the air for
such a brief period that it never had any revenues. In such a
situation, it is necessary to look at factors other than gross
revenues36 to determine the licensee's ability to pay. In a
related proceeding37 A-O has filed an application for review of
the Media Bureau's cancellation of its license for station KTMN.
The filing of that application for review implies that A-O has
sufficient resources to return KTMN to air and to operate it.
Additionally, A-O's application for a construction permit at a
new site38 and its subsequent license application for authority
to operate at the new site39 imply that A-O had sufficient funds
to reconstruct KTMN at the new site and did so. In order to
determine A-O's ability to pay the proposed monetary forfeiture,
it is necessary to know what resources are available to A-O -
e.g., A-O's lines of credit, A-O's liquid assets and the assets
and income of A-O's owner. Since A-O has not provided such
information, we are unable to determine that it cannot pay the
proposed forfeiture amount and we will not reduce the forfeiture
on the basis of A-O's inability to pay.
25. We find that A-O demonstrated good faith40 by
obtaining EAS equipment before the inspection and by starting
construction of a main studio before the inspection. A-O argues
that the 50% good faith reduction awarded in Rego, Inc.,41
requires reducing the portion of the forfeiture proposed for the
EAS and main studio violations by at least 50%. The reduction
awarded on the basis of good faith depends on the circumstances
of the particular case. 42 The circumstances in this case are
not the same as those in Rego. In Rego, the licensee ordered
new EAS equipment to replace the defective equipment installed
at the station whereas, in this case, there was EAS equipment
present at the station but it was not installed. Furthermore,
there was no main studio violation in Rego. We find the portion
of the forfeiture proposed for the EAS and main studio
violations should be reduced from $15,000 to $12,000 and the
total forfeiture amount from $28,000 to $25,000.
26. We have examined A-O'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
A-O willfully and repeatedly violated Sections 1.1310, 11.35,
73.1125, and 73.1400 of the Rules and that the appropriate
forfeiture amount is $25,000.
IV. Ordering Clauses
27. 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,43 A-O IS LIABLE FOR A MONETARY FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for failing to
comply with radio frequency radiation maximum permissible
exposure limits applicable to transmitters on towers, failing to
have EAS equipment installed and operating, failing to maintain
a main studio and failing to have adequate transmission system
control, in willful and repeated violation, respectively, of
Sections 1.1310, 11.35, 73.1125, and 73.1400 of the Rules.
28. 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.44
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. 200332800001 and FRN 0005-0204-74. 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.
29. IT IS FURTHER ORDERED THAT a copy of this FORFEITURE
ORDER shall be sent by Certified Mail, Return Receipt Requested
to A-O Broadcasting Corp., Attention: Robert Flotte, 3001 North
Florida Avenue, Alamogordo, New Mexico 88310-9794, and its
counsel, Paul Brown, Esq., Wood, Maines & Brown, Chartered, 1827
Jefferson Place, N.W., Washington, D.C. 20036.
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 The Commission's data base now lists the station call
sign as ``DKTMN'' to reflect its deletion.
2 On January 3, 2003, the Media Bureau notified A-O by
letter that its license for station KTMN expired on November 7,
2002, pursuant to Section 312(g) of the Communications Act of
1934, as amended (``Act''), 47 U.S.C. § 312(g), because of that
station's failure to transmit broadcast signals for a consecutive
12 month period. Letter to Paul H. Brown, Esq., 18 FCC Rcd 35
(Media Bureau 2003) (license forfeited and call sign deleted). By
its letter of March 11, 2003, the Media Bureau denied A-O's
petition for reconsideration. Letter to Paul H. Brown, Esq., 18
FCC Rcd 3818 (Media Bureau 2003). An application for review of
that action is pending.
3 47 C.F.R. §§ 1.1310, 11.35, 73.1125, and 73.1400.
4 A-O Broadcasting, Inc., 17 FCC Rcd 24184 (2002).
5 The Media Bureau (formerly the Mass Media Bureau) granted A-
O's application for a license to cover the construction permit
for Station KTMN on October 5, 2001 (File No. BLH-20010924AAM).
6 File No. BLH-20010924AAM.
7 This is the MPE limit for the general population set forth
in Section 1.1310 of the Rules for radio stations operating in
the frequency range 30-300 MHz. KTMN is licensed to operate on
97.9 MHz.
8 This value was the maximum limit of the meter, Narda 8718
and Type 8722 probe combination.
