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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Pilgrim Communications, Inc. ) File Number: EB-01-DV-300
)
Licensee of Station KWYD(AM) ) NAL/Acct. No.
Colorado Springs, Colorado 200332800005
Facility ID # 51816 ) FRN 0006-1472-19
)
FORFEITURE ORDER
Adopted: May 17, 2004 Released: May 19, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of nineteen thousand dollars
($19,000) to Pilgrim Communications, Inc. ("Pilgrim"), licensee
of AM radio station KWYD in Colorado Springs, Colorado, for
willful and repeated violation of Sections 11.35, 73.1125(a),
73.1560(a) and 73.1745(a) of the Commission's Rules ("Rules").1
The noted violations involve Pilgrim's failure to have fully
operational Emergency Alert System ("EAS") equipment, its failure
to maintain the requisite main studio presence, its failure to
reduce KWYD's power at sunset to the nighttime level required by
the station authorization, its failure to increase KWYD's power
at sunrise to the daytime level required by the station
authorization, its exceeding KWYD's authorized nighttime power
level and its operation with power below the authorized daytime
power level.
2. On November 20, 2002, the Commission's Denver,
Colorado, Field Office (``Denver Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Pilgrim for a
forfeiture in the amount of nineteen thousand dollars ($19,000).2
Pilgrim responded to the NAL on January 21, 2003, and filed a
supplementary response on February 20, 2003.
II. BACKGROUND
3. Radio station KWYD is authorized to operate with 10,000
watts of power during daytime hours and 67 watts between sunset
and sunrise on frequency 1580 kHz. On August 21, 2001, an agent
from the Denver Office monitored KWYD and took numerous field
strength measurements at locations near the KWYD transmitter
between 7:10 p.m. to 9:00 p.m. MDT. According to its station
authorization, KWYD should have switched from daytime to
nighttime power at 8:00 p.m. The agent observed no change in the
field strength from 8:00 p.m. to 9:00 p.m. The agent concluded,
based on his observations and experience, that KWYD's power
appeared to remain at approximately the station's authorized
daytime level, 10,000 watts, throughout the monitoring period
(7:10 p.m. to 9:00 p.m) and did not decrease at 8:00 pm.
4. On August 22, 2001, from 5:40 a.m. to 9:30 a.m. MDT,
the agent again conducted numerous field strength measurements
near KWYD's transmitter. According to its station authorization,
KWYD should have switched from nighttime to daytime power at 6:15
a.m. The agent observed no change in the field strength at that
time and also observed that KWYD's field strength remained at
approximately the same level throughout the monitoring period.
After the monitoring, the agent inspected the station and
observed that KWYD was operating with a power of approximately
225 watts.3 Specifically, KWYD was operating with about 336% of
the authorized nighttime power level from 5:40 a.m. to 6:15 a.m.
and with about 2.25% of the authorized daytime power level from
6:15 a.m. to 9:30 a.m.
5. On the morning of August 22, 2001, when the agent
initially attempted to inspect the KWYD main studio at 490 Willow
Springs Road, Fountain, Colorado, the main studio was closed and
unstaffed. A sign on the door provided the name and telephone
number of the general manager, but indicated that, as of July 15,
2001, the studio was open by appointment only. After contacting
the general manager, the agent was able to complete the
inspection. During the inspection of KWYD, the agent found that,
although EAS equipment was installed, the EAS system was not
fully operational because it was not properly programmed.
Following the inspection and after KWYD's power had been raised
to 10,000 watts, the agent took a new field strength reading
which confirmed that KWYD had been operating with power of
approximately 10,000 watts on August 21, 2001.
6. On December 12, 2001, the Denver Office issued an NOV
to Pilgrim for the violations discovered on August 21 and 22,
2001, at station KWYD. In its response, Pilgrim stated that its
remote control system, which controls KWYD's power level, was not
programmed after KWYD's studio relocation in March 2001 but has
now been programmed. In addition, Pilgrim stated that the KWYD's
EAS equipment was also not programmed following the studio
relocation but has now been programmed. Pilgrim also stated that
it has hired a person to staff its main studio between 9:00 a.m.
and 5:00 p.m., Monday through Friday.
