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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number: EB-08-DV-0216
Hodson Broadcasting )
NAL/Acct. Nos.: 200932800001
Permittee of KHOD(FM) )
200932800004
Des Moines, New Mexico )
FRN: 0004297180
Facility ID # 165982 )
))
FORFEITURE ORDER
Adopted: November 10, 2009 Released: November 13, 2009
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 twenty thousand ($20,000) to Hodson Broadcasting
("Hodson"), permittee of station KHOD(FM) in Des Moines, New Mexico,
for willful and repeated violation of Section 73.1620 of the
Commission's Rules ("Rules"). On November 17, 2008, the Enforcement
Bureau's Denver Office issued a Notice of Apparent Liability for
Forfeiture ("2008 NAL") to Hodson in the amount of $10,000 after
determining that Hodson apparently willfully and repeatedly operated
KHOD(FM) at variance from its authorization. On April 21, 2009, the
Denver Office issued a second Notice of Apparently Liability for
Forfeiture ("2009 NAL") to Hodson in the amount of $10,000 for
continuing to operate KHOD)(FM) at variance from its authorization. In
this Order, we consider Hodson's arguments that it has filed
applications and requests for special temporary authority ("STA") to
legitimize its operation; that it should be treated as a small
business concern; and that it lacks the ability to pay the proposed
forfeiture amounts.
II. BACKGROUND
2. On June 28, 2006, the Commission granted Hodson a construction permit,
authorizing the construction of a new Channel 287, Class C FM station
serving Des Moines, New Mexico, with an antenna height of radiation
center above ground of 14 meters on an antenna structure with an
overall height above ground of 32 meters, and effective radiated power
of 82 kW. The construction permit expired on June 28, 2009. On
February 9, 2009, prior to the expiration of its construction permit,
Hodson filed an application to modify the construction permit by
moving the station approximately 34 miles from its permitted location
and changing the community of license of the station from Des Moines,
New Mexico, to Raton, New Mexico. The modification application also
proposed to change the station from Class C to Class A, change the
antenna height of radiation center above ground from 14 meters on an
antenna structure with an overall height above ground of 32 meters to
an antenna height of radiation center above ground of 12 meters with
an overall height of 12.2 meters above ground level, and decrease the
station's power from 82 kW to 2 kW. The modification application was
dismissed on June 18, 2009. No other modification applications were
filed and no authorization for program test authority or operational
authority has ever been issued by the FCC for KHOD(FM).
3. On June 24, 2008, in response to multiple complaints, a Denver Office
agent investigated KHOD(FM)'s operation. The agent observed that the
station was in operation and was being operated from a location in
Raton, New Mexico, approximately 34 miles northwest of its authorized
location in Des Moines, New Mexico.
4. On June 25, 2008, the Denver agent inspected KHOD(FM) and observed
that the station continued to operate from the Raton, New Mexico,
studio/transmitter site. The inspection revealed, among other matters,
that KHOD(FM) had no STA or waiver to operate on-air, or to operate
from its current location. The agent interviewed the owner of Hodson
Broadcasting. Hodson acknowledged that the KHOD(FM) signal in Raton,
New Mexico, does not reach the KHOD(FM) construction permit's
community of license of Des Moines, New Mexico. The agent warned
Hodson concerning the unauthorized operation but Hodson insisted that
KHOD(FM) must stay on the air to serve Raton, New Mexico.
5. On July 1, 2008, the Denver agent contacted Hodson and inquired about
KHOD(FM)'s on air status. Hodson stated KHOD(FM) was still on the air
and the Denver agent verbally warned Hodson about continued KHOD(FM)
operation.
6. On October 7, 2008, and October 9, 2008, the Denver Office received
telephone complaints concerning interference to home electronic
entertainment equipment ("HEEE") from nearby businesses. The
complainants alleged that the interference started on October 6, 2008,
and that KHOD(FM) could be heard across the entire FM band.
