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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.
Cloudcroft, New Mexico ) FRN # 0005-0204-74
Facility ID #89049 )
MEMORANDUM OPINION AND ORDER
Adopted: December 28, 2004 Released: January 3, 2005
By the Commission:
1. In this Memorandum Opinion and Order (``Order''), we
deny a petition for reconsideration filed by A-O
Broadcasting Corporation (``A-O''), former licensee2 of
FM radio station KTMN, Cloudcroft, New Mexico, of our
Forfeiture Order issued December 29, 2003,3 in the
amount of twenty-five thousand dollars ($25,000) for
willful and repeated violation of Sections 1.1310,
11.35, 73.1125, and 73.1400 of the Commission's Rules
(``Rules'').4 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
Emergency Alert System (``EAS'') equipment installed and
operating, failing to maintain a main studio, and
failing to have adequate transmission system control.
2. On November 14, 2001, agents from the FCC's Denver,
Colorado Field Office (``Denver Office'') investigated a
complaint against KTMN alleging that the station was not
operating at its authorized power and was not in
compliance with the FCC's RFR tower guidelines. As part
of the investigation, the agents conducted an inspection
of KTMN's transmitting facility in Cloudcroft, New
Mexico.5 The agents, relying on a laser range finder,
found that the KTMN transmitting antenna was
approximately five meters below the authorized level on
a United States Forest Service (``USFS'') fire lookout
tower. The top bay of the antenna was level with the
lookout platform. The lookout tower was in a gated and
locked area approximately 30 meters from Forest Service
Road 175. USFS personnel had unrestricted access to
the lookout tower.
3. 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 its 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 by over 200%. The
agents also found numerous areas on the stairway of the
lookout tower in excess of the public MPE limits by over
1400%. Inside the lookout platform, RFR fields exceeded
the public MPE limits by over 200%.
4. On November 18, 2002, the Commission issued a Notice of
Apparent Liability (``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.6 In its
response, filed on December 18, 2002, A-O sought
reduction or cancellation of the proposed monetary
forfeiture. A-O argued 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. On December
29, 2003, we issued a Forfeiture Order to A-O imposing a
forfeiture of $25,000 for the violations alleged in the
NAL. In the Forfeiture Order, we rejected all of A-O's
arguments except the ``good faith'' argument and,
because A-O demonstrated good faith by obtaining EAS
equipment before the inspection of KTMN and by starting
construction of a main studio before the inspection, we
reduced the portion of the forfeiture proposed for the
EAS and main studio violations from $15,000 to $12,000.
5. In its petition for reconsideration of the Forfeiture
Order, filed January 28, 2004, A-O argues that the
violations noted in the Forfeiture Order ``were the
direct result of FCC actions''; that the Commission
granted KTMN's construction permit (for its original
site) after A-O's ``detailed disclosure of the nature of
the proposed facility''; that the ``alleged five meter
difference [between the authorized level of A-O's
antenna and the lower level observed by FCC agents] is
not material to the existence of excessive RF levels'';
that the Commission has never demonstrated ``by anything
other than the say-so of FCC agents'' that A-O's antenna
was not mounted at its authorized level; that A-O's
owner ``had no reason to suppose'' that A-O's antenna
was mounted lower than authorized; that, by suspending
the operation of KTMN, A-O ``was doing what it could to
avoid any prohibitive RF exposure''; that KTMN did not
broadcast continuously between October 5 and November 7,
2001, but operated for ``less than 40 hours total'';
that it was not required to have a main studio or
functional EAS equipment because it was silent; that it
is a victim of entrapment; and that it is unable to pay
the assessed forfeiture.
6. In addition to the instant proceeding, we note that A-O
has a relevant parallel proceeding regarding its
operation of station KTMN currently before the Media
Bureau. Specifically, by letter filed with the
Commission on January 9, 2002, 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 new 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 RFR 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.7 This application
was granted on September 30, 2002. Following a finding
by the Media Bureau that A-O's license for KTMN
cancelled automatically as of 12:01 a.m. November 8,
2002, for extended silence,8 A-O filed an application
for a license to cover the facilities constructed at the
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.9 On April 13 and 15,
2004, A-O filed applications for an STA to construct and
operate a radio station at its new site.10
7. We reject A-O's contention that the violations noted in
the Forfeiture Order resulted from the FCC agents'
request for test transmissions on November 14, 2001,
while KTMN was silent. All of the violations that
served as the basis for the Forfeiture Order occurred
during KTMN's period of operation between October 5,
2001 (the date the Commission granted the license for
KTMN), and November 7, 2001 (the date A-O said it
discontinued operation of KTMN).11 Therefore, the
violations, some of which were the subject of a
complaint to the FCC, had already occurred at the time
of the test transmissions and were not the result of the
agents' request for test transmissions.
