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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Cochise Broadcasting LLC Licensee of AM Station KOMJ
   Omaha, NE ) ) ) ) ) ) ) File No.: EB-FIELDSCR-13-00010408 NAL/Acct. No.:
   201432560004 FRN: 0005641998 Facility ID No.: 74104




             NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

   Adopted: February 20, 2014 Released: February 20, 2014

   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 Cochise Broadcasting LLC (Cochise), licensee of AM
       Station KOMJ, in Omaha, Nebraska (the Station), apparently willfully
       and repeatedly violated Sections 73.1125(a) and 73.3526(c) of the
       Commission's rules (Rules),^ by failing to maintain and staff a main
       studio, and make available the Station's public inspection file. We
       conclude that Cochise is apparently liable for a forfeiture in the
       amount of seventeen  thousand dollars ($17,000). In addition, we
       direct Cochise to submit, no later than thirty (30) calendar days from
       the date of this NAL, a statement, signed under penalty of perjury,
       that it has established a fully-staffed main studio for the Station
       and that its public inspection file is available at that location.

   II. BACKGROUND

    2. On August 1, 2013, an agent with the Enforcement Bureau's Kansas City
       Office (Kansas City Office) attempted to inspect the Station, but was
       unable to locate the address of the main studio. The agent was also
       unable to contact anyone responsible for the Station. The agent called
       the local telephone number, 402-553-1490, listed on the Station's
       website, however, calls to that number were transferred to Arizona and
       were answered by voice mail. The agent left a message, but did not
       receive a return call. The agent was unable to find any other local
       telephone number for the Station. The agent also left a message on the
       voicemail for one of Cochise's owners, who is located in Wyoming, but
       did not receive a return call.

    3. On August 5, 2013, an agent with the Kansas City Office telephoned
       Cochise's attorney, who stated the Station's main studio was located
       at the Journal Broadcast Group's (Journal) main studio for Station
       KMTV-TV at 10714 Mockingbird Drive, Omaha, Nebraska (Mockingbird
       Drive).^ That same day, the agent called the Journal's main studio at
       Mockingbird Drive, but was told by a receptionist that Station KOMJ
       was not located at Mockingbird Drive and did not have a public
       inspection file on the premises. On August 6, 2013, the station
       manager for Station KMTV-TV stated that the Station might have some
       files at its main studio, but that he would have to research the
       matter.

    4. On August 14, 2013, the Kansas City Office issued a Notice of
       Violation to Cochise for failing to maintain a main studio and public
       inspection file.^ On September 13, 2013, Cochise responded that the
       Station's telephone is answered in Arizona, where the Station's
       programming is produced.^ Cochise stated that because the agent did
       not identify himself as a Commission representative, the staff treated
       his call as a "listener call without any special urgency."^ Cochise
       reiterated that its main studio and public inspection file are located
       at Mockingbird Drive.^

    5. On September 17, 2013, the Kansas City Office issued Letters of
       Inquiry (LOI) to Cochise and Journal regarding the Station's main
       studio and public inspection file.^ On October 21, 2013, Cochise
       affirmed that the Station's main studio was located at Mockingbird
       Drive.^ Cochise stated that per an agreement effective March 27, 2007,
       between Omaha Dirt & Wire LLC, a company co-owned with Cochise, and
       Journal (March 27, 2007 Agreement), it rented "studio space, office
       space and reception service for KOMJ."^ Cochise claimed the rental
       agreement was in place on August 1, 2013 and provided a check recently
       cashed by Journal, but stated it may look for a new main studio
       location.^ Cochise stated that through the agreement it had "available
       to it any studio space necessary or desirable for the necessary
       functions of a main studio, including the use of any of Journal's
       production equipment."^ Cochise, however, did not identify any Cochise
       equipment located at Mockingbird Drive or any Cochise employees or
       managers working at Mockingbird Drive. Finally, Cochise stated its
       public inspection file is located at Mockingbird Drive and that it has
       so instructed Journal's receptionist.^

