**Before the**

#  Federal Communications Commission

**Washington, D.C. 20554**

+-----------------------------------+-----------------------------------+
| In the Matter of                  | )                                 |
|                                   |                                   |
| Millcreek Broadcasting, L.L.C.    | )                                 |
|                                   |                                   |
| Licensee of Station KUUU-FM1      | )                                 |
|                                   |                                   |
| Salt Lake City, Utah              | )                                 |
|                                   |                                   |
| Facility ID \# 86882              | ) File No. 99-DV-522              |
|                                   |                                   |
| Licensee of Station KUDD(FM)      | )                                 |
|                                   |                                   |
| Roy, Utah                         | )                                 |
|                                   |                                   |
| Facility ID \# 33438              | )                                 |
|                                   |                                   |
| Licensee of Station KUUU(FM)      | ) File No. EB-00-DV-302           |
|                                   |                                   |
| Tooele, Utah                      | )                                 |
|                                   |                                   |
| Facility ID \# 37876              | )                                 |
|                                   |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | ) File No. EB-01-DV-062           |
|                                   |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | ) NAL/Acct. No. 200232800008      |
|                                   |                                   |
|                                   | ) FRN 0004-8307-33                |
+-----------------------------------+-----------------------------------+

## 

## 

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

> Released: June 19, 2002

By the District Director, Denver Office, Enforcement Bureau:

#  I. INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Millcreek Broadcasting, L.L.C., (\"Millcreek\") licensee
    of Utah stations KUUU-FM1 in Salt Lake City, KUDD[^1] in Roy, KUUU
    in Tooele, and KUDD-FM1 in Salt Lake City, apparently willfully
    violated Sections 11.35(a) and 74.1251 of the Commission\'s Rules
    (\"Rules\")[^2] by failing to have operational Emergency Alert
    System (\"EAS\") equipment at the main FM stations KUUU and KUDD and
    by operating translator station KUUU-FM1 with an unauthorized
    transmission system at an unauthorized location and with excessive
    effective radiated power. We conclude, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended (\"Act\"),[^3] that
    Millcreek is apparently liable for a forfeiture in the amount of
    twenty-two thousand dollars (\$22,000).

**II.** **BACKGROUND**

2.  On June 20, 2000, two Denver Office Agents inspected Millcreeks\'
    co-located full power FM stations KUUU and KUDD and their respective
    booster stations KUUU-FM1 and KUDD-FM1. At the time of inspection,
    the main transmitters used by stations KUUU and KUDD, located in the
    Stansbury Mountains and Promontory Peak, respectively, were not
    operational. However, the booster station KUUU-FM1, located at a
    manned site on Farnsworth Peak, was operational, as was the
    auxiliary antenna facility used for KUDD, located at Ensign Peak.
    Both stations were rebroadcasting the programming of their
    respective main FM station.

3.  At the time of inspection, EAS equipment, although present at the
    co-located facilities for stations KUUU and KUDD, was not installed
    or connected so as to be operational. Review of the station log
    maintained by KUDD and KUUU revealed that no required weekly test
    (RWT) and no required monthly test (RMT) had been received or sent
    by either station for the period April 30, 2000, through June
    17, 2000. The station logs contained no annotation indicating EAS
    equipment failure or explaining the missed EAS RWTs and RMTs.

4.  On March 9 and 12, 2001, the Denver Office issued Notices of
    Violation (\"NOV\") to Millcreek for the FCC rule violations
    detected at KUUU and KUDD during the inspection, including, among
    others, a violation of Section 11.35 of the Rules for failing to
    have EAS equipment installed and operational. On May 2, 2001,
    Millcreek responded to the NOV\'s. Millcreek acknowledged the
    violation of the EAS rules and stated that immediately following the
    FCC inspection the EAS system for KUUU and KUDD was restored to
    fully operational status. In addition, Millcreek reported that
    procedures have been established and communicated to station staff
    to ensure that all appropriate EAS receive tests and equipment
    issues are properly logged and that appropriate entries are entered
    in the station log indicating reasons why tests were not received.