8. We also reject A-O's implication that our imposition of
a forfeiture for A-O's RFR violations (Section 1.1310)
is inconsistent with the prior grant of a construction
permit on the basis of A-O's ``detailed disclosure of
the nature of the proposed facility.'' We sufficiently
addressed this argument in the Forfeiture Order12 and A-
O has raised nothing new.
9. Additionally, we reject A-O's claim that the ``alleged
five meter difference [between the authorized level of
A-O's antenna and the lower level observed by FCC
agents] is not material to the existence of excessive RF
levels.'' A-O provides no basis for its claim. The
agents' measurements and calculations with A-O's antenna
at 13 meters, however, show that the five meter
difference did, in fact, lead to an excessive RFR level
on the ground. Further, the terms and conditions upon
which A-O's license was granted were based on A-O's
representation in its application that the antenna
would be mounted at 18 meters AGL.
10. A-O implies that our finding that its antenna was not
mounted at its authorized level is inadequately
supported because it is based solely on the information
from FCC agents. The agents determined the level of A-
O's antenna through the use of a laser range finder. We
find that this evidence adequately supports our finding
that A-O's antenna was not mounted at its authorized
level. A-O provides no contrary evidence.
11. We reject A-O's contention that its owner ``had no
reason to suppose'' A-O's antenna was mounted lower than
authorized. We sufficiently addressed this argument in
the Forfeiture Order,13 and A-O has raised nothing new
with respect to it.
12. A-O's claim that it ``was doing what it could to avoid
any prohibitive RF exposure'' when it suspended the
operation of KTMN on November 7, 2001, is not
credible.14 This is the first time A-O has made such a
claim. On November 14, 2001, A-O's President stated to
the FCC agents that KTMN had been off the air since
November 7, 2001, because of damage resulting from a
power surge and, in its letter filed with the Commission
on January 9, 2002, A-O stated that KTMN ceased
transmitting on November 7, 2001, ``as a result of a
transient failure of the station's computer.''
13. With respect to the Section 1.1310 violation, A-O now
claims that KTMN did not broadcast continuously between
October 5 and November 7, 2001, and operated for ``less
than 40 hours total'' during that period. A-O does not
specify the dates or times of its operation for ``less
than 40 hours total'' and does not provide any
documentary support for its claim such as logs or sworn
statements. In the absence of adequate support we
cannot accept this claim, but even if we were to accept
it, we would not reduce the portion of the forfeiture
imposed for A-O's RFR violation (Section 1.1310) because
the hazard to human health would still have been
14. A-O's contention that it was not required to have a
main studio or functional EAS equipment because it was
silent is not material because, as noted above, the main
studio and EAS violations existed during the period of
KTMN's operation (between October 5 and November 7,
2001), before it went silent.15 Further, A-O provides
no evidence that it complied with these rules during
this period of operation.
15. A-O argues that it is a victim of entrapment, citing
Sorrells v. United States, 287 U.S. 435, 442 (1932)
(``Sorrells''). The alleged entrapment apparently
refers to the November 14, 2001, test transmissions made
at the request of FCC agents. The defense of entrapment
is generally limited to criminal proceedings16 but may
also be available in ``quasi-criminal'' administrative
proceedings.17 Because FCC enforcement actions are not
criminal or quasi-criminal proceedings, but are
administrative proceedings to enforce public safety and
other rules by seeking recovery of civil penalties, the
defense of entrapment is not available to A-O.
Moreover, willful and repeated violations18 sufficient
to support the forfeiture occurred between October 5 and
November 7, 2001, KTMN's period of operation. This was
prior to November 14, 2001, the date of the alleged
entrapment. Even assuming arguendo that the entrapment
defense would be available in this case, we could not
find that there was entrapment. The defense of
entrapment can be maintained ``only where, as a result
of inducement, the accused is placed in the attitude of
having committed a crime which he did not intend to
commit, or where, by reason of the consent implied in
the inducement, no crime has in fact been committed.''19
In this case, all of the violations began well before
November 14, 2001, and, therefore, the agents' request
for test transmissions on that date could not have
induced A-O to commit the violations.