    6. On November 5, 2013, Journal submitted its response to the LOI.^
       Journal stated that the March 27, 2007 Agreement related to facilities
       located at 5030 North 72^nd Street, Omaha, Nebraska and expired no
       later than March 26, 2008,^ and that the parties did not enter into
       any written extension or modification of the agreement.^ Journal
       stated, however, that Cochise has continued to pay Journal a monthly
       fee to locate files at Mockingbird Drive.^ "Other than the certain
       files referenced above, Cochise did not have any equipment or
       specifically designated space at the Mockingbird Drive Location."^
       Moreover, Journal "neither provides nor shares any EAS or other
       technical equipment with Cochise."^ "Journal agreed to provide
       reception service at the front desk of Journal's [Mockingbird Drive]
       facilities in this Agreement. However, Journal does not provide and
       has never provided any staff or manager to Cochise and no Journal
       staff or managers are subject to any direction or control by
       Cochise."^ Finally, Journal stated that its receptionist does not
       recall speaking to anyone about the Station on August 5, 2013, but
       that any number of other Journal employees and interns may have
       relieved her during a break.^

   III. DISCUSSION

    7. 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.^ 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 and/or Staff a Main Studio

    8. Section 73.1125(a) of the Rules requires broadcast stations to
       maintain a main studio.^ The Commission has interpreted Section
       73.1125 (also known as the Main Studio Rule) to require the station to
       "equip the main studio with production and transmission facilities
       that meet applicable standards, maintain continuous program
       transmission capability, and maintain a meaningful management and
       staff presence."^ Specifically, the Commission has found that a main
       studio "must, at a minimum, maintain full-time managerial and
       full-time staff personnel."^

    9. The evidence in this case is sufficient to establish that Cochise
       apparently violated Section 73.1125(a) of the Rules.^ Cochise asserts
       that, pursuant to an agreement with Journal, the Station's main studio
       is located at Mockingbird Drive. Journal, however, states that it only
       has an agreement with Cochise to provide receptionist services and
       house certain Station files at Mockingbird Drive. Journal states that
       no Cochise equipment or employees are located at Mockingbird Drive and
       that Journal does not share any equipment or employees with Cochise.
       Ignoring the discrepancy over whether a main studio rental agreement
       is in place, on August 5, 2013, no one at Mockingbird Drive was aware
       of any Station presence at Mockingbird Drive. Moreover, Cochise has
       been unable to identify any Station equipment or staff located at
       Mockingbird Drive, other than the purported public inspection file. In
       addition, Cochise's local telephone number is forwarded to Arizona, so
       its only local presence in Omaha, Nebraska is the Journal receptionist
       at Mockingbird Drive. Cochise has not asserted that it maintains any
       full-time staff or managerial presence at Mockingbird Drive or any
       other location in Omaha. Accordingly, based on the evidence before us,
       we find that Cochise apparently willfully and repeatedly violated
       Section 73.1125(a) of the Rules by failing to maintain and/or fully
       staff a main studio for Station KOMJ.

     A. Failure to Make Available a Public Inspection File

   10. Section 73.3526(a)(2) 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.^   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.^ On August 1, 2013, an agent from the Kansas City Office
       attempted to inspect the Station's public inspection file but was
       unable to contact anyone from the Station to determine the location of
       the public inspection file. The agent called the local telephone
       number, which is answered by voicemail, but the call was not returned,
       because the agent was misidentified as a regular "listener."^ Even if
       the call had been returned, public inspection files must be available
       at any time during regular business hours, and stations may not
       require that a member of the public make an appointment in advance or
       return at another time to inspect the public inspection file.^
       Requiring members of the public to call a telephone number and wait
       several hours or days for a return call with instructions on where to
       request the public inspection file does not constitute making the file
       available during regular business hours. Moreover, on August 5, 2013,
       when the agent from the Kansas City Office contacted the appropriate
       receptionist during regular business hours to inspect the Station's
       public inspection file, the receptionist was unaware of the file's
       location. Based on the evidence before us, we find that Cochise
       apparently willfully and repeatedly violated Section 73.3526(c) of the
       Rules by failing to make available the Station's public inspection
       file.

