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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
Maria L. Salazar                 )    File No. EB-02-KC-174
Licensee, Station KTCM(FM)       )    NAL/Acct. No. 200232560011
Kingman, Kansas                  )    FRN 0003-7578-12


   Adopted:  March 10, 2004             Released:  March 16, 2004

By the Commission:  


            1.      By  this   Memorandum   Opinion   and   Order 
       (``Order''), we grant in  part and deny in part the  April 
       24, 2003, petition  for reconsideration filed by Maria  L. 
       Salazar,1  (``Salazar'')  licensee  of  Station  KTCM(FM), 
       Kingman, Kansas and owner of antenna structure #  1057462, 
       of the  Forfeiture Order  issued on April  22, 2003,2  and 
       reduce the assessed forfeiture against Salazar to  thirty-
       four  thousand  dollars ($34,000).  The  Forfeiture  Order 
       imposed a  monetary forfeiture  in the  amount of  thirty-
       nine  thousand  dollars  ($39,000)  against  Salazar,  for 
       willfully  and  repeatedly  violating  Sections  301   and 
       303(q)  of the  Communications Act  of 1934,  as  amended, 
       (the ``Act'')3  and Sections 11.35(a), 17.51,  73.1125(a), 
       73.1350(a) and 73.3526 of the Commission's Rules.  


            2.      On   April   8,   2002,   agents   from   the 
       Commission's Kansas  City, Missouri Field Office  (``Field 
       Office'') conducted  an on-site  investigation of  Station 
       KTCM(FM).   The   agents  determined   that  Salazar   was 
       licensed to operate Station KTCM(FM) and that the  license 
       specified Kingman,  Kansas as the  station's community  of 
       license.  However, the  agents found that the station  had 
       been  transmitting  from  the  Latino  Boom  Nightclub  in 
       Wichita,  Kansas  --  a  location  that  was  outside  its 
       community of license  and that had not been authorized  by 
       the Commission.4  Additionally, the agents found that  the 
       station's main studio  had been relocated to and had  been 
       originating programming from the Latino Boom Nightclub  -- 
       a relocation that  was outside the prescribed main  studio 
       perimeters  and  that  had  not  been  authorized  by  the 
       Commission.5   The  agents  further  found  that  the  top 
       flashing beacon and three of the four side lamps were  not 
       lit  on  the  station's  associated  antenna  structure  # 
       1057462, and that the outage had not been reported to  the 
       Federal  Aviation Administration  (``FAA'').   The  agents 
       also found  that station's  main studio did  not have  any 
       Emergency  Alert  System  (``EAS'')  equipment  installed.  
       Finally, the  agents found that  Station KTCM(FM) did  not 
       maintain any  public inspection  files.   At  the time  of 
       inspection,  Salazar did  not deny  the agents'  findings.  
       As  a result  of the  inspection, on  April 9,  2002,  the 
       agents   issued   Salazar   a   Warning   regarding    the 
       unauthorized  operation of  radio transmitting  equipment.  
       Salazar filed a timely response to the Warning.6

            3.      The Field  Office's investigation  culminated 
       in  the Commission's  issuance  of a  Notice  of  Apparent 
       Liability  for  Forfeiture  (``NAL'')7  that  proposed   a 
       $39,000  forfeiture  against  Salazar  for  her   apparent 
       willful and  repeated violations  of Sections  of the  Act 
       and the  Commission's Rules.   The NAL  proposed a  $4,000 
       forfeiture for  Salazar's apparent  violations of  Section 
       301 of the Act and Section 73.1350(a) of the  Commission's 
       Rules  (failure to  operate  a station  at  an  authorized 
       location),8   a   $10,000  forfeiture  for  her   apparent 
       violations of Section 303(q) of the Act and Section  17.51 
       of the Commission's Rules (failure to maintain  prescribed 
       obstruction lighting  for antenna  structure #  1057462),9 
       an  $8,000  forfeiture  for  her  apparent  violations  of 
       Section  11.35(a) of  the Commission's  Rules (failure  to 
       install  and  maintain Emergency  Alert  System  (``EAS'') 
       equipment),10  a   $7,000  forfeiture  for  her   apparent 
       violation of Section 73.1125(a) of the Commission's  Rules 
       (failure  to  maintain a  main  studio  at  an  authorized 
       location),11 and a  $10,000 for her apparent violation  of 
       Section  73.3526 of  the  Commission's Rules  (failure  to 
       maintain a public inspection file).12   

