**Before the**

#  Federal Communications Commission

**Washington, D.C. 20554**

+--------------------------------+-------------------------------------+
| In the Matter of               | )                                   |
|                                |                                     |
| Woodland Communications        | )                                   |
| Corporation                    |                                     |
|                                | ) File Number EB-02-DV-313          |
| Licensee of Station WMF732     |                                     |
|                                | )                                   |
| Montrose, Colorado             |                                     |
|                                | ) NAL/Acct. No. 200332800012        |
| Facility ID \# 73626           |                                     |
|                                | ) FRN 0002-3220-89                  |
|                                |                                     |
|                                | )                                   |
|                                |                                     |
|                                | )                                   |
|                                |                                     |
|                                | )                                   |
+--------------------------------+-------------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

> Released: April 30, 2003

By the Acting District Director, Denver Office, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Woodland Communications Corporation (\"Woodland\"),
    licensee of studio-transmitter-link (STL), call sign WMF732, in
    Montrose, Colorado, apparently willfully and repeatedly violated
    Sections 74.551(a)(2), 74.551(a)(3) and 74.561 of the Commission\'s
    Rules (\"Rules\"),[^1] by failing to operate the STL transmitter on
    the authorized frequency and failing to operate from the authorized
    location. We conclude, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended,[^2] that Woodland is
    apparently liable for a forfeiture in the amount of eight thousand
    dollars (\$8,000).

**II.** **BACKGROUND**

2.  On August 1, 2002, a Denver Office agent inspected broadcast
    stations KUBC(AM) and KKXK(FM), licensed to Montrose, Colorado.
    During the inspection, the agent found and advised station personnel
    that the STL transmitter utilized by KUBC-AM, call sign WMF732, was
    operating on an unauthorized frequency and from an unauthorized
    location. Using a spectrum analyzer, the agent verified that the STL
    transmitter was operating on the frequency of 948.873 MHz.
    Woodland's license for WMF732 specified the authorized frequency for
    the STL transmitter as 951.000 MHz with the authorized location for
    the transmitter at 2018 South Townsend, in Montrose, Colorado. At
    the time of the inspection, the studio and the STL transmitter were
    located at 106 Rose Lane in Montrose, Colorado.

3.  A follow-up record search in September 2002, of the FCC database
    revealed that Woodland had failed to modify either the frequency or
    the transmitter location for WMF732, as the licensed frequency was
    shown as 951.000 MHz with a transmitter address of 2018 South
    Townsend, Montrose, Colorado.

4.  A Notice of Violation (\"NOV\") was issued to Woodland on November
    21, 2002, for violations of, among others, Sections 74.551(a)(2) and
    74.551(a)(3) of the Rules, for failing to modify the authorization
    to indicate the change in operating frequency and transmitter
    location for WMF732. On December 10, 2002, Woodland requested an
    extension of time to respond to the NOV. On December 13, 2002, the
    Denver Office granted Woodland until December 20, 2002, to respond.

5.  In Woodland's December 20, 2002, response to the NOV, Woodland
    stated with regard to the violation of 74.551(a)(2), that \"...for
    as long as we have owned the radio stations -- since 1988 -- we have
    never modified the equipment for WMF732. This is to say we have
    operated the unit as it was sold to us some 14 years ago, with the
    license that the prior owner obtained for it. Indeed, it was not
    until we asked the FCC inspector, who had a spectrum analyzer with
    him during the inspection, to check the assigned frequency of the
    unit, did it become apparent to any of us that there was a variance
    between the frequency used and the frequency authorized.\" With
    regard to the violation of 74.551(a)(3), Woodland responded that
    when the application for change in the main studio location was
    filed, they \"overlooked, however, the resulting application that
    would be required to change transmitter location for WMF732.\"

**III.** **DISCUSSION**

6.  Section 503(b) of the Act provides that any person who willfully
    fails to comply substantially with the terms and conditions of any
    license, or willfully 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.[^3] The term
    \"willful\" as used in Section 503(b) has been interpreted to mean
    simply that the acts or omissions are committed knowingly and the
    term \"repeated\" means the commission or omission of the act more
    than once or for more than one day.[^4]

7.  Section 74.551(a)(2) of the Rules states that, \"\[p\]rior
    Commission approval ... is required for ... \[a\] change in the
    operating frequency or channel bandwidth.\" Woodland's license for
    station WMF732 specified operation on 951.000 MHz. At the time of
    the inspection, Woodland was operating STL WMF732 on 948.873 MHz.
    Section 74.561 of the Rules requires that the licensee shall
    maintain the operating frequency of the transmitter within 0.005% of
    the assigned frequency. At the time of the inspection, WMF732 was
    transmitting on 948.873 MHz which is more than 0.22% from the
    assigned frequency. Woodland asserts that it was not aware that the
    STL was not operating on its authorized and assigned frequency until
    the time of the inspection. Woodland admitted in the response to the
    NOV that it had not monitored the STL frequency to determine if the
    STL was operating on a frequency other than that for which it was
    licensed. Woodland stated that the equipment for WMF732 had never
    been modified, as Woodland did not doubt the \"match of the
    equipment to the license.\" The lack of routine maintenance and
    performance measurements indicates that during Woodland\'s fourteen
    years of ownership, no effort had been made so as to ascertain
    compliance with these particular Rule sections.

8.  During the August 1, 2002, inspection, Woodland was advised that the
    STL was operating on an unauthorized frequency. Woodland did not
    promptly change the operating frequency of WMF732 to that
    authorized, nor did Woodland promptly file an application to change
    the operating frequency pursuant to section 74.551(a)(2) of the
    Rules. Commission records indicate that Woodland submitted an
    application to change the STL frequency on Form 601 on December 19,
    2002, over 4 months after the inspection and nearly one month after
    the NOV was issued.