5.  Denver Office Agents also inspected booster station KUUU-FM1 on June
    20, 2000. KUUU-FM1 was authorized at that time to operate with 24
    watts transmitter output power and an effective radiated power in
    the horizontal plane of 50 watts with the horizontally polarized
    antenna and 50 watts with the vertically polarized antenna. In
    particular, KUUU-FM1 was authorized to operate using two Scala
    CA5-FM/CP/RM directional antennas with major lobe directions of 50
    degrees with 25% power and 135 degrees with 75% power, at a height
    of radiation center above ground at six meters on a tower located on
    the east side of the main transmitter building at licensed
    coordinates N40-39-34, W112-12-06. At the time of inspection on June
    20, 2000, KUUU-FM1 was operating with transmitter output power
    measured at 285 watts and an effective radiated power in excess of
    142 watts with one vertically polarized antenna. In particular,
    KUUU-FM1 was operating using one NiCom non-directional vertical
    polarized antenna, similar to Model BKG-1/P, at a height of
    radiation center above ground at approximately 14 meters, on a steel
    pole on the west side of the main building atop Farnsworth Peak at
    coordinates of N40-39-35, W112-12-06.

6.  Millcreek suspended operation of KUUU-FM1 on the unauthorized
    antenna at the unauthorized power level immediately after the FCC
    inspection. Operation of KUUU-FM1 was resumed only after the
    transmitter was reconnected to the authorized antennas at the
    authorized height, effective radiated power and transmitted power
    output.

7.  On March 5, 2001, the Denver Office issued a Notice of Violation
    (\"NOV\") to Millcreek for station KUUU-FM1\'s failure at the time
    of the inspection to operate in accordance with the technical
    parameters of the translator station license, which included
    operation with an unauthorized transmitting antenna system,
    operating at an unauthorized location and operating with excessive
    effective radiated

power.[^4] On May 2, 2001, Millcreek responded to the NOV. Millcreek
acknowledged the violations and stated that a written policy was
developed and distributed to the technical personnel stating that all
future changes to the station\'s operating plant must be approved in
advance by the station\'s manager, who will engage as appropriate, the
licensee\'s consulting engineer to ensure that any alterations to the
station\'s transmitting equipment comport with the Commission\'s Rules.
Following the inspection of the booster, Millcreek submitted
applications seeking authority to modify the technical parameters of the
operation and authority to establish the KUUU-FM1 booster facility as an
auxiliary facility.[^5]

**III. DISCUSSION**

8.  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. The term
    \"willful\" as used in Section 503(b) has been interpreted to mean
    simply that the acts or omissions are committed knowingly.[^6]

9.  Commission licensees are responsible for familiarizing themselves
    and complying with applicable statutes and Commission Rules and
    policies. The Rules provide that every AM and FM broadcast station
    is part of the nationwide EAS network and is categorized as a
    participating national EAS source unless the station affirmatively
    requests authority to not participate.[^7] The EAS provides the
    President and state and local governments with the capability to
    provide immediate and emergency communications and information to
    the general public.[^8] State and local area plans identify local
    primary sources responsible for coordinating carriage of common
    emergency messages from sources such as the National Weather Service
    or local emergency management officials.[^9]

10. Section 11.35(a) of the Rules states that \"\[b\]roadcast
    stations...are responsible for ensuring that EAS Encoders, EAS
    Decoders and Attention Signal generating and receiving equipment
    used as part of the EAS are installed so that the monitoring and
    transmitting functions are available during the times the stations

and systems are in operation.\" Millcreek did not have EAS equipment
installed and operational at stations KUUU and KUDD at the time of
inspection. Based on the evidence, we find that Millcreek willfully
violated Section 11.35 of the Rules by failing to have an operational
EAS.

11. In general, the Rules require stations to operate in compliance with
    applicable technical rules and the terms of the station
    authorization. Section 74.1251 of the Rules provides that licensees
    must formally apply to the FCC and be granted permission by the FCC
    before making a change in the transmitting antenna system including
    the direction of radiation or directive antenna pattern, a change in
    the location of the translator or booster except a move within the
    same building or upon the same pole or tower, a change of authorized
    effective radiated power and a change in the area being served. At
    the time of inspection on June 20, 2000, KUUU-FM1 was operating with
    an unauthorized transmitting antenna system installed at an antenna
    height exceeding that authorized at a location 1º from its
    authorized location with excessive effective radiated power and was
    serving areas outside the principal community to be served. Based on
    the evidence before us, we find that on June 20, 2000, Millcreek
    willfully violated Section 74.1251 of the Rules by failing to
    operate KUUU-FM1 in accordance with the technical parameters of the
    booster station\'s authorization.