9 The Commission received this letter on January 9, 2002.
10 File No. BPH-20020822AAC.
11 A-O's petition for reconsideration of those dismissals is
now before the Media Bureau. (File Nos. BLH-20030703ACD and BRH-
20030703ACC). See also note 2, supra.
12 47 U.S.C. § 503(b).
13 47 C.F.R. § 1.80.
14 47 U.S.C. § 503(b)(2)(D).
15 We need not discuss whether the violations of Sections
11.35, 73.1125 and 73.1400 apply to KTMN's period of silence
because, in any event, these violations existed throughout
KTMN's period of operation from October 5 to November 7, 2001.
16 As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one day.
The Conference Report for Section 312(f)(2) indicates that
Congress intended to apply this definition to Section 503 of the
Act as well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
17 NAL at 24188. See also Section 312(f)(1) of the Act, 47
U.S.C. § 312(f)(1), which applies to violations for which
forfeitures are assessed under Section 503(b) of the Act and
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....'' and
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
18 See Section 1.1307(b) of the Rules.
19 The Media Bureau granted A-O's construction permit
application on September 24, 1998 (File No. BPH-19971030MG).
20 The Media Bureau granted A-O's license for station KTMN on
October 5, 2001 (File No. BLH- 20010924AAM).
21 See, e.g., Eure Family Limited Partnership, 17 FCC Rcd
21861, 21863-64 (2002) (internal quotation marks omitted) and
cases cited therein.
22 See Pinnacle Towers ,Inc., DA-03-2620 (Enf. Bur., released
August 11, 2003).
23 A-O indicated that it had operated at up to 60% of
authorized power. We use the lower 40% figure because that was
the power when the staff took measurements. The RFR problem
would have been even worse when the station operated at 41%-60%
of authorized power.
24 47 C.F.R. § 11.35(a).
25 47 C.F.R. § 11.35(b).
26 47 C.F.R. § 73.1125(a).
27 See Main Studio and Program Origination Rules, 2 FCC Rcd
3215, 3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
28 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 (1991), clarified, 7 FCC Rcd 6800 (1992) (``Jones
Eastern'').
29 7 FCC Rcd at 6802.
30 See B&C Kentucky, LLC, 16 FCC Rcd 9305 (Mass Media Bur.,
Video Services Div., 2001) (concluding that a television
licensee's transmitter building was not a main studio where no
employees regularly worked at that location, no production
equipment or station files were maintained there, and the
building was contained within a locked fence and therefore was
inaccessible to the public).
31 47 C.F.R. § 73.1225(a). This section provides that
``The licensee of a broadcast station shall make the station
available for inspection by representatives of the FCC during the
station's business hours, or at any time it is in operation.''
32 47 U.S.C. § 303 (n).
33 12 FCC Rcd 17087 (1997), recon denied, 15 FCC Rcd 303
(1999).
34 The fact that the Forfeiture Policy Statement does not
specify a base amount does not indicate that no forfeiture should
be imposed. The Forfeiture Policy Statement states that ``...
any omission of a specific rule violation from the ...
[forfeiture guidelines] ... should not signal that the Commission
considers any unlisted violation as nonexistent or unimportant.
Forfeiture Policy Statement, 12 FCC Rcd at 17099. The Commission
retains the discretion, moreover, to depart from the Forfeiture
Policy Statement and issue forfeitures on a case?by?case basis,
under its general forfeiture authority contained in Section 503
of the Act. Id.
35 See Bay Television, Inc., 10 FCC Rcd 11509 (1995) (six
months of radio station operation insufficient to establish a
history of overall compliance).
36 The Commission has long recognized that, although gross
revenues are the primary indicator of a licensee's ability to pay
a forfeiture, other financial indicators can be considered. See
PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1991).
37 See Letter to Paul H. Brown, Esq., fn 1, supra.
38 Granted September 30, 2002 (File No. BPH-20020822AAC).
39 Dismissed July 31, 2003 (File No. BLH-20030703ACD).
40 See Section 1.80(b)(4) of the Rules, 47 C.F.R. §
1.80(b)(4), Guidelines for Assessing Forfeitures, Part II,
Adjustment Criteria for Section 503 Forfeitures, Downward
Adjustment Criteria.
41 16 FCC Rcd 16795 (Enf. Bur. 2001).
42 See, e.g., Radio One, Inc.., 18 FCC Rcd 15964, 15965
((2003) (Less than 50% reduction for good faith efforts to
install EAS equipment).
43 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
44 47 U.S.C. § 504(a).