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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-11-KC-0009
KM Radio of Independence, LLC )
NAL/Acct. No.: 201232560001
Licensee of Stations KQMG and )
KQMG-FM, FRN: 0010976108
)
Independence, Iowa; Facility ID Nos.: 42077;
) 42080
and Owner of Antenna Structure
#1053693 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: February 7, 2012 Released: February 7, 2012
By the District Director, Kansas City Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that KM Radio of Independence, LLC (KM Radio or Licensee),
licensee of Stations KQMG and KQMG-FM, in Independence, Iowa, and
owner of antenna structure number 1053693 (hereinafter referred to as
"Tower") also located in Independence, Iowa, apparently willfully
and/or repeatedly violated Sections 11.35, 17.51, and 73.3526 of the
Commission's rules (Rules), and Section 303(q) of the Communications
Act of 1934, as amended (Act), by failing (with respect to both of its
stations) to: maintain operational emergency alert system (EAS)
equipment; exhibit required obstruction lighting on the Tower; and
maintain and make available a complete public inspection file.
Furthermore, specifically with respect to Station KQMG-FM, we find
that KM Radio apparently willfully violated Section 73.1560(b) of the
Rules by operating Station KQMG-FM with more than authorized
transmitter output power. After adjusting the possible forfeiture
based on the Licensee's limited financial resources, we conclude that
KM Radio is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000). In addition, no later than thirty (30)
calendar days from the date of this NAL, KM Radio must submit a
statement signed under penalty of perjury that it has repaired its EAS
equipment and tower lighting, it is operating within authorized power
limits, and it is maintaining two complete public inspection files for
Stations KQMG and KQMG-FM.
II. BACKGROUND
2. On January 28, 2011, in response to a complaint, an agent from the
Enforcement Bureau's Kansas City Office (Kansas City Office) contacted
the Federal Aviation Administration (FAA) and learned that no one had
contacted the FAA about a light outage on the Tower, and that a
Notice to Airmen (NOTAM) had not been issued for the Tower. On January
29, 30, and 31, 2011, an officer with the Independence police
department observed that only one non-flashing center red beacon on
the Tower was lighted after sunset. On January 31, 2011, KM Radio
notified the FAA about the lighting outages on the Tower. On February
9, 2011, agents from the Kansas City Office confirmed that all lights
on the Tower were dark, except for a non-flashing center red beacon.
3. On February 10, 2011, agents from the Kansas City Office inspected the
main studio of Stations KQMG and KQMG-FM during regular business
hours. In response to a request to inspect the stations' public
inspection files, the agents were provided a single consolidated file
for the two stations. The public inspection file contained no
issues/programs lists for either station after 2001. Stations KQMG
and KQMG-FM also had no logs of any EAS tests being sent or received.
The operator on duty acknowledged that only one EAS test had been
received since November 1, 2010, the date he joined the stations, and
that no EAS tests had been sent. When the agents requested that a test
be sent, the stations were unable to transmit the audio for the EAS
test. The operator on duty also stated that, since he joined the
stations on November 1, 2010, all of the lighting on the Tower except
for the center beacon had been out and that no repairs had been made.
The agents also observed the power meter for Station KQMG-FM's
unattended transmitter operating at 1.87 kW, which is 108% of its
authorized transmitter output power. Neither station had any station
logs, and both unattended transmitters could not be accessed remotely.
4. On February 28, 2011, the Kansas City Office issued a Letter of
Inquiry (LOI) to KM Radio. In its response, KM Radio stated that: (1)
its EAS logs are unavailable and were either misplaced or not
maintained; (2) its management did not know that its EAS equipment was
damaged prior to receipt of the LOI, and that it is in the process of
repairing its EAS equipment; (3) its management did not learn of the
Tower light outage until it received the LOI, and that it has
instructed its engineer to make the needed repairs; (4) its Tower may
not have been observed visually on a daily basis, and that it has
instructed all employees to monitor and report any light outages; and
(5) it took transmitter readings one week prior to the inspection, and
that any overpower operations were inadvertent.
