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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
127, Inc. ) File Number EB-05-KC-143
Licensee of Station KLFJ ) NAL/Acct. No. 200632560002
Facility ID# 17137 ) FRN 0011407814
Springfield, Missouri )
)
FORFEITURE ORDER
Adopted: September 1, 2006 Released: September 6, 2006
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of sixteen thousand eight hundred dollars ($16,800) to 127,
Inc. for willful and repeated violation of Sections 73.1125(a) and
73.1745 of the Commission's Rules ("Rules"), and for willful violation
of Section 73.3526(a) of the Rules. The noted violations involve
failure to maintain a main studio, operating overpower during
nighttime hours and failure to make available for inspection the
station's public inspection file.
II. BACKGROUND
2. On December 13, 2005, an agent from the Commission's Kansas City
Office of the Enforcement Bureau ("Kansas City Office") received a
report that radio station KLFJ located in Springfield, Missouri was
not reducing power during nighttime hours as required by the station
license. The Commission agent monitored KLFJ's signal from a location
in Springfield. The agent's monitoring indicated no power reduction in
KLFJ's signal from mid afternoon until after sunset.
3. On December 14, 2005, the agent again monitored KLFJ's signal strength
from the same location previously used and again the monitoring
indicated no reduction in signal strength during nighttime hours from
the signal level observed during mid-afternoon. Telephone calls to
KLFJ went unanswered at 9:03 AM, 10:38 AM, 1:05 PM, 2:55 PM and 4:00
PM this date.
4. On December 15, 2005, the agent contacted Ms. Linda Morgan, executive
assistant to the station's owner, C.J. Perme, at Surrey Vacation
Resorts/Surrey Grand Crown Resort, by using the phone number provided
in KLFJ's EEO Form 396. Ms. Morgan was located at the address listed
on the EEO form, 430-C Highway 165 South in Branson, Missouri. The
agent interviewed Ms. Morgan at that address. Ms. Morgan stated there
was no studio for the radio station and station programming is done
via computer from West Hollywood, California. Ms. Morgan stated she
did not know the location of the public file but suggested checking at
the Econo Lodge in Springfield. Ms. Morgan stated the KLFJ phone
number listed in the Springfield phone book is supposed to be answered
and is located at the Econo Lodge along with the computer containing
the station's aired material. Ms. Morgan provided the phone number for
the contract engineer for KLFJ and stated he would be able to aid with
inspection of the transmitter and equipment located at the Econo
Lodge.
5. Still on the same date, the agent inspected KLFJ's transmitter site
and programming equipment located in Springfield, Missouri. Mr. Corbin
Campbell, the KLFJ contract engineer, was present during the
inspection. The transmitter was operating at a power of 1125 watts.
Mr. Campbell stated that the station had operated at this power level
for two to three months. Mr. Campbell stated that there was no studio
or studio equipment for KLFJ. The agent found no microphone or other
audio mixing capabilities that would allow origination of programming
from the Econo Lodge, the transmitter site, or any other location in
Springfield. Station programming material is uploaded to one of the
two computers located in a back room of the Econo Lodge motel via
telephone line from West Hollywood, California. During the inspection,
Mr. Campbell was able to reduce the transmitter power to approximately
25 watts both manually and by using the remote control. Mr. Campbell
stated that remote control instructions were left at the Econo Lodge
when it was owned by Mr. Perme. According to Mr. Raj, new owner of the
Econo Lodge, current Econo Lodge employees did not have any knowledge
of the radio station operation or of any station records. Mr. Campbell
stated he is called by the station only as needed. Mr. Campbell stated
he had no knowledge of radio station staff locally and stated no chief
operator was designated for the station. A check of the telephone for
the station located at the Econo Lodge front desk found the telephone
unplugged but operating correctly when plugged in.
6. On March 3, 2006, the Kansas City Office issued to 127, Inc. a Notice
of Apparent Liability for Forfeiture ("NAL") proposing a forfeiture in
the amount of $21,000 that found 127, Inc. had willfully and
repeatedly violated Sections 73.1125(a) and 73.1745 of the Rules, and
had willfully violated Section 73.3526(a) of the Rules. On May 11,
2006, the Kansas City Office received a letter from 127, Inc. dated
May 1, 2006. The letter stated that 127, Inc. had previously submitted
a response to the NAL and attached a copy of that response dated March
28, 2006. In its response, 127, Inc. does not deny the violations,
states that it has made efforts to correct the violations, and
requests cancellation or reduction of the proposed forfeiture due to
its "spotless track record" and "many years of untarnished service."
III. DISCUSSION
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("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 examining 127 Inc.'s
response, Section 503(b) 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.
