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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                            )                                
     In the Matter of                                                        
                                            )                                
     Boulder Community Broadcast                                             
     Association, Inc.                      )     File Number: EB-07-DV-193  
                                                                             
     Licensee of KGNU                       )   NAL/Acct. No.: 200832800002  
                                                                             
     Denver, Colorado                       )               FRN: 0006024319  
                                                                             
     Facility ID# 31349                     )                                
                                                                             
                                            )                                


                                FORFEITURE ORDER

   Adopted: May 27, 2008 Released: May 29, 2008

   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 three thousand, two hundred dollars ($3,200) to Boulder
       Community Broadcast Association, Inc. ("BCBA"), licensee of KGNU(AM)
       in Boulder, Colorado, for willful and repeated violation of Section
       73.1745(a) of the Commission's Rules ("Rules"). On December 21, 2007,
       the Enforcement Bureau's Denver Office issued a Notice of Apparent
       Liability for Forfeiture ("NAL") to BCBA in the amount of $4,000 for
       failing to operate KGNU(AM) in accordance with the station's
       authorized power as specified on the station's license. In this Order,
       we consider BCBA's arguments that it did not willfully violate Section
       73.1745(a) of the Rules, that it took steps to remedy the violation as
       soon as it was notified of it, that it lacks the ability to pay the
       forfeiture, and that it has a history of compliance with the
       Commission's Rules.

   II. BACKGROUND

    2. KGNU(AM) is authorized to operate with a non-directional pattern on
       1390 kHz with 5000 watts during daytime hours and 139 watts during
       nighttime hours. Daytime is defined as the "period of time between
       local sunrise and local sunset" and nighttime is defined as the period
       "between local sunset and local sunrise." In Denver, Colorado, during
       the month of April, local sunrise occurs at 6:30 a.m., and local
       sunset occurs at 7:45 p.m.

    3. On April 26, 2007, in response to a complaint, an agent from the
       Enforcement Bureau's Denver Office monitored KGNU(AM) through the
       post-sunset nighttime hours with a spectrum analyzer, and determined
       that KGNU(AM) failed to reduce its power to its licensed nighttime
       power level of 139 watts. The agent continued monitoring the station
       on April 27, 28 and 29, 2007, throughout the post-sunset nighttime
       hours and determined that on each night, KGNU(AM) failed to reduce its
       power to its licensed nighttime power of 139 watts.

    4. On April 30, 2007, a Denver agent contacted KGNU about the over-power
       operation. KGNU(AM)'s engineer indicated to the agent that a March 16,
       2007, software update had corrupted the remote control input and
       output systems. According to the KGNU(AM) engineer, this meant that
       the system was unable to switch the transmitter to low power at sunset
       or switch to full power at sunrise. It also meant that the system was
       no longer able to dial out to the preprogrammed BCBA numbers to inform
       station personnel that the transmitter had failed to reduce power at
       sunset.

    5. On May 4, 2007, a Denver agent contacted KGNU(AM), requesting to
       review the station's logs covering April 1 through May 3, 2007. On May
       9, 2007, a representative of KGNU(AM) provided the Denver Office with
       a letter acknowledging the remote control failure and the immediate
       actions undertaken by KGNU(AM) to fully restore the remote control
       system, including manually ensuring the power was reduced at the
       station at sunset. Also, KGNU(AM) provided copies of remote control
       telemetry readings for the period January 18, 2007, to April 24, 2007,
       that confirmed KGNU(AM)'s remote control problems.

    6. On December 7, 2007, Denver agents inspected KGNU(AM)'s operations at
       the transmitter site and viewed additional remote control telemetry
       readings on the station's remote control unit that showed KGNU(AM)
       operated with daytime power levels of 5000 watts 24 hours a day for
       the period from March 17, 2007, to April 30, 2007. The station's
       remote control readings directly corresponded to the Denver agent's
       observations from April 26, 2007, through April 29, 2007, of KGNU(AM)
       operating at power levels exceeding its authorized nighttime power
       during nighttime hours.