            4.      The Commission issued  a Forfeiture Order  on 
       April  22, 2003,13  having had  no record  of receiving  a 
       response to the NAL.14  On April 24, 2003, the  Commission 
       received Salazar's  petition for reconsideration.  In  her 
       petition,  Salazar  does  not  dispute  the   Commission's 
       findings  in   the  NAL.  As   discussed  below,   Salazar 
       nevertheless  seeks   a  substantial   reduction  in   the 
       assessed forfeiture, based upon her inability to pay,  her 
       unfamiliarity  with Commission  requirements, her  efforts 
       to correct the  noted violations, and her belief that  the 
       Commission's  base  forfeiture  scheme  is  arbitrary  and 


            5.      The  forfeiture  amount  in  this  case   was 
       assessed in accordance  with Section 503(b) of the  Act,15 
       Section  1.80  of   the  Rules,16  and  The   Commission's 
       Forfeiture Policy Statement and Amendment of Section  1.80 
       of the Rules  to Incorporate the Forfeiture  Guidelines.17  
       In examining  Salazar's petition, Section 503(b)(2)(D)  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.18   We 
       will  respond  to  each  of  Salazar's  claims  separately 

            6.      First, Salazar claims  she is  unable to  pay 
       the assessed forfeiture.19 Salazar describes herself as  a 
       single  mother, who  is the  sole support  for her  eleven 
       year-old son  and whose  income is solely  derived from  a 
       restaurant,20  and Station  KTCM.  According  to  Salazar, 
       the  station  has  lost  money  ``every  year  since   she 
       acquired it'' in  1996.21  Absent a substantial  reduction 
       in the forfeiture  amount, Salazar claims that she  likely 
       will be ``force[d] . . . to discontinue operating  Station 
       KTCM  .  . .  and  declare  personal  bankruptcy.''22   In 
       support of her  claim, Salazar submits her individual  tax 
       returns and Station KTCM's profit and loss statements  for 
       1999, 2000 and 2001.  

            7.      In analyzing an economic hardship claim,  the 
       Commission generally  has looked  to gross  revenues as  a 
       reasonable  and   appropriate  yardstick  in   determining 
       whether  a   violator  is   able  to   pay  the   assessed 
       forfeiture.23   Indeed,  the Commission  has  stated  that 
       where  the  violator's  gross  revenues  are  sufficiently 
       large, the fact that net losses are reported, alone,  does 
       not necessarily  signify an inability  to pay.24  We  note 
       that Salazar's 1999, 2000 and 2001 tax returns listed  the 
       restaurant  and the  station, claimed  no dependents,  and 
       reported    steadily   increasing    gross   income    and 
       particularly  significant  revenue  gains  in  2001.    We 
       further  note,  contrary  to  Salazar's  assertions,  that 
       Station KTCM's statements reflect that it only had a  loss 
       in  2000,  and that  it  had  profits in  1999  and  2001.  
       Having  reviewed  Salazar's  submitted  documentation,  we 
       find that her significant gross revenues reported in  2001 
       represent reliable and  objective evidence of her  ability 
       to  pay.   Therefore,    we  are  not  persuaded  that   a 
       substantial  reduction  of  the  forfeiture  is  warranted 
       However,  we  conclude that  a  modest  reduction  of  the 
       assessed  forfeiture   amount  for   the  multiple   noted 
       violations, from  $39,000 to $34,000,  is justified.   The 
       forfeiture,  as   reduced,  represents  a  percentage   of 
       Salazar's 2001 gross revenues comparable to that  assessed 
       against gross revenues in prior cases. ,25 

