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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   )                               


                                FORFEITURE ORDER

   Adopted: June 27, 2006 Released:  June 29, 2006

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. introduction

    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of three thousand dollars ($3,000) to Power Radio
       Corporation ("Power Radio"), licensee of Low Power ("LP") FM Station
       KXPW-LP in Georgetown, Texas, for willful violation of Section
       73.875(c) of the Commission's Rules ("Rules").  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. Section 73.875 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. A
       modification of license application on FCC Form 319 must be submitted
       to the Commission within 10 days of commencing program test
       operations. In response to the Division's August 24, 2004 Letter of
       Inquiry ("LOI"), Power Radio admitted it replaced its authorized
       three-bay antenna with a four-bay antenna without filing an FCC Form
       319.

    3. On December 10, 2004, the Enforcement Bureau's Spectrum Enforcement
       Division ("Division") released a Notice of Apparent Liability for
       Forfeiture ("NAL") finding that Power Radio failed to timely file an
       FCC Form 319 ten days after it replaced Station KXPW-LP's authorized
       three-bay antenna with a four-bay antenna. The NAL proposed a $3,000
       forfeiture based on Power Radio's failure to file the required forms
       in apparent willful violation of Section 73.875(c) of the Rules.

    4. In its January 10, 2005 response to the NAL, Power Radio seeks
       cancellation or reduction of the proposed forfeiture due to the nature
       of the violation, the station's remedial response to the violation
       upon FCC notification, and the licensee's inability to pay. Power
       Radio claims it is a new operator with decreasing revenues and
       submitted its federal tax return for 2003 in support of these claims.

   III. DISCUSSION

    5. On the basis of the information before us, we conclude that Power
       Radio willfully violated Section 73.875(c) of the Rules. Specifically,
       Power Radio, in its response to our LOI, has admitted to committing
       the acts leading to the violation but asserts that due to a
       misunderstanding with its engineering consultant, it was unaware of
       the need to file an application. Section 312(f)(1) of the
       Communications Act of 1934, as amended ("Act"), provides that "the
       term `willful,' when used with reference to the commission or omission
       of any act, means the conscious or 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 ...." A violation
       resulting from an inadvertent mistake or a failure to become familiar
       with the FCC's requirements is considered a willful violation.

    6. The forfeiture amount proposed in this case was assessed in accordance
       with Section 503(b) of the Act, Section 1.80 of the Rules, and the
       Commission's Forfeiture Policy Statement and Amendment of Section 1.80
       of the Rules to Incorporate the Forfeiture Guidelines. In assessing
       forfeitures, Section 503(b)(2)(D) of the Act requires that we 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.

    7. We have considered Power Radio's response to the NAL in light of the
       above statutory factors, our Rules, and the Forfeiture Policy
       Statement, and conclude that no further reduction of the proposed
       forfeiture amount is warranted. Power Radio claims that the forfeiture
       amount is excessive based on the corporation's position as a new
       operator, the insignificance of the violation, and the subsequent
       filing of the appropriate documentation on October 18, 2004. We reject
       those arguments.

    8. First, we find no merit to the claim that Power Radio's violation of
       the Rules is excused by its status as a new operator. All Commission
       licensees - regardless of the length of their status as such - are
       expected to know and comply with the FCC's Rules. In similar cases on
       multiple occasions, the Commission has declined to consider lack of
       knowledge of its rules and regulations as justification for violations
       thereof.  To do otherwise would jeopardize the Commission's core
       mission to regulate interstate and international communications by
       wire and radio in a manner aimed at promoting safety of life and
       property.

    9. Second, designation of a violation as minimal or insignificant
       generally will not suffice to reduce the forfeiture amount. Section
       73.875(c) of the Rules requires licensees to submit the FCC Form 314
       within 10 days of commencing program test operations. We do not agree
       that filing an FCC Form 314 on October 18, 2004, two months after
       making LPFM modifications, is a minor violation. Further, it is not a
       minor violation when considering the potential impact on public safety
       if LPFM modifications do not comply with the Commission's
       radiofrequency radiation guidelines.

   10. Furthermore, we note that Power Radio undertook to file the form and
       inform the FCC of the new antenna only after a complaint was
       registered and the Division initiated an investigation of the
       violation. Therefore, we conclude that Power Radio's subsequent
       remedial actions are not mitigating circumstances that would warrant a
       further reduction of the forfeiture amount.

   11. Power Radio also asserts an inability to pay the forfeiture amount
       based on decreasing revenues and an inability to reduce expenses. In
       support of these assertions, Power Radio supplied the corporation's
       2003 federal tax return. In analyzing a financial hardship claim, the
       Commission generally has compared the licensee's gross revenues with
       the forfeiture amount when determining whether a licensee is able to
       pay the assessed forfeiture. After reviewing Power Radio's supporting
       documentation, we find that it has generated sufficient gross revenues
       such that payment of the forfeiture will not pose a financial
       hardship. Power Radio's assertion of decreasing revenues is
       insufficient to support reduction of the forfeiture.

   12. In sum, Section 1.80(b)(4) of the Rules sets a base forfeiture amount
       of $3,000 for failing to file a required form. In the instant case, we
       do not believe a reduction or cancellation of the proposed forfeiture
       is warranted.

   IV. ordering Clauses

   13. 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, Power
       Radio Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
       three thousand dollars ($3,000.00) for a violation of Section
       73.875(c) of the Rules.