    7. On December 21, 2007, the Denver Office issued a NAL in the amount of
       $4,000 to BCBA. In the NAL, the Denver Office found that the BCBA
       apparently willfully and repeatedly violated Section 73.1745(a) of the
       Rules, by failing to operate KGNU(AM) in accordance with the station's
       authorized power as specified on the station's license. BCBA filed a
       response ("Response") to the NAL on January 8, 2008. In its Response,
       BCBA argues it did not willfully violate Section 73.1745(a) of the
       Rules, that it took steps to remedy the violation as soon as it was
       notified of it, that it lacks the ability to pay the forfeiture, and
       that it has a history of compliance with the Commission's Rules.

   III. DISCUSSION

    8. 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
       the 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.

    9. The Rules state that each licensee is responsible for maintaining and
       operating its broadcast station in a manner which complies with the
       technical rules and in accordance with the terms of the station
       license. Specifically, Section 73.1745(a) of the Commission's Rules
       states that no broadcast station shall operate at times or with modes
       or power, other than those specified and made part of the license.
       During the month of April 2007, KGNU(AM) was authorized to operate at
       5000 watts between 6:30 a.m., and 7:45 p.m. After 7:45 p.m., and
       before 6:30 a.m., KGNU(AM) was authorized to operate at 139 watts.
       Between April 26, 2007, and April 29, 2007, monitoring by a Denver
       agent revealed that KGNU(AM) was not reducing its operating power
       after 7:45 p.m., as required by its authorization. Further
       investigation by Denver agents revealed that telemetry readings made
       by KGNU(AM) showed that KGNU(AM) was operating at 5000 watts 24 hours
       a day, from March 17, 2007, to April 30, 2007, confirming the Denver
       agent's observations between April 26, 2007, and April 29, 2007.

   10. In its Response, BCBA does not dispute the facts, as stated by the
       Denver Office, but argues that the violation was not willful pursuant
       to Section 312(f)(1) of the Act. Specifically, BCBA states that it did
       not "knowingly" violate Section 73.1745(a) because the software that
       it installed in its remote control system "corrupted" the system, and,
       consequently, the remote control system failed to change the KGNU(AM)
       transmitter to lower power and failed to advise station personnel of
       the failure to reduce power at sunset. Therefore, BCBA asserts that it
       was not aware of the violation. We find no merit to this argument. A
       licensee is required to operate consistent with its authorization, and
       BCBA, at all times, had exclusive control of the KGNU(AM) transmitter.
       As detailed above, and in the NAL, BCBA produced telemetry data from
       March 17, 2007 to April 30, 2007 which showed that its transmitter was
       operating at variance with its licensed parameters for six weeks.
       Given that BCBA was aware of the power limits on its authorization,
       and had data within its control that showed that for six weeks it was
       operating the KGNU(AM) transmitter at a power above its licensed
       power, but failed to correct the violation until notified by a Denver
       agent, we find that BCBA's violation was willful.

   11. BCBA also argues that its violations were inadvertent and that it took
       steps to remedy the violations as soon as it was notified by the
       Denver agent. BCBA's efforts to resolve the over-power operation
       subsequent to the Denver agent's inspection do not justify a downward
       adjustment. The Commission has determined that it expects the entities
       it regulates to correct errors when they are brought to the regulated
       entity's attention.

   12. BCBA also argues that it is a nonprofit organization that operates
       KGNU(AM) on a noncommercial basis, and that its ability to pay a
       forfeiture is less than its commercial counterparts. BCBA, however,
       submits no data to substantiate its claim. We note that in the NAL,
       the Denver Office  instructed BCBA, if it sought cancellation or
       reduction of the forfeiture based on an inability to pay, 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.

   Because BCBA has provided no documentation, it has not provided us with a
   sufficient basis to support cancellation or reduction of the forfeiture
   based on its inability to pay.

   13. Finally BCBA contends that it has a history of overall compliance with
       the Commission's Rules. We have reviewed our records and we concur.
       Consequently, we reduce BCBA's forfeiture amount to $3,200.

