**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-04-SD-033        |
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| Farmworker Educational Radio     | ) | NAL/Acct. No. 200432940001   |
| Network, Inc.                    | * |                              |
|                                  | * | FRN 0006911291               |
| Licensee of FM Station KRIT      |   |                              |
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| Parker, Arizona                  | * |                              |
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| Facility ID \# 88674             | * |                              |
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**FORFEITURE ORDER**

**Adopted:** September 2, 2005 **Released:** September 8, 2005

By the Regional Director, Western Region, Enforcement Bureau:

# introduction

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of seven thousand dollars (\$7,000) to
    Farmworker Educational Radio Network, Inc. ("Farmworker") for
    willful and repeated violation of Section 73.1125(a) and (e) of the
    Commission's Rules ("Rules").[^1] The noted violation involves
    Farmworker's failure to maintain a local main studio and a public
    phone number in its community of license.

#  background 

2.  On February 9, 2004, a field agent from the Commission's San Diego
    Office attempted to conduct a routine inspection of FM Station KRIT
    in Parker, Arizona. The field agent discovered that there was
    neither a studio address nor telephone listing for KRIT. A contact
    person for KRIT was ultimately found through inquires with other
    broadcasters in the area and an inspection was scheduled at the KRIT
    transmitter site. On February 12, 2004, the field agent met with an
    engineer for KRIT. The engineer advised the field agent that the
    transmitter site had served as KRIT's studio since the station began
    operations on December 15, 2002. The field agent observed that the
    transmitter site was located on a dirt road off a main street, was
    surrounded by a locked chain-link fence, and that there were signs
    posted on the fence to warn the public not to approach because of
    exposure to electromagnetic radiation. The field agent found no
    means by which the public could access the site. Inside the
    windowless transmitter building, the field agent observed that it
    contained, besides the transmitter itself, only a single desk and
    chair. There were no restroom facilities, nor was there any staff
    present at the site. According to the KRIT engineer, staff from the
    licensee rarely visited the site, except for maintenance of the
    transmitter and Emergency Alert System equipment. The engineer also
    confirmed that no local or toll-free telephone number existed for
    the station. On February 20, 2004, a Farmworker executive
    acknowledged that KRIT needed a local studio and a local phone
    number.[^2]

3.  On July 30, 2004, the San Diego Office issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") to Farmworker in the amount of
    seven thousand dollars (\$7,000) for the apparent willful and
    repeated violation of Section 73.1125(a) and (e) of the Rules.[^3]
    Farmworker filed a *Response* to the *NAL* on August 30, 2004.[^4]
    In its *Response*, Farmworker states that it had established the
    main studio for KRIT at the KRIT transmitter site but that Section
    73.1125 of the Rules does not require that it maintain a meaningful
    staff presence at the studio, nor is there any provision in Section
    73.1125 that requires "a management and staff presence on a
    full-time basis during normal business hours to be considered
    meaningful, nor is there a requirement that they must report to work
    at the main studio on a daily basis, spend a substantial amount of
    time there, and use the studio as a home base."[^5] In addition,
    Farmworker states that it was unable to obtain either a local or
    toll-free telephone number due to an ongoing dispute between the
    local telephone company and the tribe which owns the KRIT
    studio/transmitter site. Farmworker argues that, for these reasons,
    the *NAL* be rescinded and cancelled.

#  discussion

4.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^6] Section 1.80 of the
    Commission's Rules ("Rules"),[^7] 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 Farmworker'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.[^8]

5.  Section 73.1125(a) of the Rules requires the licensee of a broadcast
    station to maintain a main studio at one of the following
    locations: (1) within the station's community of license; (2) at any
    location within the principal community contour of any AM, FM or TV
    broadcast station licensed to the station's community of license;
    or (3) within twenty-five miles from the reference coordinates of
    the center of its community of license as described in Section
    73.208(a)(1).[^9] In addition, the station's main studio must serve
    the needs and interests of the residents of the station's community
    of license. To fulfill this function, a station must, among other
    things, maintain a meaningful managerial and staff presence at its
    main studio.[^10] The Commission has defined a minimally acceptable
    "meaningful presence" as full-time managerial and full-time staff
    personnel.[^11] In addition, there must be "management and staff
    presence" on a full-time basis during normal business hours to be
    considered "meaningful."[^12] Although management personnel need not
    be "chained to their desks" during normal business hours, they must
    "report to work at the main studio on a daily basis, spend a
    substantial amount of time there and ... use the studio as a home
    base."[^13]

6.  Farmworker does not dispute the fact that the site it held out as
    the main studio location for KRIT had no public access and no staff
    presence. Instead, Farmworker argues that Section 73.1125 contains
    no staffing requirements and that the staffing requirements detailed
    in the *NAL* are contained in "various Reports & Orders" issued by
    the Commission.[^14] Farmworker asserts that those Reports & Orders
    did not amend Section 73.1125 and while the "Commission is free to
    interpret its Rules, . . . . \[the\] Commission's forfeiture
    authority is limited by the Communications Act to Rule
    violations."[^15] Further, Farmworker argues that before a Rule can
    be amended, the Commission must issue a Notice of Proposed
    Rulemaking which must be published in the Federal Register and must
    be made available for public comment. Farmworker asserts that at "no
    time in any of the various proceedings involving the Reports &
    Orders did the Commission even attempt to amend the Rule . . ."[^16]

