Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-07-HL-099       |
|                                  |   |                                 |
| JMK Communications, Inc.         | ) | NAL/Acct. No.: 200732860001     |
|                                  |   |                                 |
| Licensee of AM Broadcast Station | ) | FRN: 0007309503                 |
| KREA                             |   |                                 |
|                                  | ) |                                 |
| Honolulu, HI                     |   |                                 |
|                                  | ) |                                 |
| Facility ID 39773                |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted: March 27, 2008 Released: March 31, 2008**

By the Regional Director, Western Region, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of four thousand dollars (\$4,000) to JMK
    Communications, Inc. (\"JMK\"), licensee of AM Broadcast Station
    KREA, in Honolulu, Hawaii, for willful and repeated violations of
    Section 73.44(b) of the Commission\'s Rules (\"Rules\").[^1] On
    August 7, 2007, the Enforcement Bureau's Honolulu Resident Agent
    Office issued a *Notice of Apparent Liability for Forfeiture*
    ("*NAL*") in the amount of \$4,000 to JMK for failing to ensure that
    emissions removed by more than 75 kHz from the KREA fundamental
    frequency of 1540 kHz were attenuated 80 dB below the unmodulated
    carrier level. In this *Order*, we consider JMK's arguments that it
    was not responsible for the violation, and that it has taken
    extensive remedial actions to cure the violation.

# BACKGROUND

2.  On April 12, 2007, the Honolulu Office received a complaint alleging
    that an AM broadcast station on 1540 kHz was causing interference on
    1810 kHz and that the interference was a result of spurious
    emissions. 1810 kHz is authorized for primary use by stations in the
    Amateur Radio Service.[^2]

3.  On April 17, 2007, Honolulu agents inspected AM Broadcast Station
    KREA, which is licensed to operate on 1540 kHz in Honolulu, Hawaii.
    The agents employed a calibrated spectrum analyzer and an external
    magnetically mounted antenna to measure spurious emissions from KREA
    on 1810 kHz, attenuated -60 dB referenced to the KREA carrier on
    1540 kHz.

4.  A Notice of Violation ("*NOV*") was issued to JMK Communications,
    Inc., licensee of AM Broadcast Station KREA, on April 26, 2007,
    citing JMK for violation of Section 73.44(b) of the Rules.[^3] JMK
    replied to the Notice via letter dated May 15, 2007. In its
    response, JMK acknowledged the spurious emissions, and stated that
    they had remedied the problem.

5.  On May 22, 2007, a Honolulu agent again inspected AM Broadcast
    Station KREA. The Honolulu agent employed a calibrated spectrum
    analyzer and an external magnetically mounted antenna and measured
    spurious emissions from KREA on 1810 kHz, attenuated -59 dB
    referenced to the KREA carrier on 1540 kHz. The agent spoke to the
    local KREA contract engineer, who stated that the installed
    filtering had failed and needed to be replaced. The agent also spoke
    with the individual who had designed and installed the rejection
    filters for the station and he confirmed that the installed filters
    had failed, and stated that further repairs were pending.[^4]

6.  On July 9, 2007, a Honolulu agent again inspected AM Broadcast
    Station KREA. The agent employed a calibrated spectrum analyzer and
    an external magnetically mounted antenna and measured spurious
    emissions from KREA on 1810 kHz, attenuated -55 dB referenced to the
    KREA carrier on 1540 kHz.

7.  On July 18, 2007, the Honolulu Office received another e-mail
    complaint alleging interference to Amateur Radio Service operations
    on 1810 kHz. The complaint stated that the spurious emissions had
    continued unabated.

8.  On August 7, 2007, the Honolulu Office issued a *NAL* in the amount
    of \$4,000 to JMK, finding that JMK apparently willfully and
    repeatedly violated Section 73.44(b) of the Rules by failing to
    adequately attenuate the spurious emissions on 1810 kHz.[^5] JMK
    filed a response ("*Response*") on September 6, 2007, and then
    supplemented that response ("*Supplemental Response"*) on December
    11, 2007. In its *Response*, JMK argued that it is not responsible
    for the violation, but that it would be willing to work with the
    Honolulu Office to resolve the issue. After working with the
    Honolulu Office for four days in October, 2007, JMK filed its
    *Supplemental Response*, which reiterated the arguments of its
    *Response*, but supplied new, and conflicting, engineering data and
    information.