8. Section 73.1125(a) of the Rules requires that each AM broadcast
station maintain a main studio at one of the following locations: (1)
within the station's community of license; (2) at any location within
the principal community contour of any AM, FM, or TV broadcast station
licensed to the station's community of license; or (3) within
twenty-five miles from the reference coordinates of the center of its
community of license as described in Sec. 73.208(a)(1). In addition,
the station's main studio must serve the needs and interests of the
residents of the station's community of license. To fulfill this
function, a station must, among other things, maintain a meaningful
managerial and staff presence at its main studio. The Commission has
defined a minimally acceptable "meaningful presence" as full-time
managerial and full-time staff personnel. In addition, there must be
"management and staff presence" on a full-time basis during normal
business hours to be considered "meaningful." Although management
personnel need not be "chained to their desks" during normal business
hours, they must "report to work at the main studio on a daily basis,
spend a substantial amount of time there and ... use the studio as a
home base." On at least December 14 and 15, 2005, KLFJ did not have a
main studio as confirmed by the agent's investigation and statements
made by the station owner's executive assistant and the contract
engineer. Therefore, 127, Inc. failed to comply with Section
73.1125(a) of the Rules. There is no dispute that 127, Inc. is
licensed to operate station KLFJ in Springfield, and did so
continuously on multiple days with no main studio facility or staffing
in the community or at any location authorized by Section 73.1125(a)
of the Rules. 127, Inc. did maintain program origination facilities
but located hundreds of miles away from the community of license.
Therefore, we find this violation to be willful and repeated.
9. Section 73.1745 of the Rules states in subsection (a) that "[n]o
broadcast station shall operate at times, or with modes or power,
other than those specified and made a part of the license, unless
otherwise provided in this part" and in subsection (b) that "[a]ny
unauthorized departure from an operating schedule which is required to
be filed with the FCC in Washington, DC, will be considered as a
violation of a material term of the license." KLFJ's license
authorizes daytime power of 5000 watts and nighttime power of 28
watts. Monitoring of the station's signal strength on the nights of
December 13 and 14, 2005, determined the station was operating
overpower at a power of 1125 watts during night time hours. Therefore,
127, Inc. failed to comply with Section 73.1745 of the Rules. The
contract engineer for the station stated that the KLFJ transmitter had
operated continuously at a power of 1125 watts for at least two to
three months. Therefore, we find this violation to be willful and
repeated.
10. Section 73.3526(a) of the Rules requires commercial broadcast stations
to maintain for public inspection a file containing materials listed
in that section. The public inspection file is to be maintained at the
main studio of the station and be available for public inspection
during regular business hours. On December 15, 2005, no public file
was available upon request at any location near the community of
license. Therefore, 127, Inc. failed to comply with Section
73.3526(a) of the Rules. It is undisputed that 127, Inc. is licensed
to operate KLFJ in Springfield and did so with no provision for access
to the public inspection file. There is no evidence that the failure
to provide access to the public file was caused by accident.
Therefore, we find this violation to be willful.
11. While the response makes note of 127, Inc.'s efforts to correct the
violations, such remedial efforts to correct violations after
notification by the Commission do not mitigate imposition of a
forfeiture. "[C]orrective action taken to come into compliance with
Commission rules or policy is expected, and does not nullify or
mitigate any prior forfeitures or violations." After considering 127,
Inc.'s past history of compliance, we conclude that a reduction of the
forfeiture amount from $21,000 to $16,800 is appropriate.
12. We have examined 127, Inc.'s response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. We conclude that 127, Inc. willfully and repeatedly
violated Sections 73.1125(a) and 73.1745 of the Rules, and willfully
violated Section 73.3526(a) of the Rules. We find no basis for
cancellation of the proposed forfeiture but do find that reduction of
the forfeiture amount from $21,000 to $16,800 based on 127, Inc.'s
history of compliance is appropriate.
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 Commission's
Rules, 127, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$16,800 for willful and repeated violation of Sections 73.1125(a) and
73.1745 of the Rules and willful violation of Section 73.3526(a) 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. Requests for full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to 127, Inc. at
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. SS 73.1125(a), 73.1745, 73.3526(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632560002
(Enf. Bur., South Central Region, Kansas City Office, released March 3,
2006).
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).
See Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3217-18
(1987), clarified 3 FCC Rcd 5024, 5026 (1988).
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified 7 FCC Rcd 6800 (1992).
Id.
7 FCC Rcd at 6802.
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(c)(1).
Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 at P 7 (1994).
See Max Media of Montana, L.L.C., 18 FCC Rcd 21375, 21379 P 14 (Enf. Bur.
2003); South Central Communications Corp., 18 FCC Rcd 700, 703 P 9 (Enf.
Bur. 2003).
47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 C.F.R. SS 73.1125(a), 73.1745, 73.3526(a).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1754
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Federal Communications Commission DA 06-1754