Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of Entertainment Media Trust, Dennis J. Watkins, Trustee
   Licensee of Station KZQZ St. Louis, MO Licensee of Station KQQZ DeSoto, MO
   ) ) ) ) ) ) ) ) ) ) ) File No.: EB-10-KC-0020 NAL/Acct. No.: 201132560003
   FRN: 0014655476 Facility ID Nos.: 72391, 5281




   FORFEITURE ORDER

   Adopted: March 7, 2013 Released: March 7, 2013

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of eight thousand five hundred dollars ($8,500) to
       Entertainment Media Trust, Dennis J. Watkins, Trustee (Entertainment
       Media Trust or the Licensee), licensee of AM Station KZQZ, in St.
       Louis, Missouri and AM Station KQQZ, in DeSoto, Missouri for willful
       violation of Sections 73.1350 and 73.3526 of the Commission's rules
       (Rules) and willful and repeated violation of Section 73.1590 of the
       Rules.^ The noted violations involved Entertainment Media Trust's
       failure to (1) operate Station KZQZ in accordance with the terms of
       its station authorization, (2) make available complete public
       inspection files for Stations KZQZ and KQQZ, and (3) conduct required
       annual equipment performance measurements for Station KZQZ.

   II. BACKGROUND

    2. On May 19, 2011, the Enforcement Bureau's Kansas City Office (Kansas
       City Office) issued a Notice of Apparent Liability for Forfeiture
       (NAL) ^ ^ to Entertainment Media Trust for its operation of Station
       KZQZ with an incorrect directional pattern, its failure to conduct
       required equipment performance measurements for Station KZQZ in 2008
       and 2009, and its failure to maintain and make available complete
       public inspection files for Stations KZQZ and KQQZ. As described in
       detail in the NAL,^ an agent from the Kansas City Office conducted
       inspections of Stations KZQZ and KQQZ on April 21, 2010. In view of
       the record evidence, including the fact that agents from the
       Enforcement Bureau found public inspection file violations in two
       other stations owned by the Licensee on the same day as the inspection
       here, the NAL proposed a forfeiture of $25,000 against Entertainment
       Media Trust for violations of Sections 73.1350, 73.1590 and 73.3526 of
       the Rules. Entertainment Media Trust submitted a response to the NAL
       requesting reduction of the proposed forfeiture, because it asserts it
       (1) operated outside of station parameters due to an equipment
       malfunction, (2) maintained complete public inspection files and
       temporarily misplaced them during the inspection, (3) has a history of
       compliance with the Rules, and (4) is unable to pay the forfeiture.^

   III. DISCUSSION

    3. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Communications Act of 1934, as amended
       (Act),^ Section 1.80 of the Rules,^ and the Forfeiture Policy
       Statement.^ In examining Entertainment Media Trust's response, Section
       503(b)(2)(E) 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.^ As discussed below, we have considered Entertainment
       Media Trust's response in light of these statutory factors and reduce
       the forfeiture to $8,500 based on its documented inability to pay.

    A. Failure to Operate Station with Correct Directional Pattern

    4. We affirm the NAL's finding that Entertainment Media Trust violated
       Section 73.1350 of the Rules. Section 73.1350 of the Rules states that
       "[e]ach licensee is responsible for maintaining and operating its
       broadcast station in a manner which complies with the technical rules
       set forth elsewhere in this part and in accordance with the terms of
       the station authorization."^ As reflected in the NAL, on April 20,
       2010, an agent from the Kansas City Office observed Station KZQZ
       operate with a daytime directional pattern at night. Although
       Entertainment Media Trust does not dispute the agent's observations,
       it requests reduction of the proposed forfeiture because it asserts
       its violation was attributable to equipment failure.^ The Licensee
       states that its supervising engineer was out of town on April 20, 2010
       when the "equipment responsible for automatically switching the signal
       went offline and could not be timely restored."^ Entertainment Media
       Trust continues that the transmitter was switched manually from April
       21, 2010 until the supervisory engineer was able to restore the failed
       equipment.^ It also states that it has since "established procedures
       to monitor the automatic switching to verify it occurs as required."^