            8.    Second, Salazar claims that she was  unfamiliar 
       with the Commission's  Rules, and that, in FCC  compliance 
       matters, she ``exclusively'' relied upon and followed  the 
       advice  of  Charlie  Babbs,  since  deceased,  who  ``held 
       himself out  as a professional  and experienced  broadcast 
       engineer.''26   Specifically, Salazar  represents that  in 
       2000, upon Mr.  Babbs's recommendation, she relocated  the 
       operations and  the main studio of  Station KTCM from  the 
       authorized  site in  Kingman,  Kansas to  the  Latin  Boom 
       Nightclub  in  Wichita,  Kansas,  to  avoid   interference 
       problems, which  prevented the station's Spanish  language 
       programming   from   reaching   ``the   Spanish   speaking 
       residents of  Wichita and the  Wichita merchants that  the 
       [sic] patronized.''27   Salazar claims that Mr. Babbs  did 
       not advise her that it was ``illegal'' to operate from  an 
       unauthorized site,  that there  were any  main studio  and 
       public  file  requirements, and,  presumably,  that  there 
       were   also    antenna   structure   lighting   and    EAS 

            9.      A licensee is charged with the responsibility 
       of knowing and complying with all the requirements of  the 
       Act and the Commission's Rules.29  That responsibility  is 
       not lessened,  mitigated or excused  because the  licensee 
       relied  upon  the  erroneous  advice  of  an  employee  or 
       independent  contractor.30    Because  Salazar's   alleged 
       reliance  on the  consulting  engineer's advice  does  not 
       lessen,  mitigate  or  excuse  her  responsibility  to  be 
       familiar and comply  with the requirements of the Act  and 
       the Commission's  Rules, we  find no basis  to reduce  the 
       base forfeiture amounts assessed for each of the  multiple 
       noted violations. 

            10.     Third,  Salazar  claims  that   ``immediately 
       after  the FCC  inspection,'' she  ceased operations  from 
       the  unauthorized location,  sought  to remedy  the  other 
       noted violations,  and engaged  communications counsel  to 
       advise   her   in   FCC   compliance   matters.31      The 
       Commission's long  established policy finds that  remedial 
       measures, while commendable,  do not lessen, mitigate,  or 
       excuse past  infractions of  the Act  or the  Commission's 
       Rules32 -- particularly when such measures are  instituted 
       only  after   Commission  investigation   and  notice   of 
       violations.33  Thus, Salazar's subsequent remedial  action 
       provides no  basis to reduce  the base forfeiture  amounts 
       assessed for each of the multiple noted violations.

            11.     Finally,  while  Salazar   admits  that   she 
       operated  the  station  at  an  unauthorized  location  in 
       Wichita,  Kansas,   and  that  she   failed  to   maintain 
       prescribed antenna  structure lighting, EAS equipment  and 
       public information  files, she  contends the  Commission's 
       assessed  forfeiture amounts  are excessive.34   According 
       to  Salazar,   the  failure  to   maintain  a   reasonably 
       accessible  main  studio   and  to  maintain  any   public 
       information  file   material  (requirements  which   serve 
       ``some  valid  public  interest   purposes'')  ``pales  in 
       comparison to very  real and immediate harm to the  public 
       and the public interest'' that results from the  operation 
       of   an  unlicensed  station  (which  potentially,   ``and 
       likely  did, cause  interference''), unlit  towers  (which 
       ``posed a serious  risk to air navigation''), and lack  of 
       EAS   equipment   (which   precluded   emergency    system 
       participation).35    Salazar   concludes   that   it    is 
       ``arbitrary  and  capricious''  to  set  base   forfeiture 
       amounts for violations of the main studio and public  file 
       requirements  significantly  higher  than  those  set  for 
       violations of  the EAS equipment,  lighting and  licensing 

            12.     In adopting  the  forfeiture  guidelines  and 
       implementing rules, the  Commission stated that it  ``will 
       initially assess  . .  . violations  [of the  Act and  the 
       Commission's  Rules] at  the statutory  amount,'' but,  as 
       appropriate,  will  adjust  the  base  amount  upward   or 
       downward based  on the factors set  out in Section 503  of 
       the Act  and particular  facts presented  in each  case.37  
       Salazar's contentions notwithstanding, the Commission  has 
       rejected   arguments  that   characterize  violations   of 
       certain Rules, such  as the public information file  rule, 
       as minor and deserving of reduced forfeitures.38  We  find 
       Salazar's arguments unpersuasive,  and thus find no  basis 
       to reduce  the base forfeiture  amounts assessed for  each 
       of the multiple noted violations.39    