9.  Section 74.551(a)(3) of the Rules states that, \"\[p\]rior
    Commission approval ... is required for ... \[a\] change in the
    location of the transmitter or transmitting antenna except when
    relocation of the transmitter is within the same building.\" At the
    time of the inspection, the STL was not authorized to operate from
    the location at which it was installed. Woodland acknowledged in
    response to the NOV that it failed to modify the authorization to
    indicate the new location for the STL transmitter when the studio
    and associated STL were moved in January 1998. Moreover, even though
    Woodland was advised during the August 1, 2002, inspection that the
    STL was operating at an unauthorized location, Woodland did not
    promptly file an application to change the transmitter location
    pursuant to section 74.551(a)(3) of the Rules. Rather, Woodland
    waited 4 months after the inspection and nearly one month after the
    NOV before submitting an application on Form 601 to the Commission
    on December 19, 2002, to change the station's location of operation.

10. Operation on the frequency and at the location licensed is a
    fundamental requirement of the FCC's licensing policy and is
    critical to spectrum coordination and non-interference. As a
    licensee, Woodland is aware of its obligations to operate in
    accordance with the terms and conditions of its authorizations. We
    do not find Woodland's suggestion that, at the time of the
    inspection, they requested verification of the STL's frequency
    mitigating. Verification of operation by licensees on their
    authorized frequencies is a normal component of a station
    inspection. And, licensees are expected to comply with the Rules .

11. Based on the evidence before us, we find that Woodland willfully and
    repeatedly violated Sections 74.551(a)(2), 74.551(a)(3) and 74.561
    of the Commission's Rules by failing to operate the STL transmitter
    on the authorized frequency and failing to operate the STL at the
    authorized location.[^5]

12. The base forfeiture amount set by *The Commission\'s Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Rules to
    Incorporate the Forfeiture Guidelines*, (\"*Forfeiture Policy
    Statement*\"),[^6] and Section 1.80 of the Commission\'s Rules,[^7]
    for operating on an unauthorized frequency is \$4,000 and for
    operating at an unauthorized location is \$4,000. In assessing the
    monetary forfeiture amount, we must also take into account the
    statutory factors set forth in Section 503(b)(2)(D) of the Act,[^8]
    which include the nature, circumstances, extent, and gravity of the
    violation(s), and with respect to the violator, the degree of
    culpability, and history of prior offenses, ability to pay, and
    other such matters as justice may require. Applying the *Forfeiture
    Policy Statement* and the statutory factors to the instant case, an
    \$8,000 forfeiture is warranted.

## 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, 0.311
    and 1.80 of the Commission\'s Rules, Woodland Communications
    Corporation is hereby NOTIFIED of an APPARENT LIABILITY FOR A
    FORFEITURE in the amount of eight thousand dollars (\$8,000) for
    violations of Sections 74.551(a)(2), 74.551(a)(3) and 74.561 of the
    Rules.[^9]

14. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
    Commission\'s Rules[^10] within thirty days of the release date of
    this NOTICE OF APPARENT LIABILITY, Woodland Communications
    Corporation SHALL PAY the full amount of the proposed forfeiture or
    SHALL FILE a written statement seeking reduction or cancellation of
    the proposed forfeiture.

## 

## Payment of the forfeiture may be made by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Forfeiture Collection Section, Finance Branch, Federal Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment MUST INCLUDE the FCC Registration Number (FRN) and the NAL/Acct. No. referenced in the caption.

## 

## The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Technical and Public Safety Division, 445 12^th^ Street, S.W., Washington, D.C. 20554, and must include the NAL/Acct. No. referenced in the caption.

15. 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 practices (\"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.

16. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief,
    Revenue and Receivables Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^11]

17. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Technical and
    Public Safety Division, Enforcement Bureau, Federal Communications
    Commission, 445 12th Street S.W., Washington, D.C. 20554. Your
    certification should indicate whether you, including your parent
    entity and its subsidiaries, meet one of the definitions set forth
    in the list provided by the FCC's Office of Communications Business
    Opportunities (OCBO) set forth in Attachment A of this Notice of
    Apparent Liability. This information will be used for tracking
    purposes only. Your response or failure to respond to this question
    will have no effect on your rights and responsibilities pursuant to
    Section 503(b) of the Communications Act. If you have any questions
    regarding any of the information contained in Attachment A, please
    contact OCBO at (202) 418-0990.

18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail \# 7001 0320 0002 9702
    3682, Return Receipt Requested and First Class Mail, to Woodland
    Communications Corporation, P.O. Box 970, Montrose, CO 81401.

FEDERAL COMMUNICATIONS COMMISSION

Nikki P. Shears

####  Acting District Director, Denver Office

Encl.: Attachment A

[^1]: 47 C.F.R §§ 74.551(a)(2), 74.551(a)(3) and 74.561.

[^2]: 47 U.S.C. § 503(b).

[^3]: 47 U.S.C. § 503(b).

[^4]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that \"\[t\]he term \'willful\', when
    used with reference to the commission or omission of any act, means
    the conscious and deliberate commission or omission of such act,
    irrespective of any intent to violate any provision of this
    Act....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991). Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
    also applies to Section 503(b), provides: \"\[t\]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.\"

[^5]: 47 C.F.R. §§ 74.551(a)(2), 74.551(a)(3) and 74.561.

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^7]: 47 C.F.R. § 1.80.

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80, 74.551(a)(2),
    74.551(a)(3) and 74.561.

[^10]: 47 C.F.R. § 1.80.

[^11]: *See* 47 C.F.R. § 1.1914.