    5. Entertainment Media Trust does not dispute that, prior to April 21,
       2010, it had (1) no station personnel monitoring the station's
       transmitter, (2) no remote control equipment installed, (3) no
       automated monitoring equipment to determine if the station was
       operating outside authorized parameters for the pertinent time of day,
       and (4) no established monitoring procedures or schedules for the
       station to ensure compliance with the Rules and the station
       authorization. Therefore, although its equipment may have
       malfunctioned,^ Entertainment Media Trust's lack of monitoring and
       maintenance of its equipment resulted in its failure to detect the
       equipment malfunction and the improper directional pattern. These
       omissions rendered Entertainment Media Trust's violation willful.
       Accordingly, we find that Entertainment Media Trust willfully violated
       Section 73.1350 of the Rules by operating with an incorrect
       directional pattern and find no grounds to reduce the proposed
       forfeiture.

    B. Failure to Conduct Required Equipment Performance Measurements

    6. Similarly, we affirm the NAL's finding that Entertainment Media Trust
       violated Section 75.1590 of the Rules. That provision states, in
       relevant part, that "the licensee of each AM... station... must make
       equipment performance measurements for each main transmitter ...
       annually, ... with not more than 14 months between measurements..."^
       and requires such measurements be kept on file for two years and made
       available upon request.^ As set forth in the NAL, Entertainment Media
       Trust could not produce the equipment performance measurements for
       2008 and 2009 on April 20, 2010 and later admitted that it failed to
       conduct the tests in those years. In response to the NAL,
       Entertainment Media Trust states only that it "has established
       procedures for making required measurements relative to spurious and
       harmonic emissions required by S 73.1590(d)."^ Corrective action taken
       to come into compliance with the Rules is expected, however, and does
       not nullify or mitigate any prior forfeitures or violations.^ Thus, we
       find that Entertainment Media Trust willfully and repeatedly violated
       Section 73.1590 of the Rules by failing to conduct required equipment
       performance measurements for Station KZQZ in 2008 and 2009 and find no
       grounds to reduce the proposed forfeiture.

    C. Failure to Make Available a Complete Public Inspection File

    7. We also affirm the NAL's finding that Entertainment Media Trust
       violated Section 73.3526 of the Rules. Section 73.3526 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 that section.^
       As described in the NAL, an agent from the Kansas City Office
       requested to inspect the public inspection files for Station KQQZ and
       Station KZQZ on April 20, 2010 and found that its public inspection
       files were missing issues/programs lists for two quarters (Station
       KQQZ) and eight quarters (Station KZQZ), respectively, as well as
       comments received by Station KZQZ from the public via the station's
       webpage. Entertainment Media Trust does not deny these facts, but
       asserts that the "deficiencies in the KZQZ and KQQZ public files arose
       from the ... attendant consolidation of business operations of all
       four stations [KZQZ, KQQZ, WQQZ and KQQZ] into one location [in
       Belleville, Illinois] resulting in the temporary mislocation of
       certain portions of public files.... Offices were temporarily
       relocated along with files and furnishings during the construction
       process and the personnel on hand on [April 21, 2010] were unable to
       locate the relevant documents."^

    8. During the inspection of the Belleville main studio on April 21, 2010,
       station management mentioned the consolidation and that some public
       inspection file documents might be in a back room. The agent from the
       Kansas City Office gave station staff ample time to look through the
       boxes in the back room, but they were unable to locate the missing
       documents or any evidence that the documents had been maintained.
       Thus, even if Entertainment Media Trust did misplace the missing
       contents of its public inspection files during the consolidation, the
       Licensee's actions would still constitute a violation of Section
       73.3526 of the Rules. That section requires that the file be made
       available for public inspection upon request at the station's main
       studio, which at the time of the inspection was the Belleville
       location.^ Therefore, we find that Entertainment Media Trust willfully
       violated Section 73.3526 of the Rules by failing to make available
       complete public inspection files.

    D. Inability to Pay

    9. Entertainment Media Trust requests reduction of the proposed
       forfeiture based on its inability to pay.^ With regard to an
       individual's or entity's inability to pay, the Commission has
       determined that, in general, gross revenues are the best indicator of
       an ability to pay a forfeiture.^ Having reviewed Entertainment Media
       Trust's submitted documentation, we conclude that the forfeiture
       should be reduced further to $8,500, an amount within the range
       determined by the Bureau to not be excessive.

