**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-03-KC-001        |
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| Johnson Enterprises, Inc.        | ) | NAL/Acct. No. 200332560016   |
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| Licensee of KLEY(AM)             | * | FRN 0006-1509-65             |
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| Wellington, Kansas               | * |                              |
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**FORFEITURE ORDER**

**Adopted:** July 28, 2004 **Released:** July 30, 2004

By the Chief, Enforcement Bureau:

# introduction

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of three thousand two hundred dollars
    (\$3,200), to Johnson Enterprises, Inc. ("Johnson"), licensee of
    Station KLEY(AM), Wellington, Kansas, for repeated violation of
    Section 73.1745(a) of the Commission's Rules ("Rules").[^1] The
    noted violation involves Johnson's operation of the station at a
    power of more than 1 watt during nighttime hours from January 10-13,
    2003, in contravention of the terms of its station authorization.

#  background 

2.  On January 6, 2003, the Commission's Enforcement Bureau Kansas City
    Office ("Kansas City Office") received a confidential complaint that
    Station KLEY(AM) had been operating at night with full daytime power
    while carrying Nebraska University football games and other local
    sporting events. The complaint stated the station appeared to be
    attempting to cover Wichita, Kansas with its broadcast signal.
    Station KLEY(AM)'s license authorizes operation with 250 watts of
    power during daytime and 1 watt at night. Wichita is approximately
    30 miles from the KLEY location in Wellington and is outside of the
    station\'s nighttime broadcast coverage area when operating with the
    authorized output power of 1 watt.

3.  In response to this complaint, an agent of the Kansas City Office
    monitored the signal strength level of the station on January
    10-21, 2003. The monitoring showed that Station KLEY(AM) remained at
    daytime power during nighttime hours on January 10-13, 2003.

4.  On January 30, 2003, the agent inspected the station, accompanied by
    the station's owner and general manager, Gordon Johnson, and chief
    operator, Vernon Napier. According to the agent's notes taken during
    the inspection, Mr. Johnson made the following statements: 1) that
    Johnson had entered into a written contract with the Kansas
    Cornhusker Club of Wichita, Kansas to carry Nebraska University
    football games on KLEY "in their entirety" during the 2002 football
    season; 2) that Station KLEY(AM) aired two nighttime Nebraska
    football games, one against Arizona State and the other against Penn
    State, at the full daytime power level of 250 watts; 3) that the
    station utilized an automatic timer to switch the transmitter
    between daytime and nighttime power levels and that on August 24 and
    September 14, 2002 the station operator used the manual override to
    operate the transmitter with daytime power during nighttime hours;
    and 4) that he was unaware of the station's daytime power operation
    during nighttime hours on January 10-13, 2003.

5.  On April 3, 2003, the Kansas City Office issued a *Notice of
    Apparent Liability for Forfeiture* to Johnson in the amount of six
    thousand dollars (\$6,000) for the apparent willful and repeated
    violation of Section 73.1745(a) of the Rules.[^2] On April 30, 2003,
    Johnson filed a response to the *NAL* seeking a cancellation or
    reduction of the proposed forfeiture. Johnson admits that the
    station experienced trouble with its low power transmitter from the
    end of December 2002 to the early part of January 2003. It claims
    that an independent engineer made several trips to the station
    during this time to repair the transmitter. Johnson categorically
    denies that Mr. Johnson stated that KLEY(AM) operated at full power
    to broadcast the Nebraska football games against Arizona State and
    Penn State. Finally, Johnson argues the forfeiture should be reduced
    or canceled because it does not have a prior history of violations
    and is unable to pay the proposed amount.

#  discussion

6.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^3] Section 1.80 of the Rules,[^4] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC
    Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("*Forfeiture
    Policy Statement*"). In examining Johnson's response, Section 503(b)
    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.[^5]

7.  Section 73.1745(a) states that no broadcast station shall operate at
    times, or with modes or power, other than those specified and made
    part of the license.[^6] Station KLEY(AM)'s authorization specifies
    that the station may operate from local sunrise to local sunset with
    a power of 250 watts and from local sunset to local sunrise with a
    power of 1 watt. Johnson acknowledges that the station continued to
    air programming even though its transmitter was not operating
    properly from December 2002 to January 2003. Johnson does not deny
    that the station operated overpower on the evenings of January
    10-13, 2003. We find that Johnson repeatedly[^7] violated Section
    73.1745(a) of the Rules by operating Station KLEY(AM) at daytime
    power levels during nighttime hours on January 10, 11, 12, and
    13, 2003. Because we find that Johnson repeatedly violated Section
    73.1745(a), we need not address whether the violation was willful.

8.  We also conclude that the forfeiture should be reduced to \$4,000,
    the base forfeiture amount for overpower operation. The Kansas City
    Office raised the proposed forfeiture above the base forfeiture
    amount based on Mr. Johnson's contemporaneous admission that an
    employee intentionally bypassed the transmitter's automatic timer on
    at least two occasions to broadcast nighttime Nebraska football
    games. We note that Johnson later recanted these statements. As our
    finding herein that Johnson repeatedly violated Section 73.1745(a)
    on January 10-13, 2003 does not rely upon these statements by Mr.
    Johnson, we find a reduction in the proposed forfeiture amount from
    \$6,000 to \$4,000 is appropriate.

9.  Johnson asserts the forfeiture should be cancelled or reduced
    because it does not have the financial ability to pay the proposed
    forfeiture. The Commission has determined that, in general, a
    licensee\'s gross revenues are the best indicator of its ability to
    pay a forfeiture.[^8] After reviewing the tax returns provided by
    Johnson, we disagree and conclude that Johnson is able financially
    to pay the proposed forfeiture.

10. Finally, Johnson asserts the forfeiture should be cancelled or
    reduced because it has not received a Notice of Forfeiture prior to
    this *NAL*. After considering Johnson's past history of compliance,
    we conclude that a further reduction of the forfeiture amount to
    \$3,200 is appropriate.

11. We have examined Johnson's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that
    Johnson willfully and repeatedly violated Section 73.1745(a) of the
    Rules and reduce the forfeiture amount to \$3,200 based on Johnson's
    past history of overall compliance with the Rules.

#  ordering clauses

12. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^9]
    Johnson Enterprises, Inc. **IS LIABLE FOR A MONETARY FORFEITURE** in
    the amount of ­three thousand two hundred dollars (\$3,200) for
    repeatedly violating Section 73.1745(a) of the Rules.

13. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    *Order*. If the forfeiture is not paid within the period specified,
    the case may be referred to the Department of Justice for collection
    pursuant to Section 504(a) of the Act.[^10] Payment shall be made by
    mailing a check or similar instrument, payable to the order of the
    \"Federal Communications Commission,\" to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should note NAL/Acct. No. 200332560016, and FRN0006-1509-65.
    Requests for full payment under an installment plan should be sent
    to: Chief, Revenue and Receivables Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^11]

14. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to E.
    Gordon Johnson, President of Johnson Enterprises, Inc., P.O. Box
    249, 338 S. KLEY Drive, Wellington, Kansas 67152.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 73.1745(a).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332560016 (Enf. Bur., Kansas City Office, April 3, 2003)
    ("*NAL*").

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 47 C.F.R. § 73.1745(a).

[^7]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The *Conference
    Report* for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^8]: *See PJB Communications of Virginia, Inc.*, 7 FCC Rcd 2088 (1992).

[^9]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^10]: 47 U.S.C. § 504(a).

[^11]: *See* 47 C.F.R. § 1.1914.