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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                    )                                
                                                                     
     In the Matter of               )                                
                                                                     
     Donald D. Coss                 )   File Number: EB-10-PO-0031   
                                                                     
     Licensee of Station KCKX(AM)   )   NAL/Acct. No.: 201132920001  
                                                                     
     Stayton, Oregon                )   FRN: 0007803869              
                                                                     
     Facility ID # 65569            )                                
                                                                     
                                    )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: December 1, 2010 Released: December 3, 2010

   By the Resident Agent, Portland Office, Western Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Donald D. Coss ("Coss"), licensee of station KCKX(AM), in
       Stayton, Oregon, apparently willfully and repeatedly violated Section
       73.1745(a) of the Commission's Rules ("Rules") by failing to operate
       in accordance with the authorized nighttime power specified on the
       station's license. We conclude that Coss is apparently liable for a
       forfeiture in the amount of six thousand dollars ($6,000).

   II. BACKGROUND

    2. On April 22, 2010, in response to a complaint that Station KCKX(AM)
       was not lowering power at night, an agent from the Enforcement
       Bureau's Portland Office monitored the Station KCKX(AM) signal from a
       location approximately one kilometer from the station's antenna prior
       to the local sunset of 8:00 p.m. The agent then conducted field
       strength measurements which resulted in a value of approximately 115
       mV/m. After local sunset, the Portland agent again conducted field
       strength measurements from the same location, which produced the same
       value of approximately 115 mV/m.

    3. On April 23, 2010, the Portland agent returned to Stayton and
       monitored Station KCKX(AM). Using the same procedures as on April 22,
       2010, the agent measured the field strength of Station KCKX(AM) at 115
       mV/m prior to the local sunset time and at 115 mV/m after the local
       sunset time. Therefore, the agent determined that Station KCKX(AM) did
       not reduce power appropriately for nighttime operation.

    4. In addition, on April 26, 2010, the Portland agent inspected Station
       KCKX(AM) at its control point located in Woodburn, Oregon. Station
       KCKX(AM) is authorized to operate with a non-directional pattern on
       1460 kHz with 1000 watts during daytime hours and 15 watts during
       nighttime hours. The Portland agent requested a demonstration of a
       reduction of the authorized operating daytime power of 1000 watts to
       the authorized nighttime power of 15 watts. A technical representative
       from Station KCKX(AM), after consulting with a contract engineer by
       telephone, attempted to dial out preprogrammed codes to the
       transmitter site to demonstrate the power reduction. The technical
       representative was not able to reduce the nighttime power to 15 watts
       for nighttime operation. During an interview with the Portland agent,
       the owner of Station KCKX(AM) stated that he was aware of the
       requirement to reduce the operating power to the authorized power
       levels for nighttime operation but stated that it was too expensive 
       to maintain the calibrated time-keeping devices, power switching
       devices, and other equipment necessary to effect the timely change in
       power.

   III. DISCUSSION

    5. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
       provides that any person who willfully or repeatedly fails to comply
       substantially with the terms and conditions of any license, or
       willfully or repeatedly fails to comply with any of the provisions of
       the Act or of any rule, regulation or order issued by the Commission
       thereunder, shall be liable for a forfeiture penalty. The term
       "willful" as used in Section 503(b) has been interpreted to mean
       simply that the acts or omissions are committed knowingly. The term
       "repeated" means the commission or omission of such act more than once
       or for more than one day.

    6. 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 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. The Rules define
       daytime as the "period of time between local sunrise and local sunset"
       and nighttime as the "period between local sunset and local sunrise."
       In Stayton, Oregon, during the month of April, local sunrise occurs at
       6:30 a.m., and local sunset occurs at 8:00 p.m. Therefore, during the
       month of April, Station KCKX(AM) is authorized to operate at 1000
       watts during the daytime, i.e. between 6:30 a.m. and 8:00 p.m., and at
       15 watts during the nighttime, i.e. between 8:00 p.m. and 6:30 a.m..

    7. On April 22 and April 23, 2010, the Portland agent determined that
       Station KCKX(AM) was not reducing its operating power after 8:00 p.m.,
       as required by its authorization. Therefore, the violation was
       willful. The violation also occurred on more than one day, and was
       therefore repeated. Based on the evidence before us, we find that Coss
       apparently willfully and repeatedly violated Section 73.1745(a) of the
       Rules by failing to operate Station KCKX(AM) in accordance with the
       station's authorized power as specified on its license.