III. DISCUSSION
5. Section 503(b) of the 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. Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Failure to Maintain Operational EAS System Equipment
6. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source unless the station
affirmatively requests authority to refrain from participation and the
request is approved by the Commission. The EAS enables the President
and state and local governments to provide immediate communications
and information to the general public. State and local area plans
identify local primary sources responsible for coordinating carriage
of common emergency messages from sources such as the National Weather
Service or local emergency management officials. Required monthly and
weekly tests originate from EAS Local or State Primary sources and
must be retransmitted by the participating station. As the nation's
emergency warning system, the EAS is critical to public safety, and we
recognize the vital role that broadcasters play in ensuring its
success. The Commission takes seriously any violations of the Rules
implementing the EAS and expects full compliance from its licensees.
7. Specifically, Section 11.35(a) of the Rules requires all broadcast
stations to ensure that EAS encoders, EAS decoders, and Attention
Signal generating and receiving equipment are installed and
operational so that the monitoring and transmitting functions are
available when the station is in operation. On February 10, 2011,
agents from the Kansas City Office observed that, while Stations KQMG
and KQMG-FM were operating, the stations were unable to transmit an
EAS test. KM Radio admitted that it did not have any EAS logs and had
no evidence that any EAS tests had ever been sent or received by the
stations. On February 10, 2011, the operator on duty stated that the
stations had not sent an EAS test since at least November 1, 2010.
Thus, based on the evidence before us, we find that KM Radio
apparently willfully and repeatedly violated Section 11.35(a) of the
Rules by failing to maintain fully operational EAS equipment while the
stations were in operation.
B. Failure to Maintain Required Obstruction Tower Lighting
8. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Section 17.51(a) of the Rules requires all red
obstruction lighting to be exhibited from sunset to sunrise unless
otherwise specified. The Tower is 130 meters above ground in overall
height and is required to be painted and lit. KM Radio's management
does not know when the lights on its Tower first became inoperable,
but, according to its station operator, all of the Tower's lights,
except for a center non-flashing red beacon, were out at least as of
November 1, 2010. A local police officer also confirmed that all, but
one, of the Tower's lights were not working as of January 29, 2011. KM
Radio did not contact the FAA about the Tower light outage until
January 31, 2011. Further, KM Radio admitted that its employees may
not have been visually monitoring the Tower's lights on a daily basis.
Thus, based on the evidence before us, we find that KM Radio
apparently willfully and repeatedly violated Section 303(q) of the Act
and Section 17.51(a) of the Rules by failing to exhibit required red
obstruction lighting on the Tower after sunset from at least November
1, 2010, until January 31, 2011.
C. Failure to Operate Station at Authorized Power Level
9. Section 73.1560(b) of the Rules states that "the transmitter output
power of an FM station, . . . which is authorized for output power
more than 10 watts must be maintained as near as practicable to the
authorized transmitter output power and may not be less than 90% nor
more than 105% of authorized power." On February 10, 2011, agents
from the Kansas City Office observed the power meter for Station
KQMG-FM's unattended transmitter operating with 108% of authorized
power. KM Radio maintained no station logs and was unaware of when it
began operating overpower. Although KM Radio asserts its violation was
inadvertent, we find this apparent violation willful because KM Radio
consciously operated Station KQMG-FM on February 10, 2011. Moreover,
on February 10, 2011, KM Radio had no means to monitor remotely its FM
unattended transmitter, as the telephone line to the transmitter had
been disconnected. As such, KM Radio's failure to ensure a connection
for the unattended transmitter also renders this apparent violation
willful. Based on the evidence before us, we find that KM Radio
apparently willfully violated Section 73.1560(b) of the Rules by
operating Station KQMG-FM with more than authorized transmit power.