   14. 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. 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 Federal Communications Commission, P.O.
       Box 358340, Pittsburgh, PA 15251-8340.  Payment by overnight mail may
       be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
       Pittsburgh, PA 15251.   Payment by wire transfer may be made to ABA
       Number 043000261, receiving bank Mellon Bank, and account
       number 911-6106. A request for full payment under an installment plan
       should be sent to: Associate Managing Director - Financial Operations,
       445 12^th Street, SW, Room 1A625, Washington, D.C. 20554.

   15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail Return Receipt Requested to Power Radio
       Corporation, P.O. Box 73, Georgetown, Texas 78627-0073 and to Lauren
       Lynch Flick, Esq., Shaw Pittman LLP, 2300 N Street, NW, Washington,
       D.C. 20037-1128.

   FEDERAL COMMUNICATIONS COMMISSION

   Joseph P. Casey

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   47 C.F.R. S 73.875(c).

   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. S 73.1620(a)(1).

   See Letter from Joseph P. Casey, Chief Spectrum Enforcement Division,
   Enforcement Bureau, to James Aultfather, President, Power Radio
   Corporation (October 12, 2004).

   See Letter from James Aultfather, President, Power Radio Corporation, to
   Spectrum Enforcement Division, Enforcement Bureau (October 18, 2004).

   Power Radio Corporation, 19 FCC Rcd 23735 (Enf. Bur., Spectrum Enf. Div.,
   2004).

   Id. at P 5-6.

   Id. at P 3 (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 that authorized by its license).

   47 U.S.C. S312(f)(1).

   See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard
   Communications Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting Co., Inc.,
   96 FCC 2d 1235, 1242 (1984).

   47 U.S.C. S 503(b).

   47 C.F.R. S 1.80.

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

   47 U.S.C. S 503(b)(2)(D).

   The application was filed six days after the Division initiated its
   inquiry of the violation, via its LOI. See File No. BMLL - 20041018AAW.

   Sitka Broadcasting Co., Inc., 70 FCC 2d 2375, 2378 (1979) (denying a
   mitigation claim of a broadcast licensee who claimed it was unaware that
   it could have applied for a waiver of operator requirements, stating that
   "Licensees are expected to know and comply with the Commission's rules")
   citing Lowndes County Broadcasting Co., 23 FCC 2d 91 (1970) (denying a
   mitigation claim of a broadcast licensee who claimed it did not know it
   was in violation of the terms of a station license) and Emporium
   Broadcasting Co., 23 FCC 2d 868 (1970) (denying a mitigation claim of a
   broadcast licensee who argued it was unaware of the availability of a
   temporary Commission waiver of the operator requirements, stating "the
   Commission has never considered lack of knowledge of its rules and
   regulations as justification for violations thereof").

   See, e.g., KNFL, Inc., 15 FCC Rcd 10286 PP 6, 11 (Enf. Bur. 2000), recon.
   denied, 15 FCC Rcd 25527 (Enf. Bur. 2000); Mapa Broadcasting, LLC, 17 FCC
   Rcd. 10519 PP 8, 11 (Enf. Bur. 2002); AGM-Nevada, LLC, 18 FCC Rcd. 1476 PP
   5, 8 (Enf. Bur. 2003); Lakewood Broadcasting Service, Inc., 37 FCC 2d 437
   P 6 (1972).

   See 4M of Richmond, Inc., 19 FCC Rcd. 15,447 P 10 (Enf. Bur. 2004)
   (duration of "only" four days did not make the violation "minor."), recon.
   denied, 20 FCC Rcd 14368 (Enf. Bur. 2005).

   See PJB Communications of Virginia, Inc., 7 FCC Rcd at 2088 (the
   Commission explained that licensees have a duty to operate in accordance
   with Commission rules...there is an independent public interest in
   licensees complying with the rules.); see also 47 C.F.R. S 73.875(c)
   (modification of license applications must contain an exhibit
   demonstrating compliance with the Commission's radiofrequency radiation
   guidelines).

   See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21861, 21864-75
   (2002); Sonderling Broadcasting Corp., 69 FCC 2d 289, 291 (1978); Odino
   Joseph, 18 FCC Rcd 16522, 16524 P 8 (Enf. Bur. 2003); South Central
   Communications Corp., 18 FCC Rcd 700, 702-03 P 9 (Enf. Bur. 2003);
   Northeast Utilities, 17 FCC Rcd 4115, 4117 P 13 (Enf. Bur. 2002); AM
   Broadcast Station KTNC and C.R. Communications, Inc., DA 99-2960 P 5 (Enf.
   Bur. 1999).

   See Forfeiture Policy Statement, 12 FCC Rcd at 17106-07 P 43.

   See PJB Communications of Virginia, Inc., 7 FCC Rcd at 2089 (forfeiture
   not deemed excessive where it represented approximately 2.02 percent of
   the violator's gross revenues); Local Long Distance, Inc., 15 FCC Rcd
   24385, 24389 P 11  (2000), recon. denied, 16 FCC Rcd 10023, 10025 P 6
   (2001) (forfeiture not deemed excessive where it represented approximately
   7.9 percent of the violator's gross revenues); Hoosier Broadcasting
   Corporation, Inc., 14 FCC Rcd 3356 (CIB 1999), recon. denied, 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).
   Here, the forfeiture does not exceed a percentage of Power's gross
   revenues such that it would be considered excessive.

   PJB Communications, 7 FCC Rcd at 2089; Commonwealth Broadcasting Corp., 19
   FCC Rcd. 8026, 8029 (Media Bur. 2004), recon granted on other grounds, 20
   FCC Rcd 17985 (Media Bur. 2005).

   47 C.F.R. S 1.80(b)(4).

   47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).

   47 U.S.C. S 504(a).

   See 47 C.F.R. S 1.1914.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 06-1325

   2

   Federal Communications Commission DA 06-1325