16. A-O again claims that it cannot pay the forfeiture. In
the Forfeiture Order, we found that, to determine A-O's
ability to pay the monetary forfeiture, we needed
additional information about the resources available to
A-O such as A-O's lines of credit and liquid assets and
the assets and income of A-O's owner (``the additional
information''). A-O argues that this is ``a radical
departure from precedent,'' that we did not seek such
information in the NAL or in previous forfeiture cases,
that we ignored A-O's corporate existence, and that we
misrepresented the meaning of the language of PJB
Communications of Virginia, Inc. (``PJB'').20 We reject
all of these arguments. First, our ruling in the
Forfeiture Order did not depart from precedent.21 While
A-O discusses numerous FCC cases concerning the ability
to pay a monetary forfeiture,22 none of these cases
addresses the question we have here: how the licensee
of a new station without revenues can establish its
inability to pay a monetary forfeiture. We have
addressed this question for the first time in this
proceeding. Second, although we did not include the
additional information in the NAL's description of the
information needed to evaluate an inability to pay claim
and did not do so in previous cases, we determined in
the Forfeiture Order that we need the additional
information to evaluate A-O's claim of inability to pay
the forfeiture. A-O had the opportunity to provide the
necessary resource information in its petition for
reconsideration but did not do so. Third, we did not
ignore A-O's corporate existence.23 In fact, it was A-
O who put recognition of its corporate existence at
issue when it claimed an inability to pay the forfeiture
and in support of its claim provided financial
documentation that indicated that A-O had no revenues
and its primary source of funding was its sole
shareholder. In a case such as this, where A-O's sole
shareholder appears to be providing substantial
resources to A-O, we need information about A-O's access
to these and other resources to determine whether A-O
can pay the forfeiture. Finally, we did not
misrepresent the meaning of the language of our PJB
decision, which clearly allows indicators other than a
violator's gross revenues to be considered in
determining ability to pay a monetary forfeiture.24
17. As we stated in the Forfeiture Order, a number of
circumstances indicate that there are funds available to
A-O: A-O's pending application for review of the Media
Bureau's cancellation of its license for station KTMN
(implying that A-O has sufficient resources to return
KTMN to the air and to operate it),25 and A-O's
application for a construction permit at a new site26
and subsequent license application for authority to
operate at the new site27 (implying that A-O had
sufficient funds to reconstruct KTMN at the new site and
did so). After the issuance of the Forfeiture Order,
the Denver Office issued a new NAL to A-O on April 23,
2004,28 for a forfeiture in the amount of ten thousand
dollars ($10,000) for operation of an unlicensed full-
service FM broadcast radio station, in apparent willful
and repeated violation of Section 301 of the Act.29 The
fact that A-O constructed and operated KTMN as a full-
service FM broadcast station at the new site indicates
that A-O apparently has sufficient funding to operate a
radio station, and thus must provide more documentation
to prove its inability to pay the forfeiture.
18. Although A-O did not provide financial information with
its petition for reconsideration, we are taking official
notice of the financial information A-O submitted with
its response to the separate NAL issued on April 23,
2004. That information indicates that A-O is a
``development stage company'' which has no revenues and
little or no cash on hand or other liquid assets. The
information further indicates that apparently A-O's
operations and capital investments are funded primarily
by loans and, to a lesser extent, by issuing new stock.
According to the financial information, A-O's loans are
from its shareholder and from the Southern New Mexico
Radio Foundation, whose president is also the owner and
president of A-O. If A-O wants to continue to pursue
its inability to pay claim, A-O must prove that it does
not have access to the resources necessary to pay the
forfeiture. Since A-O has not proven this, we are
unable to determine that it cannot pay the forfeiture
amount and we will not reduce the forfeiture on the
basis of A-O's inability to pay.
19. We have examined A-O's petition for reconsideration
pursuant to the statutory factors prescribed by Section
503(b)(2)(D) of the Act,30 and in conjunction with the
Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines,31 as well. As a result of our
review, we again 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
20. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act32 and Section 1.106 of the Rules,33 A-O
Broadcasting Corporation's petition for reconsideration
of the Forfeiture Order IS DENIED and the Forfeiture
Order IS AFFIRMED.
21. 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.34 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, IL 60661.
Payment by wire transfer may be made to ABA Number
071000013, receiving bank Bank One, and account number
1165259. 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.
22. IT IS FURTHER ORDERED THAT a copy of this 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.
Marlene H. Dortch
1 The Commission's records now list 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 A-O's failure
to transmit broadcast signals on the station for a consecutive
12-month period. Letter to Paul H. Brown, Esq., 18 FCC Rcd 35 (MB
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
(MB 2003). An application for review of that action is pending.
3 A-O Broadcasting Corporation, 18 FCC Rcd 27069 (2003)
4 47 C.F.R. §§ 1.1310, 11.35, 73.1125, and 73.1400.
5 Pursuant to its license at that time, KTMN was authorized to
operate on frequency 97.9 MHz with an effective radiated power
(``ERP'') of 100 kW and a center of radiation equal to 18 meters
above ground level (``AGL''). See File No. BLH-20010924AAM
granted on October 5, 2001.
6 A-O Broadcasting, Inc., 17 FCC Rcd 24184 (2002).
7 File No. BPH-20020822AAC.
8 See 47 U.S.C. § 312(g) (if a broadcast station fails to
transmit broadcast signals for any consecutive 12-month period,
then the station license granted for the operation of that
broadcast station expires at the end of that period).