     A. 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 violation of the
       main studio rule is $7,000 and for 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.^
       Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
       and the statutory factors to the instant case, we conclude that
       Cochise is apparently liable for a total forfeiture in the amount of
       $17,000.

   12. We further order Cochise to submit a written statement, pursuant to
       Section 1.16 of the Rules,^ signed under penalty of perjury by an
       officer or director of Cochise, stating that it has established a
       fully staffed main studio for the Station. Cochise must provide the
       address and phone number for the main studio, and a description of the
       staffing and equipment installed at the main studio. Cochise must also
       certify that its public inspection file is located at the main studio
       and that it is available to the public during regular business hours.
       This statement must be provided to the Kansas City Office at the
       address listed in paragraph 15 within thirty (30) calendar days of the
       release date of this NAL.

   IV. ORDERING CLAUSES

   13. 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, Cochise Broadcasting
       LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
       the amount of seventeen thousand dollars ($17,000) for violations of
       Sections 73.1125(a) and 73.3526(c) of the Rules.^

   14. 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,
       Cochise Broadcasting LLC SHALL PAY the full amount of the proposed
       forfeiture or SHALL FILE a written statement seeking reduction or
       cancellation of the proposed forfeiture.

   15. IT IS FURTHER ORDERED that Cochise Broadcasting LLC SHALL SUBMIT a
       written statement, as described in paragraph 12, within thirty (30)
       calendar days of the release date of this Notice of Apparent Liability
       for Forfeiture and Order. The statement must be mailed to Federal
       Communications Commission, Enforcement Bureau, South Central Region,
       Kansas City Office, 520 NE Colbern Rd., 2nd Floor, Lees Summit, MO
       64086. Cochise shall also e-mail the written statement to
       SCR-Response@fcc.gov.

   16. Payment of the forfeiture must be made by check or similar instrument,
       wire transfer, or credit card, and must include the NAL/Account Number
       and FRN referenced above. Cochise shall also send electronic
       notification on the date said payment is made to SCR-Response@fcc.gov.
       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.

   17. 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.

   18.  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 1.16 and 1.80(f)(3) 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,
       Lees Summit, MO 64086, and include the NAL/Acct. No. referenced in the
       caption. Cochise Broadcasting LLC also shall e-mail the written
       response to  SCR-Response@fcc.gov.

   19. 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 principles (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.

   20. 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 first class mail to Cochise Broadcasting LLC at
       their address of record and to their counsel, Susan A. Marshall,
       Fletcher, Heald and Hildreth, at 1300 North 17^th Street, 11^th Floor,
       Arlington, VA 22209.

   FEDERAL COMMUNICATIONS COMMISSION

   Ronald D. Ramage

   District Director

   Kansas City Office

   South Central Region

   Enforcement Bureau

   ^ 47 C.F.R. SS 73.1125(a), 73.3526(c).

   ^ On August 6, 2013, Cochise's attorney confirmed that 402-553-1490 was
   Station KOMJ's telephone number and also confirmed Cochise's owner's
   telephone number.

   ^ Cochise Broadcasting LLC, Notice of Violation, NOV No. V201332560032
   (Aug. 14, 2013) (on file in EB-FIELDSCR-13-00010408).

   ^ Letter from Susan A. Marshall, Counsel for Cochise Media Licenses LLC,
   to Ronald D. Ramage, District Director, Kansas City Office, South Central
   Region, Enforcement Bureau at 2 (Sept. 13, 2013) (NOV Response) (on file
   in EB-FIELDSCR-13-00010408).

   ^ Id.

   ^ Id.