7. On November 17, 2008, after determining that the KHOD(FM)'s
construction permit was in "Off Air" status, and that no STA, waivers,
or authorization, had been granted to Hodson to operate KHOD(FM), the
Denver Office issued a NAL in the amount of $10,000 to Hodson. In the
2008 NAL, the Denver Office found that Hodson apparently willfully and
repeatedly violated Section 73.1620 of the Rules by operating
KHOD(FM) at variance from its authorization. Hodson filed a response
on December 19, 2008, arguing that it has filed applications and STA
requests to legitimize its operation; that it should be treated as a
small business concern; and that it lacks the ability to pay the
proposed forfeiture amounts.
8. On December 10, 2008, a Denver agent again investigated KHOD(FM)'s
operation. The agent observed that the station was in operation and
was being operated from a location in Raton, New Mexico, approximately
34 miles northwest of its authorized location in Des Moines, New
Mexico.
9. On December 11, 2008, the Denver agent inspected KHOD(FM) and observed
that the station continued to operate from the Raton, New Mexico,
studio/transmitter site. The inspection revealed that, among other
matters, KHOD (FM) had no STA/waiver to operate on-air, or to operate
from its current location, and transmitted spurious signals on
approximately 103.8 MHz and 106.7 MHz at -38 to -42 dB below KHOD's
fundamental frequency of 105.3 MHz. The agent interviewed the owner,
an employee and a contractor of Hodson Broadcasting. Hodson
acknowledged that the KHOD(FM) signal in Raton, New Mexico, did not
reach Des Moines, New Mexico, the community of license for the
KHOD(FM) construction permit. The agent warned Hodson concerning the
unauthorized operation. Hodson voluntarily shut down the transmitter
and stated that he would attempt to obtain a STA from the Commission
to resume operation. On December 29, 2008, Hodson filed an STA request
with the Commission. That request was denied on April 17, 2009.
10. Reports received by the Denver Office revealed that KHOD(FM) continued
to operate on or about January 2, 2009, through February 4, 2009, and
again from February 18, 2009, through March 20, 2009.
11. On April 21, 2009, the Denver Office issued a NAL in the amount of
$10,000 to Hodson. In the 2009 NAL, the Denver Office found that
Hodson apparently willfully and repeatedly violated Section 73.1620
of the Rules by operating KHOD(FM) at variance from its authorization.
Hodson filed a response on May 20, 2009, reiterating its arguments
that it has filed applications and STA requests to legitimize its
operation; that it should be treated as a small business concern; and
that it lacks the ability to pay the proposed forfeiture amounts.
12. On October 3, 2009, investigation by agents from the Denver Office
revealed that Hodson continued to operate KHOD(FM) in Raton, New
Mexico, at variance with the terms of its construction permit and
Section 73.1620 of the Rules.
III. DISCUSSION
13. 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.
14. In its responses, Hodson details its efforts and difficulties in
attempting to secure a construction permit and to construct KHOD(FM),
including its filing of an allocation petition, participating in
competitive bid auctions, dealing with engineering and siting issues,
and the filing of the modification application and STA request.
Despite the long and varied explanations contained in Hodson's
responses, Hodson has provided no evidence that it has any authority
to actually operate KHOD(FM) and has not produced any authorization
conferring authority on Hodson to operate KHOD(FM) at variance from
its construction permit
15. Section 73.1620 of the Commission's rules provides, in pertinent part,
that program tests may be conducted by permittees, upon completion of
construction, so long as the Commission is notified of the program
tests and a license application is filed within 10 days thereafter.
However, a special operating condition/ restriction was placed on the
KHOD(FM) construction permit which states "[t]he automatic program
test provisions of Section 73.1620 of the Commission's rules do not
apply in this case. A formal request for program test authority must
be filed in conjunction with FCC Form 302-FM, application for license,
before program tests will be authorized." Moreover, the facilities
tested must have been constructed in accordance with the terms of the
construction permit and the technical provisions of the application in
order to avert air navigation hazards and avoid interference to other
broadcast stations. Otherwise, the station is subject to revocation
of license or permit, or imposition of a forfeiture. Review of the
Commission's databases reveals that at no time since the grant of the
KHOD(FM) construction permit in 2006, has Hodson been given program
test authority, or any authority to operate KHOD(FM).