# III. DISCUSSION

9.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^6] Section 1.80 of the
    Rules,[^7] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines* ("*Forfeiture Policy Statement"*).[^8] In examining
    JMK'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.[^9]

10. Section 73.44(a) of the Rules requires that "\[t\]he emissions of
    stations in the AM service shall be attenuated in accordance with
    the requirements specified in paragraph (b) of this section."[^10]
    Section 73.44(b) of the Rules requires that "\[e\]missions removed
    by more than 75 kHz (from the carrier) must be attenuated at least
    43 + 10 Log (Power in watts) or 80 dB below the unmodulated carrier
    level, whichever is the lesser attenuation\...."[^11] Because AM
    Broadcast Station KREA is licensed to operate on 1540 kHz, at 5000
    watts, the emissions on 1810 kHz must be attenuated 80 dB. The
    frequency 1810 kHz is not assigned for broadcast use, and the
    station's emissions on 1810 kHz are impacting primary Amateur Radio
    Service use. On April 26, 2007, JMK received a *NOV* from the
    Honolulu Office notifying JMK that it is was operating in violation
    of Section 73.44(b) by failing to ensure that its emissions on 1810
    kHz were attenuated 80 dB. Two subsequent investigations by Honolulu
    agents, on May 22, 2007, and July 9, 2007, revealed KREA was
    producing spurious emissions on 1810 kHz, attenuated -59 dB, and -55
    dB, respectively.

11. JMK first argues that it is not responsible for the violation of
    Section 73.44(b). Specifically, in its *Response*, JMK states that
    in response to the *NOV,* its engineer "installed an extra shunt
    filter in order to ensure proper operation. He went on to take a
    series of measurements that demonstrate that even with the KREA
    transmitter turned completely off, there was still a significant
    signal detected at 1810 kHz." JMK argues, therefore, that the
    filtering it had installed had not failed, as suggested by the
    Honolulu Office in the *NAL,* "but rather that the 1810 kHz signal
    is originating from some other unrelated source." Consequently, JMK
    states that "KREA's operations do not appear to be the source of the
    unauthorized emissions cited in the \[*NAL*\]," and, therefore, asks
    that the forfeiture be cancelled. In its *Supplemental Response*,
    JMK states that "its own equipment is not the source, but only a
    passive contributor." JMK also reiterates that it "is not the cause
    of this problem." However, in the *Engineering Report* included with
    the *Supplemental Response*, the JMK engineer states that "the 1810
    kHz signal remains and even increases in level slightly when the
    KREA transmitter is turned off . . . . The signal only goes away
    when the \[KREA\] transmitter AC power is disconnected or the \[KREA
    antenna tuning unit ("ATU")\] is disconnected from the tower." As
    the JMK engineer ran tests with the other AM stations he found that
    "\[t\]he only station which had any effect on the 1810 kHz signal
    while KREA was off is KNDI (1270 kHz, facility ID 37065) which
    eliminated the signal when their transmitter was turned off."
    However, after several different attempts to determine the cause of
    the emissions, the JMK engineer determined that it was "evident that
    the \[KREA\] transmitter itself may be playing some factor in this
    since the only way the spur is completely eliminated is with the
    \[KREA\] transmitter completely off or disconnected." When he
    contacted the designer of the KREA transmitter, the JMK engineer was
    told that "when the transmitter has power but the carrier is off \[
    . . . \], any external RF excitation which enters the PA stage can
    still be mixed with the carrier and transmitted since the
    transmitter is a very efficient mixer." The JMK engineer then
    calculated that "\[u\]sing direct ratios the power level for a 1810
    kHz spur at -60 dB (using KREA's 5 kW as the reference) would
    require only 5 milliwatts into the tower." The JMK engineer then
    concluded that the "diplexing filters need to be redesigned to
    provide better isolation than what was required by the previous
    tube-type transmitter used at KREA."

