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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Leighton Enterprises, Inc. ) File No. EB-04-IH-0492
) NAL/Acct. No. 200532080128
Licensee of Station KBOT(FM), ) FRN 0002589216
Pelican Rapids, Minnesota ) Facility ID No. 51059
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 17, 2005 Released: March 17,
By the Chief, Investigations and Hearings Division:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Leighton Enterprises, Inc.
(``Leighton''), licensee of Station KBOT(FM), Pelican
Rapids, Minnesota, has apparently violated section 73.1201
of the Commission's rules1 by willfully and repeatedly
broadcasting station identification announcements that did
not contain the required call sign followed by the station's
community of license. Based on our review of the facts and
circumstances in this case, we conclude that Leighton is
apparently liable for a forfeiture in the amount of $5,000.
2. On September 1, 2004, the Enforcement Bureau
received a complaint alleging that Station KBOT(FM) had
violated section 73.1201 of the Commission's rules.
Specifically, the complainant alleges that since September
2003, Station KBOT(FM) changed its station identification
announcements by substituting a promotional message for the
station's call letters and community of license. The
complainant states that she notified Leighton of its failure
to comply with section 73.1201, but that the station did not
revise its announcements.
3. In response to an Enforcement Bureau letter of
inquiry,2 Leighton states that, due to an inadvertent
programming error, since September 22, 2004, there have been
many instances in which Station KBOT(FM) broadcast station
identification announcements that did not contain the call
letters and its community of license.3 Leighton concedes
that, with the exception of a three-hour window of live
programming each day, all of its station identification
announcements were deficient from September 22 until
December 7, 2004, when Leighton corrected its station
identification announcement to include the required call
letters and the community of license. Leighton states that
since that date, Station KBOT(FM) has broadcast station
identification announcements that comply with section
73.1201 at all times. Leighton does not acknowledge any
station identification problems prior to September 2004.
Leighton provided a compact disc recording of the corrected
· 4. Section 73.1201 of the Commission's rules
provides that the ``[o]fficial station identification shall
consist of the station's call letters immediately followed
by the community or communities specified in its license as
the station's location'' and shall be broadcast at the
beginning and ending of each time of operation, and hourly
as close to the hour as feasible.4 Leighton acknowledges
that it broadcast deficient station identification
announcements 21 times per day over a 10-week period.
Therefore, we find that Leighton apparently violated section
73.1201 of the Commission's rules by willfully and
repeatedly broadcasting station identification announcements
that did not include the station's call letters immediately
followed by the station's community of license.
5. Section 503(b) of the Communications Act of 1934,
as amended (the ``Act'')5 and section 1.80(a) of the
Commission's rules6 provide that any person who willfully or
repeatedly fails to comply with the provisions of the Act or
the Commission's rules shall be liable for a forfeiture
penalty.7 Based upon the evidence before us, we find that
Leighton willfully and repeatedly broadcast station
identification announcements in apparent violation of
section 73.1201 of the Commission's rules. Section 1.80 of
the Commission's rules sets a base forfeiture amount of
$1,000 for the failure to broadcast a compliant station
identification announcement. In assessing a monetary
forfeiture, we take into account the statutory factors set
forth in Section 503(b)(2)(D) of the Act.8 Those factors
include 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.9 We note
that, by Leighton's admission, the violations occurred 21
times per day over a 10-week period and did not terminate
until December 7, 2004, after Leighton received the
Enforcement Bureau's Letter of Inquiry. Taking into account
this fact, and the fact that the station management had been
notified of its deficient announcements well before it
ceased the violations, we find that under the Commission's
case law, the violation justifies an upward adjustment of
$4,000, for a total proposed forfeiture of $5,000.10
6. We note Leighton's corrective actions to revise its
station identification announcements in order to comply with
section 73.1201. As the Commission has held previously,
however, a licensee's post-investigation remedial efforts
are irrelevant to our consideration of the appropriate
penalty in a forfeiture proceeding.11
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and sections 0.111, 0.311 and 1.80 of the
Commission's Rules,12 Leighton Enterprises, Inc. is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of $5,000 for willfully and repeatedly broadcasting
station identification announcements in violation of section
73.1201 of the Commission's rules.
8. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's rules,13 within thirty days of this
NOTICE OF APPARENT LIABILITY, Leighton Enterprises, Inc.,
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 must be made by
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, Illinois 60661.
Payment by wire transfer may be made to ABA Number
071000013, receiving bank Bank One, and account number
10. The response, if any, must be mailed to William H.
Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Room 4-C330, Washington, D.C. 20554 and
MUST INCLUDE THE NAL/Acct. No. referenced above.
11. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent 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
respondent's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
12. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.14
13. IT IS FURTHER ORDERED that the complaint filed
on September 1, 2004, IS GRANTED to the extent set forth
herein and IS OTHERWISE DENIED.15
14. IT IS FURTHER ORDERED that this Notice of Apparent
Liability for Forfeiture shall be sent, by Certified Mail,
Return Receipt Requested, and U.S. First Class mail, to John
Wells King, Esq., Garvey Schubert Barer, 5th Floor, Flour
Mill Building, 1000 Potomac Street, N.W., Washington, D.C.
20007 and by U.S. First Class mail to Leighton Enterprises,
Inc., P.O. Box 1458, St. Cloud, Minnesota 56302.
FEDERAL COMMUNICATIONS COMMISSION
William H. Davenport
Chief, Investigations and Hearings
1 47 C.F.R. § 73.1201.
2 Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
to Leighton Enterprises, Inc., dated November 22, 2004.
3 Letter from John J. Sowada, President, Leighton
Enterprises, Inc., to William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
dated December 14, 2004.
4 47 C.F.R. § 73.1201.
5 47 U.S.C. § 503(b).
6 47 U.S.C. § 1.80(a).
7 47 U.S.C. §503(b)(1)(B); 47 C.F.R. §1.80(a)(1). Section
312(f)(1) of the Act defines willful as ``the conscious and
deliberate commission or omission of [any] act,
irrespective of any intent to violate'' the law. 47 U.S.C.
§312(f)(1). The legislative history to section 312(f)(1)
of the Act clarifies that this definition of willful
applies to both sections 312 and 503(b) of the Act, H.R.
Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982), and the
Commission has so interpreted the term in the section
503(b) context. See, e.g., Application for Review of
Southern California Broadcasting Co., Memorandum Opinion
and Order, 6 FCC Rd 4387, 4388 (1991) (``Southern
California Broadcasting Co.''). The Commission may also
assess a forfeiture for violations that are merely
repeated, and not willful. See, e.g., Callais Cablevision,
Inc., Grand Isle, Louisiana, Notice of Apparent Liability
for Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage).
``Repeated'' merely means that the act was committed or
omitted more than once, or lasts more than one day.
Southern California Broadcasting Co., 6 FCC Rcd at 4388, ¶
5; Callais Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 503(b)(2)(D). See also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087, 17100-01 (1997) (``Forfeiture Policy
Statement''), recon. denied, 15 FCC Rcd. 303 (1999).
10 See Bay Broad. Corp., 15 FCC Rcd 9387 (2000) (proposing
$1,500 forfeiture for failure to broadcast sufficient
station identification announcements for two days.)
11 See, e.g., AT&T Wireless Services, Inc., Memorandum
Opinion and Order, 17 FCC Rcd 21866, 21871 (2002); Mid-
Missouri Broadcasting, Inc., 19 FCC Rcd 22900 (2004).
12 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.
13 47 C.F.R. § 1.80.
14 See 47 C.F.R. § 1.1914.
15 For purposes of the forfeiture proceeding initiated by
this NAL, Leighton Enterprises, Inc. shall be the only