16. Hodson also attempts to justify its operation of KHOD(FM) by arguing
that the operation was actually "equipment tests" pursuant to Section
73.1610 of the Rules which states that "[d]uring the process of
construction of a new broadcast station, the permittee, after
notifying the FCC in Washington, D.C. may, without further authority
from the FCC, conduct equipment tests for the purpose of making such
adjustments as may be necessary to assure compliance with the terms of
the construction permit, the technical provisions of the application
therefore, the rules and regulation and the applicable engineering
standards." We find that Hodson is incorrect in this assertion.
Section 73.1610(a) allows equipment tests to "assure compliance with
the terms of the construction permit." Hodson has not constructed
KHOD(FM) to conform with the terms of the construction permit. Hodson
has constructed KHOD(FM) 34 miles away from its permitted site, at a
lower height above ground level and with a lower effective radiated
power, in an attempt to cover a different community of license than
the one assigned to KHOD(FM) in its construction permit. We therefore
find that Section 73.1610(a) did not confer any authority on Hodson to
operate KHOD(FM) at variance with its construction permit.
17. Hodson did file a modification application and STA request aimed at
obtaining approval to operate with the facilities Hodson constructed
for KHOD, both of which have been dismissed or denied. In any event,
neither the filing of a modification application nor STA request, nor
the filing of a petition for reconsideration conferred any operational
authority on Hodson to operate KHOD(FM).
18. Hodson also questions the amount of the forfeitures proposed against
it. We find no error in the amounts proposed by the Denver Office. In
the past, the amount of $10,000 has been proposed against a broadcast
station permittee for operating at variance from its construction
permit when the permittee had constructed a station at a lower power
and a lower antenna height than authorized. Hodson not only
constructed KHOD(FM) at a lower power and lower antenna height, but
also at a location 34 miles away from its authorized site. Hodson also
argues that it should be treated as a small business in accordance
with Section 223 of the Small Business Regulatory Fairness Act of 1996
("SBFRA"), and Section 603 of the Regulatory Flexibility Act ("RFA").
We find that Hodson has been afforded the analysis required pursuant
to the Commission's Rules and precedent. In both the 2008 NAL and the
2009 NAL, the Denver Office stated that it applied Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules
to Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement") as well as Section 1.80 of the Commission's Rules, to the
facts in each NAL before determining the appropriate forfeiture amount
to proposes. The Commission has previously held that its policies, as
detailed in the Forfeiture Policy Statement, comply with Section 223
of the SBRFA. In addition, when enacting the Forfeiture Policy
Statement, the Commission detailed its compliance with the RFA,
specifically Section 603 of the RFA.
19. Hodson argues that it lacks the ability to pay the two proposed
$10,000 forfeitures and submits three years of tax records to support
its claim. We have reviewed Hodson's records and its responses. We
note that Hodson's tax records, standing alone, may arguably support
its asserted inability to pay argument. While inability to pay a
forfeiture is one of the downward criteria we must consider pursuant
to the Forfeiture Policy Statement and Section 1.80, there are
multiple upward criteria we must also consider, including, among
others, intentional violation and repeated or continuous violation.
The further investigation by the Denver Office revealed that as of
October 3, 2009, Hodson continued to operate KHOD(FM) in Raton, New
Mexico. Hodson's intentional violation of the rules in constructing
KHOD(FM) at variance from its construction permit, as well as Hodson's
continuous and intentional operation of the station at variance from
its construction permit, outweigh any evidence of its inability to pay
the forfeitures. Applying the Forfeiture Policy Statement and Section
1.80 to the instant cases, we find that no reduction is warranted. We
therefore decline to decrease the forfeiture amounts and we order
Hodson to file a report with the Denver Office detailing its
compliance with its construction permit and this Order within 30 days
of the date of this Order.
20. We have examined the responses to the 2008 NAL and 2009 NAL pursuant
to the statutory factors above, and in conjunction with the Forfeiture
Policy Statement and Section 1.80 of the Rules. As a result of our
review, we conclude that Hodson willfully and repeatedly violated
Section 73.1620 of the Rules. Considering the entire record and the
factors listed above, we find that Hodson is liable for a $20,000
forfeiture.
IV. ORDERING CLAUSES
21. 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, Hodson Broadcasting,
IS LIABLE FOR A MONETARY FORFEITURE in the amount of $20,000 for
willfully and repeatedly violating Section 73.1620 of the Rules.