7. On November 20, 2002, the Denver Office issued a NAL to
Pilgrim for a forfeiture in the amount of nineteen thousand
dollars ($19,000). In its January 21, 2003, response to the NAL,
Pilgrim states that it has replaced KWYD's EAS system; that the
EAS system has been programmed and has a properly trained
operator; that the station is required to reduce power at night
and daily manual checks have been instituted to assure that KWYD
reduces its power at the proper times; and that KWYD's main
studio is staffed from 9:00 a.m. to 5:00 p.m. Monday through
Friday ``by a manager and a full time staff person.'' Pilgrim
requested cancellation on the basis of its correction of the
violations and its inability to pay the proposed monetary
forfeiture. Pilgrim filed a supplementary response on February
20, 2003, containing copies of its 1998, 1999, 2000 and 2001
federal income tax returns.
III. DISCUSSION
8. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),4 Section 1.80 of the Rules,5
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''). Section 503(b) of the Act
requires that the Commission, in examining Pilgrim's response,
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
such other matters as justice may require.6
9. Section 11.35(a) of the Rules requires that broadcast
stations have fully operational EAS equipment. The FCC agent's
investigation establishes that Pilgrim did not have fully
operational EAS equipment at its station between March 2001 and
August 22, 2001. Further, Pilgrim does not dispute that KWYD did
not have fully operational EAS equipment during this time. Based
on the facts before us, we find that Pilgrim willfully7 and
repeatedly8 violated Section 11.35(a) of the Rules.
10. Section 73.1560(a) of the Rules provides that AM
stations must be maintained as near as practicable to the
authorized antenna input power. Section 73.1745(a) of the Rules
states, in pertinent part, that no broadcast station shall
operate with power other than that specified and made a part of
the license unless otherwise provided in Part 73 of the Rules.
We find that Pilgrim did not reduce KWYD's power to the
authorized nighttime level at sunset on August 21, 2001; and did
not increase KWYD's power to the authorized daytime level at
sunrise on August 22, 2001 -- in willful and repeated violation
of Sections 73.1560(a) and 73.1745(a) of the Rules.
11. Section 73.1125(a) of the Rules requires that every
broadcast station licensee maintain a main studio for the
station. To serve the needs and interests of the residents of the
station's community of license, the licensee must maintain a
full-time staff and managerial presence during normal business
hours.9 We conclude that, from July 15 to August 22, 2001,
Pilgrim did not have a full time management and staff presence
during normal business hours at the main studio of station KWYD,
in willful and repeated violation of Section 73.1125(a) of the
Rules.
12. No mitigation is warranted on the basis of Pilgrim's
correction of the violations. 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.'' 10
13. Finally, Pilgrim argues that, if the proposed $19,000
forfeiture is imposed, it will be unable to pay that amount. In
support of its financial hardship claim, Pilgrim submits copies
of its 1998, 1999, 2000 and 2001 federal income tax returns.11
The Commission has determined that, in general, a licensee's
gross revenues are the best indicator of its ability to pay a
forfeiture.12 After reviewing the financial data submitted, we
find that the proposed monetary forfeiture should not be
cancelled or reduced. 13
14. We have examined Pilgrim'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 Pilgrim willfully and repeatedly violated Sections 11.35,
73.1125(a), 73.1560(a) and 73.1745(a) of the Rules and that
neither cancellation nor reduction of the proposed $19,000
monetary forfeiture is warranted.
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 Pilgrim Communications, Inc., IS LIABLE FOR A
MONETARY FORFEITURE in the amount of nineteen thousand dollars
($19,000) for willful and repeated violation of Sections 11.35,
73.1125(a), 73.1560(a) and 73.1745(a) 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.
200332800005 and FRN 0006-1472-19. 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 a copy of this Forfeiture
Order shall be sent by certified mail, return receipt requested,
to Pilgrim's counsel, Marnie K. Sarver, Esq., Wiley, Rein &
Fielding LLP, 1776 K Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35, 73.1125(a), 73.1560(a) and 73.1745(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332800005 (Enf. Bur., Denver Office, released November 20,
2002).
3 Apparently, at some time between 9:00 p.m. on August 21,
2001, and 5:40 a.m. on August 22, 2001, KWYD's power was reduced
from about 10,00 watts to about 225 watts.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 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, provides that ``[t]he term `willful,'
... 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 ....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
8 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).
9 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 and n.2 (1992), clarified, 7 FCC Rcd 6800 (1992).
10 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).
11 Since we consider only the three most recent federal
income tax returns, we are not considering the 1998 return.
12 See PJB Communications of Virginia, Inc., 7 FCC Rcd
2088, 2089 (1992).
13 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues). We
have reviewed Pilgrim's financial data in this case and another
case involving Pilgrim simultaneously and have determined it is
able to pay both forfeitures. Pilgrim Communications, Inc., DA
04-xxxx (Enf. Bur., released mm/dd/04).
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.