**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-04-PO-144       |
|                                  |   |                                 |
| Bustos Media Holdings of Oregon, | ) | NAL/Acct. No: 200532920001      |
| LLC                              |   |                                 |
|                                  | ) | FRN: 0009298852                 |
| Former Licensee of Station       |   |                                 |
| KZNY(AM)                         | ) |                                 |
|                                  |   |                                 |
| Milwaukie, Oregon                | ) |                                 |
|                                  |   |                                 |
| Facility ID \# 68212             | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: April 7, 2005

By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Bustos Media of Oregon, LLC. ("Bustos"),[^1] licensee of
    station KZNY(AM), in Milwaukie, Oregon, apparently willfully and
    repeatedly violated Section 73.1745(a) of the Commission\'s Rules
    (\"Rules\")[^2] by failing to operate KZNY in accordance with the
    station's authorized power and hours of operation. We conclude,
    pursuant to Section 503(b) of the Communications Act of 1934, as
    amended (\"Act\"),[^3] that Bustos is apparently liable for a
    forfeiture in the amount of four thousand dollars (\$4,000).

# BACKGROUND

2.  Station KZNY is authorized to operate on 1010 kHz with 4,500 watts
    during daytime hours. [^4] Daytime is defined as the "period of time
    between local sunrise and local sunset."[^5] In Milwaukie, Oregon,
    during the month of August, local sunrise occurs at 6:15 a.m. and
    local sunset occurs at 8:15 p.m. In September, local sunrise occurs
    at 6:45 a.m. and local sunset occurs at 7:30 p.m.[^6] KZNY is also
    authorized to operate under a presunrise service authorization
    ("PSRA") and a postsunset service authorization ("PSSA") which
    extends the hours of operation earlier into the morning and later
    into the night.[^7] Taken together, these authorizations allow KZNY
    to operate between 6:00 a.m. and 10:15 p.m., only, during the month
    of August and between 6:00 a.m. and 9:30 p.m., only, during the
    month of September.

3.  On August 23, 2004, the Resident Agent from the Commission's
    Portland Resident Agent Office monitored KZNY operating on 1010 kHz
    at 11:35 p.m. Field strength measurements made by the agent at a
    distance of 2.5 miles from the KZNY transmitting antenna measured 14
    mV/m ("millivolts/meter"). On August 27, 2004, the Portland agent
    again monitored KZNY operating on 1010 kHz at 4:00 a.m. Field
    strength measurements made by the agent at a distance of 2.5 miles
    from the transmitting antenna measured 13 mV/m.

4.  Later on August 27, 2004, the Portland agent conducted an inspection
    of the station. During the inspection, the agent queried the general
    manager about KZNY's nighttime operation indicating that KZNY had no
    authority to operate at night. The general manager replied that the
    station had always operated at night. The agent also queried KZNY's
    chief engineer about the nighttime operation. The chief engineer
    replied that the station was permitted to operate at night under a
    "grandfather" clause that allowed daytime only stations to operate
    at night with very limited power. The chief engineer told the agent
    that he would fax the authorization to the agent. The authorizations
    received by the agent were the KZNY PSRA/PSSA authorizations.

5.  On September 9, 2004, the Portland agent monitored KZNY operating on
    1010 KHz at 9:45 p.m. Field strength measurements made by the agent
    at a distance of 0.6 miles from the KZNY transmitting antenna
    measured 16 mV/m.

6.  On September 15, 2004, a review of Commission databases and archives
    revealed that KZNY had no license, authorization or special
    temporary authorization to operate beyond the parameters in the
    authorizations listed above. Later that day, at 10:25 p.m., the
    Portland agent monitored KZNY on 1010 KHz but found that the station
    was not operating.