22. IT IS FURTHERED ORDERED THAT, within 30 days of the release of this
Order, Hodson Broadcasting file with the District Director, Denver
Office, the report required in paragraph 19 above.
23. 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.
Hodson Broadcasting shall also send electronic notification on the
date said payment is made to WR-Response@fcc.gov.
24. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Hodson
Broadcasting at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S: 73.1620.
See File No. BNPH-20060309ADA, granted June 28, 2006.
See File No, BMOH-20090209ABC, dismissed June 18, 2009.
Hodson filed a petition for reconsideration of the modification
application dismissal on July 13, 2009.
The agent also noted that the station was being operated with a power
level, antenna height, and antenna structure at variance from its
construction permit. Specifically, KHOD(FM) operated with less than Class
C FM facilities by operating with less than 20 watts transmitter power
output, an ERP less than 82 kW, and operated from a building rooftop
versus the authorized antenna structure.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932800001
(Enf. Bur., Western Region, Denver Office, released November 17, 2008).
47 C.F.R. S: 73.1620.
The agent also noted that the station was being operated with a power
level, antenna height, and antenna structure at variance from its
construction permit BNPH-20060309ADA. Specifically, KHOD(FM) operated with
less than Class C FM facilities by operating with less than 20 watts
transmitter power output, and operated from a building rooftop versus the
authorized antenna structure.
See File No. BSTA-20081229ACK, denied April 17, 2009. Hodson filed a
petition for reconsideration of the STA request denial on May 19, 2009.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932800004
(Enf. Bur., Western Region, Denver Office, released April 21, 2009).
47 C.F.R. S: 73.1620.
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: 73.1620.
KHOD(FM) Construction Permit, granted June 28, 2006.
47 C.F.R. S: 73.1620; 47 U.S.C. S: 319(c).
See 47 U.S.C. S:S: 312(a)(2), 319(c), and 503(b)(1)(A) (forfeiture
appropriate for willful or repeated failure to comply substantially with
the terms and conditions of any permit or other authorization issued by
the Commission).
47 C.F.R. S: 73.1610(a).
See 47 C.F.R. S: 73.1690(b) (providing that modifications, such as those
made by Hodson to its operation, may be made only after the grant of a
construction permit by the Commission). See also Pacifica Broadcasting
Company, 18 FCC Rcd 22347 (EB 2003).
See 47 C.F.R. S: 73.1635 (providing that special temporary authority must
be sought to permit the operation of a broadcast facility for a limited
period at variance from its authorization, and that authority must be
received prior to the commencement of such operation).
See A-O Broadcasting Corporation, 23 FCC Rcd 603, 615 (2008) (the filing
of a petition for reconsideration of the dismissal of license-to-cover and
license renewal applications had no impact on the effectiveness of those
actions); see also 47 C.F.R. S: 1.106(n) (the filing of a petition for
reconsideration shall not excuse any person from complying with or obeying
any decision, order or requirement of the Commission, or operate in any
manner to stay or postpone the enforcement thereof).
See Lauren A. Colby, Esq., 21 FCC Rcd 1248 (2006).
Pub.L.No. 104-121, S: 223, 110 Stat at 862.
5 U.S.C. S: 603.
In a footnote in each of its responses, Hodson invokes Section 257 of the
Act, 47 U.S.C. S: 257, and argues that the proposed forfeitures constitute
"yet another market entry barrier" for KHOD(FM). We find no merit to this
assertion and note that in the Commission's most recent report to
Congress, required by Section 257(c) of the Act, the Commission stated
that forfeitures are assessed in accordance with Section 503(b) of the
Act, Section 1.80 of the Rules, and the Forfeiture Policy Statement which
includes an analysis, as necessary, as required by Section 223 of SBFRA.
In the Matter of Section 257 Triennial Report to Congress, 22 FCC Rcd
21132, 21189 (2007).
Forfeiture Policy Statement, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
Forfeiture Policy Statement, 12 FCC Rcd at 17109.
Forfeiture Policy Statement, 12 FCC Rcd at 17119, Appendix C.
47 C.F.R. S: 73.1620.
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.1620.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-2404
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Federal Communications Commission DA 09-2404