   ^ Letter from Ronald D. Ramage, District Director, Kansas City Office,
   South Central Region, Enforcement Bureau, to Susan A. Marshall, Counsel
   for Cochise Media Licenses, LLC (Sept. 17, 2013) (on file in
   EB-FIELDSCR-13-00010408); Letter from Ronald D. Ramage, District Director,
   Kansas City Office, South Central Region, Enforcement Bureau, to Journal
   Communications Inc. (Sept. 17, 2013) (on file in EB-FIELDSCR-13-00010408).

   ^ Letter from Susan A. Marshall, Counsel for Cochise Media Licenses LLC,
   to Ronald D. Ramage, District Director, Kansas City Office, South Central
   Region, Enforcement Bureau at 4 (Oct. 21, 2013) (LOI Response) (on file in
   EB-FIELDSCR-13-00010408).

   ^ Id.

   ^ Id.

   ^ Id.

   ^ Id. at 5.

   ^ Journal did not submit a timely response to the LOI issued September 17,
   2013. The Kansas City Office again requested a response to the LOI on
   October 23, 2013. Letter from Ronald D. Ramage, District Director, Kansas
   City Office, South Central Region, Enforcement Bureau, to Journal
   Communications, Inc. (Oct. 23, 2013). Letter from John W. Bagwell, Counsel
   for Journal Communications Inc., to Ronald D. Ramage, District Director,
   Kansas City Office, South Central Region, Enforcement Bureau (Nov. 5,
   2013) (Journal LOI Response).

   ^ The copies of the March 27, 2007 agreement provided by Cochise and
   Journal stated that the initial term expired September 26, 2007 and only
   explicitly referenced 5030 North 72^nd Street, Omaha, Nebraska.

   ^ Journal LOI Response at 2.

   ^ Id.

   ^ Id.

   ^ Id. at 3.

   ^ Id. at 2-3.

   ^ Id. at 3.

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

   ^ 47 U.S.C. S 312(f)(1).

   ^ H.R. Rep. No. 97-765, 97^th 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., Southern California Broadcasting Co., Memorandum Opinion and
   Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).

   ^ 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 Callais Cablevision, Inc., 16 FCC Rcd  at
   1362.

   ^ 47 C.F.R. S 73.1125.

   ^ Amendment of Sections 73.1125 and 73.1130 of the Commission's Rules, the
   Main Studio and Program Origination Rules for Radio and Television
   Broadcast Stations, Memorandum Opinion and Order, 3 FCC Rcd 5024, 5026
   (1988) (Main Studio and Program Origination Rules), erratum issued, 3 FCC
   Rcd 5717 (1988) (correcting language in n.29).

   ^ See  Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and
   Order, 6 FCC Rcd 3615, 3616 & n.2 (1991)  (noting that, "This is not to
   say that the same staff person and manager must be assigned full-time to
   the main studio. Rather, there must be management and staff presence on a
   full-time basis during normal business hours to be considered
   `meaningful.'"), clarified, 7 FCC Rcd 6800 (1992)  (Jones Eastern II). See
   also [1]Birach Broadcasting Corporation, Notice of Apparent Liability for
   Forfeiture, 25 FCC Rcd 2635 (Enf. Bur. 2010).

   ^ 47 C.F.R. S 73.1125(a).

   ^ 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).

   ^ See supra para. 4.

   ^ See CSSI Non-Profit Educational Broadcasting Corporation, Notice of
   Apparent Liability for Forfeiture, 28 FCC Rcd 3087 (Enf. Bur. 2013)
   (licensee apparently violated Section 73.3527 by not providing immediate
   access to a public inspection file upon initial request). See
   also Availability of Locally Maintained Records for Inspection by Members
   of the Public, Public Notice, 13 FCC Rcd 17959 (1998).

   ^ 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).

   ^ 47 C.F.R. S 1.16.

   ^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
   73.1125(a), 73.3526(c).

   ^ 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.

   ^ 47 C.F.R. SS 1.16, 1.80(f)(3).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 14-207

                                       2

   Federal Communications Commission DA 14-207

References

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