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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Power Radio Corporation ) File No. EB-04-SE-
273
Licensee of Radio Station KXPW-LP ) NAL/Acct. No.
200532100006
Georgetown, Texas ) FRN: 0006560650
Facility Identification Number 133411 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 8, 2004 Released:
December 10, 2004
By the Chief, Spectrum Enforcement Division, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Power Radio Corporation
(``Power Radio''), licensee of Low Power (``LP'') FM
broadcast station KXPW-LP in Georgetown, Texas, apparently
liable for a forfeiture in the amount of three thousand
dollars ($3,000) for willful violation of Section 73.875(c)
of the Commission's Rules (``Rules'').1 The noted violation
involves Power Radio's failure to file a modification of
license application on FCC Form 319 within ten days of
replacing its authorized antenna.
II. BACKGROUND
2. On June 4, 2004, the Media Bureau granted Power
Radio a license to cover the construction permit for station
KXPW-LP.2 The license authorizes the use of a CW CP-1000
Model antenna with three bays, at a latitude and longitude
of 30° 35' 30'' N and 097° 40' 44'' W, with a height of
radiation center above ground of 55 meters, an overall
height above ground level of 55 meters, and a height of
radiation center above average terrain (HAAT) of 87 meters.
On August 26, 2004, the Enforcement Bureau's Spectrum
Enforcement Division (``Division'') received a complaint
alleging that on August 24, 2004, Power Radio removed KXPW-
LP's authorized three-bay antenna and replaced it with a
four-bay antenna without obtaining prior Commission
authorization. On October 12, 2004, the Division sent Power
Radio a Letter of Inquiry (``LOI'') regarding its
installation of a replacement antenna for station KXPW-LP.3
3. In an October 18, 2004 response to the LOI, Power
Radio admitted that it installed a replacement antenna for
KXPW-LP on August 24, 2004 due to major problems and failure
of the existing antenna.4 Power Radio reported that the
replacement antenna is an Armstrong FMA-707 Model with four
bays and a full wave length spacing of 8.7 feet installed at
a latitude and longitude of 30° 35' 30'' N and 097° 40' 44''
W with a height of radiation center above ground level of
55.5 meters (182 feet), an overall height above ground level
of 59.7 meters (196 feet), and a height of radiation center
above average terrain (HAAT) of around 87 meters (285.4
feet). Power Radio asserted that due to a misunderstanding
with its engineering consultant, it did not know that it was
required to file anything with the FCC for replacing an
antenna with one that did not change the licensed HAAT by
more than two meters above or four meters below the
authorized value. On October 18, 2004, the same day that it
submitted its LOI response, Power Radio filed an FCC Form
319 notifying the Commission of the replacement antenna
installation for station KXPW-LP.5
III. DISCUSSION
4. Section 73.875 of the Rules prescribes the
procedures and restrictions that apply to licensee
modification of authorized LPFM transmission system
facilities. Section 75.875(c)(1) of the Rules provides that
LPFM facility modifications to replace an antenna with one
of the same or different number of antenna bays may be made
without prior authorization from the Commission provided the
height of the antenna radiation center is not more than 2
meters above or 4 meters below the authorized values.
However, a modification of license application on FCC Form
319 must be submitted to the Commission within 10 days of
commencing program test operations.6
5. Power Radio admitted in its LOI response that it
replaced its authorized three-bay antenna with a four-bay
antenna on August 24, 2004. Power Radio did not file an FCC
Form 319 notifying the Commission of this modification until
October 18, 2004, almost two months later. Accordingly,
based on the evidence before us, we find that Power Radio
willfully violated Section 73.875(c) of the Rules by failing
to submit the required form and information within 10 days
of commencing program test operations after installing a
replacement antenna for station KXPW-LP. Power Radio
asserted that due to a misunderstanding with its engineering
consultant, it was not aware that it was required to file
anything with the FCC. However, licensees are expected to
know and comply with the FCC's rules.7
6. Pursuant to 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) (``Forfeiture
Policy Statement''), the base forfeiture amount for failing
to file required forms is $3,000. In assessing the monetary
forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) of the
Communications Act of 1934 (``Act''), as amended, which
include the nature, circumstances, extent, and gravity of
the violation(s), 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 Applying the Forfeiture Policy Statement and
statutory factors to the instant case, we believe that a
$3,000 proposed forfeiture is warranted.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,9 and Sections 0.111, 0.311 and
1.80 of the Rules,10 Power Radio Corporation is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of three thousand dollars ($3,000) for violating
Section 73.875(c) of the Rules.
8. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules,11 within thirty days of the release date
of this Notice of Apparent Liability for Forfeiture, Power
Radio Corporation SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include
the NAL/Acct. No. and FRN No. referenced above. Payment by
check or money order may be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank
One/LB 73482, 525 West Monroe, 8th Floor Mailroom, Chicago,
IL 60661. Payment by wire transfer may be made to ABA
Number 071000013, receiving bank Bank One, and account
number 1165259. Request 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.
10. The response, if any, must be mailed to the Office
of the Secretary, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554, ATTN: Enforcement
Bureau - Spectrum Enforcement Division, and must include
the NAL/Acct. No. referenced in the caption.
11. The Commission 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; or (3) some other reliable and
objective documentation that accurately reflects the
petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
submitted.
12. Requests for payment of the full amount of this
NAL under an installment plan should be sent to: Chief,
Revenue and Receivable Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.12
13. IT IS FURTHER ORDERED THAT a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by first
class mail and certified mail, return receipt requested, to
Power Radio Corporation, P.O. Box 73, Georgetown, Texas
78627-0073.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
Division
Enforcement Bureau
_________________________
1 47 C.F.R. § 73.875(c).
2 File No. BLL - 230031211AAT.
3 See Letter from Joseph P. Casey, Chief Spectrum
Enforcement Division, Enforcement Bureau, to James
Aultfather, President, Power Radio Corporation (October 12,
2004).
4 See Letter from James Aultfather, President, Power Radio
Corporation, to Spectrum Enforcement Division, Enforcement
Bureau (October 18, 2004).
5 File No. BMLL - 20041018AAW.
6 Program test operations at the full authorized ERP may
commence immediately upon installation pursuant to Section
73.1620(a)(1) of the Rules, 47 C.F.R. § 73.1620(a)(1).
7 Sitka Broadcasting Co., Inc., 70 FCC 3d 2375, 2378 (1979),
citing Lowndes County Broadcasting Co., 23 FCC 2d 91 (1970)
and Emporium Broadcasting Co., 23 FCC 2d 868 (1970).
8 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy
Statement, 12 FCC Rcd at 17100-01 (discussion of upward and
downward adjustment factors).
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, 1.80.
11 47 C.F.R. § 1.80.
12 See 47 C.F.R. § 1.1914.