D. Failure to Maintain and Make Available a Public Inspection File
10. Section 73.3526(a) of the Rules states that "[e]very permittee or
licensee of an AM, FM, TV or a Class A station in the commercial
broadcast services shall maintain a public inspection file containing
the material" set forth in this Section. The public inspection file
must be maintained at the main studio of the station, and must be
available for public inspection at any time during regular business
hours. Section 73.3526(e)(12) of the Rules states that commercial AM
and FM broadcast stations must retain in the file "every three months
a list of programs that have provided the station's most significant
treatment of community issues during the preceding three month period.
. . . The lists described in this paragraph shall be retained in the
public inspection file until final action has been taken on the
station's next license renewal application." On February 10, 2011, in
response to a request made during normal business hours, KM Radio
provided a single-and not separate files for each station, as required
under the Rules-public inspection file for Stations KQMG and KQMG-FM.
In addition, the agents found that the single public inspection file
contained no issues/programs lists after 2001. Based on the evidence
before us, we find that KM Radio apparently willfully and repeatedly
violated Section 73.3526 of the Rules by failing to maintain complete
public inspection files for Stations KQMG and KQMG-FM.
E. Proposed Forfeiture and Reporting Requirement
11. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for: (1) failure to
maintain operational EAS equipment is $8,000; (2) failure to comply
with prescribed lighting and/or marking is $10,000; (3) exceeding
power limits is $4,000; and (4) violation of public file rules is
$10,000. 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.
12. Applying the base forfeiture amounts, KM Radio would be apparently
liable for a total forfeiture of $42,000, consisting of the following:
(1) $8,000 for non-operational EAS equipment; (2) $10,000 for failure
to display required lighting on the Tower; (3) $4,000 for exceeding
power limits; and (4) $20,000 for violation of public inspection file
rules ($10,000 for each station). During our investigation, KM Radio
submitted financial and other information concerning its stations
which, after our review, establishes that it would be unable to pay a
$42,000 forfeiture. With regard to an individual's or entity's
inability to pay claim, the Commission has determined that, in
general, gross revenues are the best indicator of an ability to pay a
forfeiture. Having reviewed KM Radio's submitted documentation
(including gross revenue figures), and after applying the Forfeiture
Policy Statement, Section 1.80 of the Rules, and the statutory factors
to the instant case, we conclude that KM Radio is apparently liable
for a $10,000 forfeiture.
13. In addition to the proposed forfeiture, we direct KM Radio to submit a
written statement signed under penalty of perjury, pursuant to Section
1.16 of the Rules, by an officer or director of KM Radio, stating that
the Licensee has repaired its EAS equipment and tower lighting, it is
operating its stations within authorized power limits, and it is
maintaining two separate and complete public inspection files for
Stations KQMG and KQMG-FM. This statement must be provided to the
Kansas City Office at the address listed in paragraph 18 within thirty
(30) calendar days of the release date of this NAL.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's Rules, KM Radio of
Independence, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
violations of Section 303(q) of the Act, and Sections 11.35, 17.51,
73.1560(b), and 73.3526 of the Rules.
15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order, KM
Radio of Independence, LLC SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking cancellation of
the proposed forfeiture.
16. IT IS FURTHER ORDERED that KM Radio of Independence, LLC SHALL SUBMIT
a statement as described in paragraph 13 to the Kansas City Office
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order.
17. 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 Account number and FRN
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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or E-mail: ARINQUIRIES@fcc.gov. KM Radio shall send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
18. The written statement seeking 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. Mail the written statement to
Federal Communications Commission, Enforcement Bureau, South Central
Region, Kansas City Office, 520 NE Colbern Rd., 2nd Floor, Lee's
Summit, MO, 64086 and include the NAL/Acct. No. referenced in the
caption. KM Radio also shall e-mail the written response to
SCR-Response@fcc.gov.