12. Upon review of the *Response* and *Supplemental Response*, we find
    that the statements in the *Engineering Report* included in the
    *Supplemental Response* support the determination made by the
    Honolulu Office that KREA was causing spurious emissions on 1810
    kHz. As JMK noted in its *NOV* response, the emission on 1810 kHz is
    apparently a "mixing product" caused by KREA's second harmonic (3080
    kHz) and operations by KNDI on 1270 kHz. However, while KNDI may
    have passively contributed to the resulting emissions on 1810 kHz,
    given the frequencies and harmonics involved, KREA acknowledges that
    the offending signal on 1810 kHz "only goes away when then \[KREA\]
    transmitter AC power is disconnected or the \[KREA\] ATU is
    disconnected from the tower." Consequently, we find that KREA is
    responsible for the spurious emissions on 1810 kHz.

13. JMK also argues that the forfeiture should be cancelled because of
    the "highly responsive and responsible efforts and extraordinary
    expense" it has incurred to remedy this problem. We applaud JMK's
    efforts in this regard, and particularly commend the diligence of
    its engineer in trying to resolve the spurious emissions. However,
    the Commission has consistently held that a licensee is expected to
    correct errors when they are brought to the licensee's attention and
    that such correction is not grounds for a downward adjustment in the
    forfeiture.[^12] Because JMK has provided no evidence to show that
    it began its efforts to correct the spurious emission until after it
    was alerted to the problem by the FCC agents from the Honolulu
    Office, we are unable to reduce the forfeiture amount based on its
    remedial efforts.

14. We have examined the *Response* and the *Supplemental 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 JMK willfully and repeatedly violated
    Section 73.44(b) of the Rules. Considering the entire record and the
    factors listed above, we find that neither reduction nor
    cancellation of the proposed \$4,000 forfeiture is warranted.

# IV. ORDERING CLAUSES

15. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended ("Act"), and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, JMK
    Communications, Inc., **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of \$4,000 for willfully and repeatedly violating Section
    73.44(b) of the Rules.[^13]

16. 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.[^14] Payment of the
    forfeiture must be made by check or similar instrument, payable to
    the order of the Federal Communications Commission. The payment must
    include the NAL/Account Number and FRN Number referenced above.
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 979088, St. Louis, MO
    63197-9000. Payment by overnight mail may be sent to U.S. Bank --
    Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
    Louis, MO 63101. Payment by wire transfer may be made to ABA Number
    021030004, receiving bank TREAS/NYC, and account number 27000001.
    For payment by credit card, an FCC Form 159 (Remittance Advice) must
    be submitted.  When completing the FCC Form 159, enter the
    NAL/Account number in block number 23A (call sign/other ID), and
    enter the letters "FORF" in block number 24A (payment type code).
    Requests for full payment under an installment plan should be sent
    to:  Chief Financial Officer \-- Financial Operations, 445 12th
    Street, S.W., Room 1-A625, Washington, D.C.  20554.   Please contact
    the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
    <ARINQUIRIES@fcc.gov> with any questions regarding payment
    procedures.

17. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    JMK Communications, Inc., at its address of record, and Peter
    Gutmann, Esquire, its counsel of record.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 73.44(b).

[^2]: 47 C.F.R. §§ 97.301, 2.106.

[^3]: 47 C.F.R. § 73.44(b). As KREA is licensed to operate at 5000
    watts, the emissions are required to be attenuated 80 dB.

[^4]: JMK disputes that the filters failed. *See Response* at 1;
    *Supplemental Response* at 1.

[^5]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200732860001 (Enf. Bur., Western Region, Honolulu Resident Agent
    Office, released August 7, 2007).

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. § 1.80.

[^8]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^9]: 47 U.S.C. § 503(b)(2)(E).

[^10]: 47 C.F.R. § 73.44(a).

[^11]: 47 C.F.R. § 73.44(b).

[^12]: *See AT&T Wireless Services, Inc.,*17 FCC Rcd 21866, 21875-76
    (2002); *Seawest Yacht Brokers,* 9 FCC Rcd 6099 (1994).

[^13]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4),
    73.44(b).

[^14]: 47 U.S.C. § 504(a).