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*\"),[^10] and Section 1.80 of the Commissions Rules,[^11]
    for EAS equipment not installed or operational is \$8,000, for use
    of unauthorized equipment is \$5,000, for exceeding authorized
    antenna height is \$5,000, for exceeding power limits is \$4,000.
    Application of the base amount to the noted violations results in a
    total base forfeiture amount of \$22,000. 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,[^12] 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. The violations for which
    forfeitures are assessed in this NAL are the more serious of the
    numerous violations of the Rules discovered at the four Millcreek
    stations at the time of the inspection. Failure to have EAS
    equipment installed and operational at both of the main FM stations
    serving a significant area of Utah,[^13] is a serious safety-related
    rule violation. The significantly overpowered operation of booster
    KUUU-FM1, which resulted in signal coverage far beyond the 60 dbu (1
    mV/m) contour of the main FM station, is a serious violation of the
    Commission\'s technical and interference protection rules. Taking
    all of the evidence, the statutory factors and the *Forfeiture
    Policy Statement* into consideration, a \$22,000 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, that Millcreek Broadcasting,
    L.L.C., is hereby NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE
    in the amount of twenty-two thousand dollars (\$22,000) for
    violations of Sections 11.35 and 74.1251 of the Rules.[^14]

14. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
    Commission\'s Rules, within thirty days of the release date of this
    NOTICE OF APPARENT LIABILITY, Millcreek Broadcasting, L.L.C., SHALL
    PAY the full amount of the proposed forfeiture or SHALL FILE a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

15. 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.

16. 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.

17. 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.

18. 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.[^15]

19. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail \# 7001 0320 0002 9702
    4290, Return Receipt Requested, to Millcreek Broadcasting, L.L.C.,
    980 N. Michigan Avenue, Suite 1880, Chicago, Illinois 60611, and
    courtesy copied to Shainis & Peltzman, Chartered, Attn: Aaron
    Shainis, 1850 M Street, NW, Suite 240, Washington, D.C. 20036.

FEDERAL COMMUNICATIONS COMMISSION

![](media/image1.png){width="1.6493055555555556in"
height="0.5861111111111111in"}

Leo E. Cirbo

District Director, Denver Office

[^1]: ^1^ The licensed call signs for stations KUDD and KUDD-FM1 were
    changed from KFVR-FM and KFVR-FM1, subsequent to the inspection on
    June 20, 2000. All references will be made to the current call signs
    KUDD and KUDD-FM1.

[^2]: 47 C.F.R. §§ 11.35(a) and 74.1251.

[^3]: 47 U.S.C § 503(b).

[^4]: The Denver Office also issued an NOV on March 2, 2001, to
    Millcreek for station KUDD-FM1\'s failure at the time of the
    inspection to operate in accordance with the authorized technical
    parameters. KUDD-FM1 was operating at the time of the inspection
    with only one of the two antennas specified in the authorization.

[^5]: *See* File No. BPFTB-20000626AFE, application for authority to use
    a non-directional antenna system, granted December 20, 2000 by File
    No. BLFTB-20000928APN. *See also* File No. BXPH-20000626AFF,
    application for construction permit for auxiliary facility, granted
    September 27, 2000, and File No. BXLH-20010315AAE, license
    application to cover construction permit of auxiliary facility.

[^6]: 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 or
    any rule or regulation of the Commission authorized by this
    Act....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^7]: 47 C.F.R. §§ 11.11 and 11.41.

[^8]: 47 C.F.R. §§ 11.1 and 11.21.

[^9]: 47 C.F.R. § 11.18. State EAS plans contain guidelines that must be
    followed by broadcast and cable personnel, emergency officials and
    National Weather Service personnel to activate the EAS for state and
    local emergency alerts. The state plans include the EAS header codes
    and messages to be transmitted by the primary state, local and relay
    EAS sources.

[^10]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^11]: 47 C.F.R. § 1.80.

[^12]: 47 U.S.C. § 503(b)(2)(D).

[^13]: KUDD and KUUU both operate under the Wasatch Front Operational
    EAS Area under the State of Utah EAS plan. KUUU serves the Salt Lake
    City region and KUDD serves the Ogden region in Utah.

[^14]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35 and
    74.1251.

[^15]: *See* 47 C.F.R. § 1.1914.