            13.     Accordingly, IT IS ORDERED that, pursuant  to 
       Section  405  of  the  Act40  and  Section  1.106  of  the 
       Rules,41 the Petition  for Reconsideration filed by  Maria 
       L. Salazar of  the Commission's April 22, 2003  Forfeiture 
       Order for  NAL No. 200232560011 IS  GRANTED TO THE  EXTENT 

            14.     Payment of  the $34,000  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.42  
       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.  200232560011 
       and FRN   0003-7578-12.  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. 20554.43  

            15.     IT IS  FURTHER ORDERED  that a  copy of  this 
       Order  shall be  sent by  First Class  and Certified  Mail 
       Return  Receipt   Requested  to  David  Tillotson,   Esq., 
       counsel for Maria L. Salazar, at 4606 Charleston  Terrace, 
       N.W., Washington, D.C. 20007-1911.

                              FEDERAL COMMUNICATIONS COMMISSION

                              Marlene H. Dortch

  - Unhandled Picture -  


1 The Commission received the pleading, captioned ``Petition  for 
Reconsideration,'' two days after it issued the Forfeiture  Order 
in this proceeding.  See Facsimile from David Tillotson, Esq.  to 
Ricardo  Durham,  Deputy  Division  Chief,  Spectrum  Enforcement 
Division, Enforcement Bureau,  Federal Communications  Commission 
(April 24,  2003)  (attaching  a  copy  of  the  pleading).   Mr. 
Tillotson provided  a date-stamped  copy of  the pleading,  which 
showed that it was filed on  August 12, 2002, within thirty  days 
of the release of  the Notice of Apparent  Liability in Maria  L. 
Salazar, 17  FCC Rcd  14090  (2002) (``NAL'').   The  Commission, 
however, has no record of receiving the pleading.  We will  treat 
and consider the  pleading as a  petition for reconsideration  of 
the Forfeiture Order under 47 C.F.R.  1.106.
2  Maria  L.  Salazar,  18  FCC  Rcd  7960  (2003)  (``Forfeiture 
3 47 U.S.C.  301, 303(q).  
4 The Latin Boom  Nightclub is located at  1514 West 21st  Street 
North, Wichita, Kansas.
5 Absent a Commission waiver,  a broadcast station's main  studio 
must be  maintained in  a reasonably  accessible location  (i.e., 
within the station's community  of license, within the  principal 
contour of  any  broadcast  station  licensed  to  the  station's 
community of  license,  or within  25  miles from  the  reference 
coordinates of  center of  the station's  community of  license).   
See 47 C.F.R.  73.1125(a)(1)-(3), (d)(2).  Here, Salazar  never 
sought and  the Commission  never granted  authorization to  move 
Station KTCM(FM)'s main studio to the Latin Boon Nightclub.   The 
Latin Boom Nightclub was outside Kingman, Kansas, was 12.6  miles 
outside the principal contour of Station KCVW(FM) (the only other 
broadcast station  licensed to  Kingman,  Kansas), and  was  41.9 
miles from the reference coordinates of Kingman, Kansas, and,  as 
such, was not located  within the parameters  of the main  studio 
6 See  Letter from  Maria L.  Salazar to  Federal  Communications 
Commission, Enforcement  Bureau, Kansas  City Office  (April  18, 
7 See note 1, supra.
8 47 U.S.C.  301; 47 C.F.R.  73.1350(a).
9 47 U.S.C.  303(q); 47 C.F.R.  17.51.
10 47 C.F.R.  11.35(a).
11 47 C.F.R.  73.1125(a).
12 47 C.F.R.  73.3526
13 See note 2,  supra.  
14 See note 1, supra.  
15 47 U.S.C.  503(b).
16 47 C.F.R.  1.80.
17 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303  (1999) 
(``Forfeiture Policy Statement'').  
18 47 U.S.C.  503(b)(2)(D).
19See Petition at 2.
20 The restaurant, the Taco Loco, is located at 2247 N. Broadway, 
Wichita, Kansas.   Salazar  represents that  the  restaurant  was 
destroyed by fire and has not reopened for lack of funds and lack 
of insurance.  See Petition at 4.   Field Office agents, however, 
have  reported  that  the  restaurant  was  only  been  partially 
destroyed by fire, has reopened, and is currently operating.  
21 Id. at 2.  
22 Id. at 6.
23 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 
 8 (1992); see also Forfeiture  Policy Statement, 12 FCC Rcd  at 
17106-07  43.
24 See, e.g., Local Long Distance, Inc., 15 FCC Rcd 24385 (2000), 
recon. denied, 16 FCC  Rcd 10023, 10025   6 (2001);  Independent 
Communications, Inc., 14 FCC Rcd 9605, recon. denied, 15 FCC  Rcd 
16060, 16060  2 (2000); PJB Communications of Virginia, Inc.,  7 
FCC Rcd 2088, 2089  8 (1992).
25  See Local Long  Distance, Inc., 16 FCC  Rcd at 10025, 6  and 
Hoosier Broadcasting Corp., 15 FCC Rcd at 8641, 7.  
26 Petition at 3.
27 Id.  at 2,  3.  In  this connection,  Salazar represents  that 
Translator  Station   K261BL,  which   caused  the   interference 
problems, has since ceased operations.  Id. at 4.  
28 Id. at 3.
29 See Forfeiture Policy Statement, 12 FCC Rcd at 17099  22; see 
also Seawest Yacht  Brokers, 9  FCC Rcd  6099, 6099   7  (1994); 
Wagenvoord Broadcasting Co., 35 FCC 361, 361-62  3 (1972);  L.T. 
Simes II and Raymond Simes, 18 FCC Rcd 8977, 8980  11 (Enf. Bur. 
2003); Maritel Mississippi River, Inc.  18 FCC Rcd 1481, 1484   
10 (Enf. Bur. 2003);  Joy Public Broadcasting  Corp., 14 FCC  Rcd 
11326, 11328  7 (CIB 1999). 
30 See L.T. Simes II and Raymond Simes, 18 FCC Rcd at 8980   11; 
Joy Public Broadcasting  Corp., 14 FCC  Rcd at 11328   7.  In  a 
similar case,  the  Commission rejected  a  request to  reduce  a 
forfeiture based  on  the  licensee's reliance  on  advice  of  a 
consulting   engineer,   since   deceased.    See      Wagenvoord 
Broadcasting Co., 35 FCC at 361-62  3.

