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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Four Corners Broadcasting, LLC
Station KIQX(FM) and Station WHB352,
Station KRSJ(FM) and Station WLD73,
Station KIUP(AM) and Station WPNG746 Durango, Colorado
File No.: EB-FIELDWR-12-00004043
Facility ID No.: 22174
File No.: EB-FIELDWR-12-00004038
Facility ID No.: 22036
File No.: EB-FIELDWR-12-00004044
Facility ID No.: 22039
NAL/Acct. No.: 201432800001
Adopted: December 16, 2014 Released: December 17, 2014
By the Regional Director, Western Region, Enforcement Bureau:
* In this order, we impose a penalty of $25,000 against Four Corners Broadcasting, LLC (Four Corners) for operating three studio-transmitter link (STL) stations at an unauthorized location. Four Corners does not deny the operations but asks that the forfeiture be reduced due to inadvertent errors made by its staff along with staff issues that were beyond its control. Given the extended nature of the violation and the lack of mitigating circumstances under our precedent, we see no reason to reduce the forfeiture.
* In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of twenty-five thousand dollars ($25,000) to Four Corners, licensee of Station KIQX(FM) and its associated studio-transmitter link (STL) Station WHB352 operating on frequency 948.5 MHz, Station KRSJ(FM) and its associated STL Station WLD73 operating on frequency 947.0 MHz, and Station KIUP(AM) and its associated STL Station WPNG746 operating on frequency 951.875 MHz, in Durango, Colorado, for willfully and repeatedly violating Section 301 of the Communications Act of 1934, as amended (Act), and Section 1.903(a) of the Commission's rules (Rules). The noted violations involve operation of the three STL Stations (STL Stations) from a location not authorized by their respective FCC licenses.
* II. BACKGROUND
* On October 25, 2013, the Enforcement Bureau's Denver Office (Denver Office) issued a Notice of Apparent Liability for Forfeiture and Order (NAL) for twenty-five thousand dollars ($25,000) to Four Corners for failing to operate the STL Stations from their authorized locations. In response to the NAL, Four Corners does not deny the violations, but requests cancellation or reduction because it took action after receiving notices from the Denver Office concerning the violations, and because it was unable to correct the violations because of staffing issues beyond its control. It also questions the upward adjustment added to the proposed forfeiture.
* 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 Four Corners' 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.
* We affirm the NAL's finding that Four Corners violated Section 301 of the Act and Section 1.903(a) of the Rules. Section 301 of the Act prohibits the use or operation of any apparatus for the transmission of energy or communications or signals by radio, except under and in accordance with the Act and with a license. Section 1.903(a) of the Rules requires that stations in the Wireless Radio Services must be used and operated only in accordance with the rules applicable to their particular service, and with a valid authorization granted by the Commission.
* As reflected in the NAL, during an inspection conducted on August 24, 2012, an agent from the Denver Office determined that the STL Stations were operating from a location approximately 0.6 miles from their authorized location. Further, the agent determined that the STL Stations had been operating at the unauthorized location since August 2007. In addition, while Four Corners filed applications to remedy the violations after receiving Notices of Violation, in September 2012, all three applications were "returned" to Four Corners by the Commission on February 20, 2013, and subsequently, on May 14, 2013, letters dismissing the applications were also sent to Four Corners.
* On July 23, 2013, a Denver Office agent conducted a follow-up inspection of the STL Stations and found that the STL Stations continued to be in operation at the unauthorized location. Thus, on October 25, 2013, the Denver Office issued the NAL, finding that Four Corners willfully and repeatedly violated Section 301 of the Act and Section 1.903(a) of the Rules by operating the STL Stations from a location not authorized by their respective FCC licenses. Thereafter, on October 30, 2013, Four Corners submitted applications with the FCC to modify the transmitter site of the STA Stations, which were ultimately granted in January, 2014.
* In response to the NAL, Four Corners requests cancellation or reduction of the $25,000 forfeiture, first arguing that it took immediate steps to remedy the violation after being notified by the Denver Office in the Notices and that any subsequent failure was due to inadvertent staff error, including an unanticipated illness and unavailability of one of its key employees. We find that neither of these arguments justify a reduction of the proposed forfeiture. It is well established that corrective action taken to come into compliance with the Rules is expected after notice from the Commission, and does not nullify or mitigate any prior forfeitures or violations. We also note that neither the negligent acts nor omissions of station employees excuse a licensee's rule violation."
* Four Corners also argues that the proposed upward adjustment of the base forfeiture amount "is outrageous and cannot be sustained" because the precedent cited for the upward adjust is two Notices of Apparent Liability, asserting that because they were neither final determinations of liability, nor paid, relying on them violates Section 504(c) of the Act. We disagree. Section 504(c) states that "[i]n any case where the Commission issues a notice of apparent liability looking toward the imposition of a forfeiture under this chapter, that fact shall not be used, in any other proceeding before the Commission, to the prejudice of the person to whom such notice was issued, unless (i) the forfeiture has been paid, or (ii) a court of competent jurisdiction has ordered payment of such forfeiture, and such order has become final." We see no error in the Denver Office relying on prior Commission and staff precedent to determine what level of forfeiture to propose, as the forfeiture in the NAL is a proposal and Four Corners was afforded an opportunity to respond. In any event, the Section 504(c) argument is moot, as both the Remel NAL and Union Broadcasting NAL were paid after each of the notices were issued. We find that the precedent continues to support the upward adjustment of the proposed forfeiture, given the long duration of Four Corners' violation of Section 301 of the Act and Section 1.903(a) of the Rules. Therefore, after consideration of the entire record and the factors listed above, we find that a forfeiture in the amount of $25,000 is warranted.
* ORDERING CLAUSES
* 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, Four Corners Broadcasting, LLC, IS LIABLE FOR A MONETARY FORFEITURE in the amount of twenty-five thousand dollars ($25,000) for violations of Section 301 of the Act and Section 1.903(a) of the Rules.
* 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. Four Corners Broadcasting, LLC, shall send electronic notification of payment to WR-Response@fcc.gov on the date said payment is made. 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.
* Any request for making full payment over time 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 [HYPERLINK: mailto:ARINQUIRIES@fcc.gov].
* IT IS FURTHER ORDERED that a copy of this Order shall be sent by both First Class and Certified Mail, Return Receipt Requested, to Four Corners Broadcasting, LLC, at 190 Turner Drive, Suite G, Durango, Colorado 81303, and to its counsel, Frank R. Jazzo, Esquire, at Fletcher, Heald & Hildreth, PLC, 1300 North 17[th] Street, 11[th] Floor, Arlington, Virginia 22209.
* FEDERAL COMMUNICATIONS COMMISSION
* Rebecca L. Dorch
* Regional Director, Western Region
* Enforcement Bureau