   IV. ORDERING CLAUSES

   10. 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(f)(4) of the Commission's rules, Entertainment
       Media Trust, Dennis J. Watkins, Trustee  IS LIABLE FOR A MONETARY
       FORFEITURE in the amount of eight thousand five hundred dollars
       ($8,500) for violations of Sections 73.1350, 73.1590, and 73.3526 of
       the Commission's rules.^

   11. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  Entertainment Media Trust, Dennis J.
       Watkins, Trustee shall send electronic notification of payment to
       [1]SCR-Response@fcc.gov  on the date said payment is made.

   12. The payment must be made by check or similar instrument, wire
       transfer, or credit card, and must include the NAL/Account number and
       FRN referenced above. Regardless of the form of payment, a completed
       FCC Form 159 (Remittance Advice) must be submitted.^ When completing
       the FCC Form 159, enter the Account Number in block number 23A (call
       sign/other ID) and enter the letters "FORF" in block number 24A
       (payment type code).   Below are additional instructions you should
       follow based on the form of payment you select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated.

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101.

   13. Any request for full payment under an installment plan should be sent
       to:  Chief Financial Officer--Financial Operations, Federal
       Communications Commission, 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 by
       phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.

   14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
       First Class and Certified Mail, Return Receipt Requested, to
       Entertainment Media Trust, Dennis J. Watkins, Trustee at 6500 West
       Main Street, Suite 315, Belleville, IL 62223 and to its counsel,
       Anthony T. Lepore, Esq., PO Box 823662, South Florida, FL 33082-3662.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   ^ 47 C.F.R. SS 73.1350, 73.1590, 73.3526.

   ^ Entertainment Media Trust, Dennis J. Watkins, Trustee, Notice of
   Apparent Liability for Forfeiture, 26 FCC Rcd 6877 (Enf. Bur. 2011).

   ^ A comprehensive recitation of the facts and history of this case can be
   found in the NAL and is incorporated herein by reference.

   ^ Letter from Anthony T. Lepore, Esq., Counsel for Entertainment Media
   Trust, to the Kansas City Office (June 13, 2011) (NAL Response) (on file
   in EB-10-KC-0020).

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

   ^ 47 C.F.R. S 1.80.

   ^ 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), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

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

   ^ 47 C.F.R. S 73.1350.

   ^ NAL Response at 2.

   ^ Id.

   ^ See Declaration of Michael Petz, Station Engineer for Station KZQZ,
   attached to NAL Response.

   ^ Id.

   ^ We note that the complaint that triggered this investigation alleged
   that Station KQQZ had been operating 24 hours a day with full daytime
   power for weeks, so there is some evidence that the violation was more
   than an isolated occurrence.

   ^ 47 C.F.R. S 73.1590(a)(6).

   ^ 47 C.F.R. S 73.1590(d).

   ^ See Declaration of Michael Petz, Station Engineer for Station KZQZ,
   attached to NAL Response.

   ^ See International Broadcasting Corporation, Order on Review, 25 FCC Rcd
   1538 (2010); Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099
   (1994).

   ^ 47 C.F.R. S 73.3526(a)(2).

   ^ NAL Response at 1.

   ^ See Spirit Broadcasting, Inc., Forfeiture Order, 26 FCC Rcd 15276 (Enf.
   Bur. 2011) aff'g Notice of Apparent Liability for Forfeiture and Order, 26
   FCC Rcd 10212 (Enf. Bur. 2011).

   ^ NAL Response at 2. Entertainment Media Trust also argues for a reduced
   forfeiture because of its history of compliance and good-faith efforts to
   comply with the Commission's public inspection file rules. Because we are
   already reducing the forfeiture based on the Licensee's inability to pay
   well beyond any reduction Entertainment Media Trust would receive for the
   other arguments, we need not address these other claims.

   ^ 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 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
   73.1350, 73.1590, 73.3526.

   ^ 47 C.F.R. S 1.80.

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

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

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

   Federal Communications Commission DA 13-355

   6

   Federal Communications Commission DA 13-355

References

   Visible links
   1. mailto:SCR-Response@fcc.gov