19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail to KM Radio of Independence, LLC
at 3654 West Jarvis Avenue, Skokie, Illinois 60076, and to its
counsel, Aaron P. Shainis, Shainis & Peltzman, Chartered, 1850 M
Street NW, Suite 240, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Ronald D. Ramage
District Director,
Kansas City Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 11.35, 17.51, 73.3526.
47 U.S.C. S: 303(q).
47 C.F.R. S: 73.1560(b).
See 47 C.F.R. S: 17.48 (requiring owners of registered antenna structures
that have been assigned lighting specifications to report immediately to
the FAA any observed or otherwise known extinguishment of any flashing
obstruction light not corrected within 30 minutes).
The FAA issued a NOTAM for the antenna structure on January 28, 2011, at
the agent's request.
KM Radio acquired both stations in 2003. See File No. BAL-20030815AET,
granted October 2, 2003.
The agents only found a note in the station records, dated November 1,
2010, that a "part" for the EAS printer was on order.
During the test, the stations's audio for the regular programming was not
muted.
See Letter from Robert C. McKinney, District Director, Kansas City Office,
to KM Radio (Feb. 28, 2011) (on file in EB-11-KC-0009).
Letter from Aaron P. Shainis, Counsel for KM Radio of Independence, LLC,
to Robert C. McKinney, District Director, Kansas City Office at 1 (Apr. 4,
2011) (on file in EB-11-KC-0009) (LOI Response).
Id.
Id. at 2.
Id.
Id. at 3.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (Southern
California Broadcasting Co.).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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."
See 47 C.F.R. S:S: 11.11, 11.41.
See 47 C.F.R. S:S: 11.1, 11.21.
See 47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials, and
National Weather Service personnel in order to properly activate the EAS
for state and local emergency alerts. The state plans include the EAS
header codes and messages to be transmitted by the primary state, local
and relay EAS sources.
See 47 C.F.R. S: 11.35(a).
See LOI Response at 1.
Section 11.35(b) of the Rules allows licenses to operate for 60 days
pending the repair or replacement of defective EAS equipment without
further FCC authority. Entries must be made in the broadcast station log
showing the date and time the equipment was removed and restored to
service. See 47 C.F.R. S: 11.35(b). KM Radio did not order any replacement
parts for its EAS equipment until after the inspection, so KM Radio cannot
claim that its operations fell under this exception. See LOI Response at
1.
See 47 U.S.C. S: 303(q).
See 47 C.F.R. S: 17.51(a).
See Antenna Structure Registration database for antenna structure number
1053693. See also 47 C.F.R. S: 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted).
See LOI Response at 2.
See id. See also 47 C.F.R. S: 17.47(a) (requiring owners of antenna
structures that are required to be lighted to make an observation of the
antenna structure's lights at least once each 24 hours either visually or
by observing an automatic properly maintained indicator designed to
register any failure of such lights).
47 C.F.R. S: 73.1560(b).
KM Radio also had no means to monitor remotely its unattended AM
transmitter, which had a broken AM antenna current meter. Agents, however,
were unable to determine whether Station KQMG was operating overpower.
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(b).
47 C.F.R. S: 73.3526(c).
47 C.F.R. S: 73.3526(e)(12).
See 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), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
47 C.F.R. S: 1.16.
See 47 U.S.C. S:S: 303(q), 503(b), 47 C.F.R. S:S: 0.111, 0.204, 0.311,
0.314, 1.80, 11.35, 17.51, 73.1560(b), 73.3526.
Because the proposed forfeiture already considers the Licensee's financial
circumstances, which we have determined supports a claim for inability to
pay a $42,000 forfeiture, we will not entertain any request for further
reduction of the $10,000 forfeiture based on that claim. The Licensee,
however, may still submit a written statement seeking cancellation of the
proposed forfeiture if it can demonstrate that the Bureau committed legal
error in its findings of fact and/or conclusions of law.
See 47 C.F.R. S: 1.1914
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-157
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Federal Communications Commission DA 12-157