7.  We disagree with Farmworker. In adopting main studio rules, the
    Commission explicitly informed permittees and licensees that
    compliance with those rules required maintenance of a meaningful
    staff and management presence.[^17] Specifically, the Commission
    stated:

    A station must maintain a main studio which has the capability
    adequately to meet its function, as discussed above, of serving the
    needs and interests of the residents of the station\'s community of
    license. To fulfill this function, a station must 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.
    Maintenance of production and transmission capability will allow
    broadcasters to continue, at their option, and as the marketplace
    demands, to produce local programs at the studio. A meaningful
    management and staff presence will help expose stations to community
    activities, help them identify community needs and interests and
    thereby meet their community service requirements.[^18]

    Consequently, the rules, as clarified, do contain a staffing
    component, *i.e.*, maintenance of a meaningful management and staff
    presence.[^19] In addition, despite Farmworker's assertion that it
    need not follow the interpretations of the "various Reports &
    Orders" concerning Section 73.1125, we note that Section 0.445 of
    the Rules states that Commission decisions, which are published in
    the FCC Record and which contain substantive interpretations, \"may
    be relied upon, used or cited as precedent by the Commission or
    private parties in any manner.\"[^20] Consequently, we find
    Farmworker's argument to be meritless.

8.  Section 73.1125(e) requires every broadcast station to maintain a
    local or a toll-free telephone number in its community of
    license.[^21] An investigation by a Commission field agent showed
    that there was no listing for a local or a toll-free number for KRIT
    in the local phone listings. Again, Farmworker does not dispute the
    fact that it did not maintain a local or toll-free telephone number
    for the station, but asserts that it was unable to do so due to an
    ongoing dispute between the local telephone company and the tribe
    which owns the station's studio/transmitter site. Farmworker argues
    that the Farmworker executive who spoke with the San Diego agent, to
    the best of his recollection, told the San Diego agent about the
    station's "problem of not being able to get a telephone line to the
    site . . ."[^22] Farmworker's inability to procure a phone line to
    the main studio/transmitter site does not negate Farmworker's
    responsibility to maintain a local or toll-free telephone *number*
    in KRIT's community of license. In addition, a review of Commission
    records, and the KRIT public inspection file, revealed that as of
    the date of issuance of the *NAL*, Farmworker had not filed for, nor
    received, a waiver of any of the requirements of Section 73.1125,
    including the requirement that the station maintain a local or
    toll-free telephone number in the community of license.
    Consequently, we find this argument to be meritless as well.

9.  We have examined Farmworker'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
    Farmworker willfully and repeatedly violated Section 73.1125 of the
    Rules. Considering the entire record and the factors listed above,
    we find that neither reduction nor cancellation of the proposed
    \$7,000 forfeiture is warranted.

#  ordering clauses

10. 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(f)(4) of the Commission's Rules,[^23] Farmworker
    Educational Radio Network, Inc. **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of ­seven thousand dollars (\$7,000) for
    willfully and repeatedly violating Section 73.1125(a) and (e) of the
    Commission's Rules.

11. 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.[^24] 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/Acct. No. and FRN No. referenced above. 
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911- 6106. 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.[^25]

12. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to
    Farmworker Educational Network, Inc., 4600 Ashe Road, Suite 313,
    Bakersfield, California 93313 and to Anne Thomas Paxson, Esquire,
    Borsari and Paxson, 4000 Albemarle Street, N.W., Suite 100,
    Washington, D.C., 20016. Additionally, a copy of this *Order* shall
    be sent by regular mail to Farmworker Educational Network, Inc.,
    6313 Scherra Court, Bakersfield, California 93313.

    FEDERAL COMMUNICATIONS COMMISSION

    Rebecca L. Dorch

    Regional Director, Western Region

    Enforcement Bureau

[^1]: 47 C.F.R. § 73.1125(a),(e).

[^2]: Farmworker is also the licensee of KCEC-FM in Wellton, Arizona.
    The main studio for that station is over one hundred miles from
    Parker, Arizona.

[^3]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200432940001 (Enf. Bur., Western Region, San Diego Office, July 30,
    2004).

[^4]: Response of Farmworker Education Radio Network, Inc., filed August
    30, 2004 ("*Response*").

[^5]: *Response* at 2.

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. § 1.80.

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 C.F.R. § 73.208(a)(1).

[^10]: *See Main Studio and Program Origination Rules*, 2 FCC Rcd 3215,
    3217-18 (1987), *clarified* 3 FCC Rcd 5024, 5026 (1988).

[^11]: *Jones Eastern of the Outer Banks, Inc*., 6 FCC Rcd 3615, 3616
    (1991), *clarified* 7 FCC Rcd 6800 (1992) ("*Jones Eastern Cases*").

[^12]: *Id.*

[^13]: 7 FCC Rcd at 6802.

[^14]: *Response* at 2.

[^15]: *Response* at 2.

[^16]: *Response* at 3.

[^17]: *Main Studio and Program Origination Rules*, 3 FCC Rcd 5024
    (1988).

[^18]: *Main Studio and Program Origination Rules*, 3 FCC Rcd 5024, ¶24
    (footnotes omitted).

[^19]: The Commission further elaborated on the requirement of a
    "meaningful management and staff presence" in the *Jones Eastern
    Cases*, cited above.

[^20]: 47 C.F.R. § 0.445(e).

[^21]: 47 C.F.R. § 73.1125(e).

[^22]: *Response* at 3.

[^23]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^24]: 47 U.S.C. § 504(a).

[^25]: *See* 47 C.F.R. § 1.1914.