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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Alpine Broadcasting Limited
Partnership ) File No. EB-04-ST-117
Former Licensee of AM Station KWYS ) NAL/Acct. No. 200532980001
West Yellowstone, Montana ) FRN: 0005952668
Facility ID 24434 )
)
)
FORFEITURE ORDER
Adopted: March 24, 2006 Released: March 28, 2006
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of seven thousand dollars ($7,000) to Alpine Broadcasting
Limited Partnership ("Alpine"), former licensee of AM Station KWYS in
West Yellowstone, Montana, ACS Wireless ("ACS") for willful and
repeated violation of Section 73.1125(a) of the Commission's Rules
("Rules"), by failing to maintain a meaningful managerial and staff
presence at the KWYS main studio. On January 14, 2005, the Enforcement
Bureau's Seattle Office issued a Notice of Apparent Liability for
Forfeiture ("NAL") in the amount of $7,000 to Alpine. In this Order,
we consider Alpine's arguments that the NAL is unenforceable against
Alpine, and that the agent's assessments of the station's main studio
were not consistent with the facts at the time of the inspection.
II. BACKGROUND
2. On May 17, 2004, an agent from the Commission's Seattle Office
attempted to conduct a routine inspection of the KWYS main studio at
303 N. Canyon Street, West Yellowstone, Montana, during regular
business hours. The agent found the main studio locked with no station
personnel present, only a sign referring persons seeking the public
file to see a realty agency, located across the hall, for instructions
on how to gain access. A representative from the realty company told
the agent that no one associated with KWYS had been present at the
studio for the last few months and that he had an agreement with the
station to let people see the public file if requested. The agent
contacted Alpine's office in Ketchum, Idaho. Alpine's General Partner
told the agent that KWYS was run remotely from that office and that an
advertising agent in West Yellowstone went to the studio infrequently
to work on ads. He also advised the agent that he or KWYS's contract
engineer could arrive at the station in three to four hours to
complete the inspection, but no sooner.
3. On January 14, 2005, the Seattle Office issued the NAL to Alpine,
finding that Alpine apparently willfully and repeatedly failed to
maintain a meaningful managerial and staff presence at the KWYS main
studio. Alpine filed a response to the NAL on February 14, 2005
("Response"). In the Response, Alpine states that the NAL is
unenforceable against Alpine, and that the agent's assessments of the
station's main studio were not consistent with the facts at the time
of the inspection.
III. DISCUSSION
4. The proposed forfeiture amount 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 examining
Alpine'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.
5. Section 73.1125(a) of the Rules requires the licensee of a broadcast
station to 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 Section 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."
6. We first address the argument that the NAL is unenforceable against
Alpine. Scott D. Parker, who identifies himself on the Response as the
"Former General Partner of Alpine Broadcasting Limited Partnership"
states that, as noted in the NAL, KWYS was sold to Chaparral
Broadcasting on August 13, 2004, that Alpine has completed "'winding
down' its business affairs . . . [and that] Alpine is nothing more
than a shell entity without any assets or cash." Parker and Alpine
provide no documentation to support this statement. In the NAL, the
Seattle Office instructed Alpine, if it sought cancellation or
reduction of the forfeiture, to supply:
(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 petitioner's current financial status. Any
claim of inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted.
Absent sufficient evidence that supports Parker's and Alpine's assertions,
we have no basis to find that this NAL is unenforceable against Alpine.
7. Alpine also asserts that the Seattle agent's "overall assessments and
certain statements are not consistent with the facts." Specifically,
Alpine argues that Parker never advised the agent that the station was
run remotely, but that the transmitter could be controlled remotely.
Further, Alpine states that Parker informed the agent, at the time of
the inspection, that the station had two employees and an engineer on
contract who "must be out of the office." Alpine also states that the
representative of the realty company who held the key to the KWYS main
studio and unlocked the main studio for the Seattle agent "had a long
working relationship with the radio station" and that he "had
previously agreed to serve as alternate chief operator in the event
station personnel were out." Alpine acknowledges, however, that KWYS
was not on the air for nearly four months between January 2004 and May
2004, and that during that period of time it was true, as the realty
company representative stated to the Seattle agent, that "no one
associated with KWYS had been present at the studio for the last few
months."
8. We acknowledge that there may have been some confusion concerning the
remote operation of the station, however, this confusion does not
mitigate the Seattle Office's finding that Alpine failed to staff the
KWYS main studio to ensure compliance with Section 73.1125(a) of the
Rules. As stated above, and in the NAL, a station must maintain
management and staff presence on a full-time basis during normal
business hours to be considered "meaningful." The staff 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." At the
time of the inspection, during regular business hours, the agent
remained at the station for over two hours and found no staff
presence, meaningful or otherwise, at the main studio. While the
realty company representative holding the key to the studio may have
been associated with KWYS, Alpine does not assert that he was a member
of its daily staff. Moreover, Alpine provides no evidence to support
its assertion that the realty company representative was designated as
an alternate Chief Operator. Therefore, we find the evidence supports
the Seattle Office's finding that Alpine violated Section 73.1125(a)
by failing to maintain a meaningful managerial and staff presence at
the KWYS main studio. This support is buttressed by Alpine's
acknowledgement that it failed to maintain a meaningful staff presence
at the KWYS main studio between January 2004 and May 2004 while KWYS
was off the air. A review of the Commission's records reveals that
Alpine received no special temporary authorization to cease
broadcasting for that period of time, as required by Sections 73.1635
and 73.1740 of the Rules, and no waiver of the Commission's main
studio staffing requirements.
9. We have examined Alpine's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Alpine
Broadcasting Limited Partnership willfully and repeated violated
Section 73.1125 of the Rules. Considering the entire record and the
factors listed above, we find that neither reduction nor cancellation
of the proposed $7,000 forfeiture is warranted.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Alpine Broadcasting
Limited Partnership IS LIABLE FOR A MONETARY FORFEITURE in the amount
of $7,000 for willfully and repeatedly violating Section 73.1125(a) of
the Rules.
11. 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, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Alpine
Broadcasting Limited Partnership. P.O. Box 2158, Ketchum, ID,
83340-2158, and Scott D. Parker, 221 Northwood Way, Suite 300,
Ketchum, ID, 83340.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
On June 21, 2004, the Commission accepted Alpine's application to assign,
among other licenses, the license of KWYS(AM), to Chaparral Broadcasting,
Inc. See File No. BALH-20040617AAW. The application was granted on July
30, 2004. According to Commission records, the transaction was consummated
on August 13, 2004. At the time of the violation discussed herein, Alpine
was the licensee of KWYS.
47 C.F.R. S 73.1125(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532980001
(Enf. Bur., Western Region, Seattle Office, released January 14, 2005).
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).
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 73.1125(a).
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.
NAL at P 11.
See Webnet Communications, Inc., 18 FCC Rcd 6870, 6878 (2003).
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified 7 FCC Rcd 6800 (1992).
7 FCC Rcd at 6802.
See 47 C.F.R. S 73.1870.
47 C.F.R. S 73.1635 (Special Temporary Authorization); 47 C.F.R. S 73.1740
(Minimum Operating Schedule).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 73.1125(a).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-664
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Federal Communications Commission DA 06-664