9 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.
10 These applications are now before the Media Bureau (File Nos.
BLSTA-20040413ABX and BLSTA-20040415AGE).
11 As indicated in the Forfeiture Order at fn. 15, we need not
discuss whether the violations of Sections 11.35, 73.1125 and
73.1400 of the Rules apply to KTMN's period of silence because
these violations existed throughout KTMN's period of operation.
12 Forfeiture Order at 29073, ¶ 15 (where station was not
constructed as proposed, FCC's review of RFR analysis submitted
with application does not prevent it from imposing forfeiture for
13 Id at 27093, ¶ 15 (licensee chargeable with employee's or
contractor's knowledge of location of antenna).
14 Even assuming arguendo that A-O suspended operation to prevent
excessive RFR exposure, A-O, as pointed out above and in the
Forfeiture Order, violated Section 1.1310 of the Rules during its
October 5 through November 7, 2001, period of operation.
15 As indicated above in fn 10, we need not determine whether
these violations continued during KTMN's period of silence
because A-O was charged with violating these rules throughout
KTMN's period of operation.
16 See Sorrells at 442.
17 See Rodriguez v. United States, 534 F. Supp. 370, 373 (D.P.R.
1982); New York v. Adorno, 1987 WL 19642 (S.D.N.Y. 1987).
18 Sections 1.1310, 11.35, 73.1125, and 73.1400 of the Rules.
19 Sorrells at 442.
20 7 FCC Rcd 2088 (1991).
21 The Commission has looked to potential sources of income
available to a violator when considering a violator's ability to
pay a forfeiture. See, e.g. KASA Radio Hogar, 17 FCC Rcd 6256
22 Sonderling Broadcasting Corp., 69 FCC 2d 289 (1977); ABC,
Inc., 18 FCC Rcd 25647 (Enf. Bur. 2003); Tricounty Telephone
Co., 54 Rad. Reg. 2d 1065 (Com. Car. Bur. 1983); PJB; First
Greeneville Corporation, 11 FCC Rcd 7399 (1996); Benito Rish, 10
FCC Rcd 2861 (1995); Pinnacle Communications, Inc., 11 FCC Rcd
15496 (1996); N&W Promotions, Inc., 18 FCC Rcd 22341 (Enf. Bur.
2003); Lighthouse Broadcasting, 18 FCC Rcd 9573 (Enf. Bur. 2003);
C.W.H. Broadcasting, Inc., 17 FCC Rcd 14324 (Enf. Bur. 2003);
Radio Moultrie, Inc., 8 FCC Rcd 4266 (Mass Media Bur. 1993);
Target Telecom, Inc., 13 FCC Rcd 4456 (Com. Car. Bur. 1998); Bear
Communications, 12 FCC Rcd 18108 (Compl. & Info. Bur. 1997);
Kenneth Paul Harris, Sr., 15 FCC Rcd 23991 (Enf. Bur. 2000);
Natchez Communications, inc., 15 FCC Rcd 4628 (Enf. Bur. 2000),
recon. denied, 15 FCC Rcd 18798 (Enf. Bur. 2000); and Hill
Country Radio, Inc., 14 FCC Rcd 17708 (Mass Media Bur. 1999).
23 By suggesting that A-O could provide financial information
about its owner to demonstrate its inability to pay claim, we
recognize that it may appear that we are attempting to pierce the
corporate veil. However, we note that we do not have sufficient
information at this time to determine whether the corporate veil
should be pierced, nor do we seek to do so. Our only goal is to
evaluate A-O's claim of inability to pay which it has raised in
this proceeding. We further note that an evaluation of A-O's
separate corporate existence may become necessary if A-O wishes
to pursue its inability to pay claim. See Dimension Cable TV,
Inc., 25 FCC 2d 520 (1970), reconsideration denied, 27 FCC 2d 43
(1971); Telecable Corp., 19 FCC 2d 574 (1969) (cases in which the
Commission pierced the corporate veil).
24 The relevant language is: ``In general, a licensee's gross
revenues are the best indicator of its ability to pay a
forfeiture. Nevertheless, we recognize that in some cases, other
financial indicators . . . may also be relevant.'' PJB at 2089.
We believe this is such a case.
25 See Letter to Paul H. Brown, Esq., fn 1, supra.
26 Granted September 30, 2002 (File No. BPH-20020822AAC).
27 Dismissed July 31, 2003 (File No. BLH-20030703ACD).
28 Notice of Apparent Liability for Forfeiture, NAL/Acct No
200432800001 (Enf. Bur., Denver Office, released April 23, 2004).
29 47 U.S.C. § 301.
30 47 U.S.C. § 503(b)(2)(D).
31 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
32 47 U.S.C. § 405.
33 47 C.F.R. § 1.106.
34 47 U.S.C. § 504(a).