   14. We have examined the 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 BCBA willfully
       and repeatedly violated Section 73.1745(a)  of the Rules. Considering
       the entire record and the factors listed above, we find that reduction
       of the proposed forfeiture to $3,200 is warranted.

   IV. ORDERING CLAUSES

   15. 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, Boulder Community
       Broadcast Association, Inc., IS LIABLE FOR A MONETARY FORFEITURE in
       the amount of $3,200 for willfully and repeatedly violating Section
       73.1745(a)  of the Rules.

   16. 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/Account
       Number and FRN Number referenced above. Payment by check or money
       order may be mailed to Federal Communications Commission, P.O. Box
       979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
       sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
       Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
       made to ABA Number 021030004, receiving bank TREAS/NYC, and account
       number 27000001. For payment by credit card, an FCC Form 159
       (Remittance Advice) must be submitted.  When completing the FCC Form
       159, enter the NAL/Account number in block number 23A (call sign/other
       ID), and enter the letters "FORF" in block number 24A (payment type
       code). Requests for full payment under an installment plan should be
       sent to:  Chief Financial Officer -- Financial Operations, 445 12th
       Street, S.W., Room 1-A625, Washington, D.C.  20554.   Please contact
       the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
       ARINQUIRIES@fcc.gov with any questions regarding payment procedures. 
       Boulder Community Broadcast Association, Inc., shall also send
       electronic notification on the date said payment is made to
       WR-Response@fcc.gov.

   17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to Boulder
       Community Broadcast Association, Inc., at its address of record, and
       John Crigler, its counsel of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   47 C.F.R. S: 73.1745(a).

   47 C.F.R. S: 73.14.

   All times indicated are local Mountain Daylight Savings Time.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832800002
   (Enf. Bur., Western Region, Denver Office, released December 21, 2007).

   47 C.F.R.. S: 73.1745(a).

   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)(E).

   47 C.F.R. S: 73.1745(a).

   Id.

   Section312(f)(1) states that "[t]he term 'willful', when used with
   reference to the commission or omission of any act, means the conscious
   and 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 authorized by this Act...." 47 U.S.C. S: 312(f)(1).  BCBA
   does not dispute that the violations were repeated. See Section 503(b)(1)
   of the Act, 47 U.S.C. S: 503(b)(1) (violator liable for forfeiture if
   violation is willful or repeated).

   BCBA argues its situation is analogous to that in Vernon Broadcasting,
   Inc., 60 Rad. Reg 2d (Pike and Fischer) 1275 (1986) ("Vernon
   Broadcasting"), in which the Commission cancelled a $1,000 forfeiture
   against Vernon Broadcasting, Inc. ("Vernon") licensee of WYGO(AM), Corbin,
   Kentucky, for maintaining an inadequate fencing around the WYGO(AM) tower
   because "the evidence indicate[d] that the fence had been vandalized just
   prior to [the field office's] inspection [and that there was] no
   indication that the licensee was aware of the broken fence before the
   [field office's] inspection or that it failed to monitor the condition of
   the antenna site." Vernon Broadcasting, Inc. at para 3. In High Country
   Communications, Inc.  2 FCC Rcd 7427 (1987), the Commission distinguished
   its decision in Vernon Broadcasting finding that High Country
   Communications, licensee of KVLE(FM), Gunnison, Colorado, willfully
   violated Section 73.317(a)(8) of the Rules, by causing spurious emissions,
   because, among other reasons, "[w]hile the fence in Vernon was, by its
   very nature and location, subject to influences outside the immediate
   knowledge and control of the licensee, KLVE(FM)'s transmitter was, at all
   relevant times, under the exclusive domain of High Country [and any]
   spurious emissions produced by the KLVE(FM) transmitter [were]
   attributable directly and solely to High Country." 2 FCC Rcd at 7428.

   Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).

   See AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).

   NAL at para 15.

   See Webnet Communications, Inc., 18 FCC Rcd 6870, 6878 (2003).

   47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.1745(a).

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

   Federal Communications Commission DA 08-1209

   1

   2

   Federal Communications Commission DA 08-1209