    8. Pursuant to the  Commission's Forfeiture Policy Statement and Section
       1.80 of the Rules, the base forfeiture amount for exceeding power
       limits is $4,000 per violation. In assessing the monetary forfeiture
       amount, we must also take into account the statutory factors set forth
       in Section 503(b)(2)(E) of the Act, which include the nature,
       circumstances, extent, and gravity of the violations, 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. Here, Coss admitted to the Portland agent that he was aware
       of the requirement to operate Station KCKX(AM) at the power levels
       authorized on its license. Moreover, the Portland agent had previously
       issued a Notice of Violation to Coss for the same violation in
       November 2000. Given Coss' history of noncompliance with the Rules,
       and Section 73.1745(a) specifically, we believe an upward adjustment
       of the base forfeiture is appropriate. Applying the Forfeiture Policy
       Statement, Section 1.80, and the statutory factors to the instant
       case, we conclude that Coss  is apparently liable for a forfeiture in
       the amount of  $6,000. We direct Coss to submit a sworn statement
       within thirty days of release of this NAL describing the specific
       action(s) taken to correct the cited violation and to preclude
       recurrence, and specifying when the corrective action(s) were taken.
       We caution Coss that future violations of our rules may subject him to
       more severe enforcement penalties.

   IV. ORDERING CLAUSES

    9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.311,
       0.314 and 1.80 of the Commission's Rules, Donald D. Coss is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       six thousand dollars ($6,000) for apparently willfully and repeatedly
       violating Section 73.1745(a) of the Rules.

   10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's Rules within thirty days of the release date of this
       Notice of Apparent Liability for Forfeiture, Donald D. Coss SHALL PAY
       the full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

   11. IT IS FURTHER ORDERED that, Donald D. Coss SHALL SUBMIT a sworn
       statement, as described in paragraph 8, within thirty days of the
       release date of this NAL. The statement  must be mailed to Federal
       Communications Commission, Enforcement Bureau, Western Region,
       Portland Resident Agent Office, P.O. Box 61469, Vancouver, Washington,
       98666-1469.

   12. Payment of the forfeiture must be made by credit card, 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. Donald D. Coss shall also
       send electronic notification on the date said payment is made to
       WR-Response@fcc.gov.

   13. The written statement seeking reduction or cancellation of the
       proposed forfeiture, if any, must include a detailed factual statement
       supported by appropriate documentation and affidavits pursuant to
       Sections 1.80(f)(3) and 1.16 of the Rules. The written statement  must
       be mailed to Federal Communications Commission, Enforcement Bureau,
       Western Region, Portland Resident Agent Office, P.O. Box 61469,
       Vancouver, Washington, 98666-1469 and must include the NAL/Acct. No.
       referenced in the caption. An electronic copy shall be sent to
       WR-Response@fcc.gov.

   14. The Commission will not consider reducing or canceling a forfeiture in
       response to a claim of inability to pay unless the petitioner submits:
       (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.

   15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by Certified Mail, Return Receipt
       Requested, and regular mail, to Donald D. Coss at his address of
       record.

   FEDERAL COMMUNICATIONS COMMISSION

   Binh Nguyen

   Resident Agent

   Portland Office

   Western Region

   Enforcement Bureau

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

   The agent also captured Station KCKX(AM)'s relative signal strengths for
   its daytime and nighttime operations and determined that there was no
   reduction in signal strength for the nighttime operation.

   The Portland agent also captured the relative signal strengths on the
   mobile directing finding vehicle's display to compare the signal strengths
   before and after the local sunset time.

   See File No. BL-19870615AI, granted August 11, 1987.

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

   Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
   violations for which forfeitures are assessed under Section 503(b) of the
   Act, provides 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...." See, e.g., Southern California Broadcasting
   Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
   FCC Rcd 3454 (1992).

   Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
   to violations for which forfeitures are assessed under Section 503(b) of
   the Act, provides that "[t]he term `repeated', when used with reference to
   the commission or omission of any act, means the commission or omission of
   such act more than once or, if such commission or omission is continuous,
   for more than one day."

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

   Id.

   47 C.F.R. S: 73.14.

   See http://www.fcc.gov/mb/audio/bickel/srsstime.html.

   We note that the Enforcement Bureau has previously issued a Notice of
   Violation to Coss for failing to reduce the nighttime power of Station
   KCKX(AM), in violation of 47 C.F.R. S: 73.1745(a). See Notice of
   Violation, File No. EB-00-PO-220 (Enf. Bur., Western Region, Portland
   Office, rel. November 30, 2000).

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
   FCC Rcd 303 (1999); 47 C.F.R. S:1.80.

   47 U.S.C. S: 503(b)(2)(E).

   See Citicasters Licenses, L.P., Notice of Apparent Liability for
   Forfeiture, 22 FCC Rcd 1633 (Enf. Bur. Investigations & Hearings Div.
   2007) (upwardly adjusting a proposed forfeiture amount when a licensee has
   a history of similar violations over a seven-year period); see also WXDJ
   Licensing, Forfeiture Order, 25 FCC Rcd 3911 (Enf. Bur. Investigations &
   Hearings Div. 2010).

   47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1745(a).

   See 47 C.F.R. S: 1.1914.

   (...continued from previous page)

                                                              (continued....)

                                 Federal Communications Commission DA 10-2276

                                       2

   Federal Communications Commission DA 10-2276