31 Petition at 3-4.
32 See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871  14 
(2002); KGVL, Inc., 42 FCC 2d  258, 259 (1973); see also  Maritel 
Mississippi River, Inc., 18 FCC Rcd at 1484  10. 
33 See, e.g.,  Max Media  of Montana,  LLC, DA  03-3276, 2003  WL 
22387375  11 (Enf. Bur. October 21, 2003); East Tennessee  Radio 
Group, L.P., DA 03-868, 2003 WL 1526638  7 (Enf. Bur. March  26, 
34 See  Petition at 6-8.
35 Id. at 7.
36 Id. at 8.
37 See Forfeiture Policy Statement, 12 FCC Rcd at 17100  26.
38 Id. at  17104-05  39.  In this connection,  we note that  the 
Commission's public information file  and the main studio  rules, 
respectively,  safeguard  the  public's  ability  to  assess  the 
station's  service  and  to   meaningfully  participate  at   the 
station's renewal process, and ensure the station's accessibility 
to and  nexus  with  its  community,  to  serve  and  respond  to 
community programming needs.  See Forfeiture Policy Statement, 12 
FCC Rcd  at 17104-05    39; Amendment  of Sections  73.1125  and 
73.1130 of the  Commission's Rules, the  Main Studio and  Program 
Origination Rules for Radio and Television Broadcast Stations, MM 
Docket No.  860406,  2  FCC  Rcd  3215,  3219    36-38  (1987), 
modified, 3 FCC Rcd 5024 (1988).  As such, the public information 
and  main  studio  requirements  are  integral  components  of  a 
licensee's obligation to serve the public interest, and meet  its 
community service obligations.  See 47 U.S.C.  307(a).  
39 Indeed, given the gravity and duration of the violations,  the 
facts presented may  have warranted an  upward adjustment of  the 
base forfeiture amounts.  

40 47 U.S.C.  405.
41 47 C.F.R.  1.106.
42 47 U.S.C.  504(a).
43 See 47 C.F.R.  1.1914.