    **III. DISCUSSION**

7.  Section 503(b) of the Act provides that any person who repeatedly
    fails to comply substantially with the terms and conditions of any
    license, or repeatedly 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.[^8] The
    term "repeated" means the commission or omission of such act more
    than once or for more than one day.[^9]

8.  The Rules state that each licensee is responsible for maintaining
    and operating its broadcast station in a manner which complies with
    the technical rules and in accordance with the terms of the station
    license.[^10] Specifically, Section 73.1745 of the Commission's
    Rules states that no broadcast station shall operate at times or
    with modes or power, other than those specified and made a part of
    the license. Station KZNY is authorized for operations during
    daytime with 4500 watts power. Additionally, KZNY is authorized for
    limited presunrise and postsunset operations pursuant to its
    PSRA/PSSA authorizations. However, KZNY is not authorized to operate
    between 10:15 p.m. to 6:00 a.m. during the month of August and
    between 9:30 p.m. to 6:00 a.m. during the month of September.

9.  On August 23, 2004, August 27, 2004, and September 9, 2004, the
    Portland Resident Agent monitored KZNY operating outside the hours
    of authorized operation. On August 27, 2004, the agent indicated to
    the KZNY general manager that the station had no authority to
    operate at night. When the agent asked the station's general manager
    and the chief engineer if the station was authorized for nighttime
    operation, both indicated that the station was authorized. The only
    supporting documentation provided to the agent was the PSRA/PSSA
    authorizations. Further research by the Portland agent revealed no
    authorization for KZNY for nighttime operation beyond the station's
    PSSA/PSRA authorizations.

10. Bustos continued to operate KZNY outside of the parameters stated in
    KZNY's authorizations, despite being unable to produce an
    authorization for such operation. Therefore, Bustos' violation is
    willful. Bustos' violation occurred on more than one day, therefore,
    it is repeated. Based on the evidence before us, we find that Bustos
    apparently willfully and repeatedly violated Section 73.1745(a) of
    the Rules by operating KZNY at times outside of the KZNY station
    authorizations.

11. Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* (\"*Forfeiture Policy Statement*\"), and Section 1.80
    of the Rules, the base forfeiture amount for unauthorized emissions
    is \$4,000.[^11] 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, which include the nature,
    circumstances, extent, and gravity of the violations, 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.[^12] Applying the *Forfeiture Policy Statement*,
    Section 1.80, and the statutory factors to the instant case, we find
    that Bustos is apparently liable for a \$4,000 forfeiture.

# ORDERING CLAUSES

12. 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, Bustos Media Holdings of
    Oregon, LLC., is hereby NOTIFIED of this APPARENT LIABILITY FOR A
    FORFEITURE in the amount of four thousand dollars (\$4,000) for
    violations of Section 73.1745(a) of the Rules.[^13]

13. 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 for Forfeiture, Bustos Media Holdings
    of Oregon SHALL PAY the full amount of the proposed forfeiture or
    SHALL FILE a written statement seeking reduction or cancellation of
    the proposed forfeiture.

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/Acct. No. and FRN No.
    referenced above. Payment by check or money order may be mailed to
    Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. Payment by overnight mail may be sent to Bank One/LB
    73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
    Payment by wire transfer may be made to ABA Number 071000013,
    receiving bank Bank One, and account number 1165259.

15. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, Portland Resident
    Agent Office, P.O. Box 61469, Vancouver, Washington, 98666-1469 and
    must include the NAL/Acct. No. referenced in the caption.

16. 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.

17. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^14]

18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Bustos Media Holdings of
    Oregon, LLC, and Bustos Media of Oregon License, LLC.

FEDERAL COMMUNICATIONS COMMISSION

James M. Lafontaine

Resident Agent

Portland Resident Agent Office

Western Region

Enforcement Bureau

[^1]: On December 15, 2004, an application, File Number BAL-20041102ADC,
    was granted, assigning the KZNY(AM) license from Bustos Media
    Holdings of Oregon, LLC to Bustos Media of Oregon, LLC. On January
    28, 2005, an application, File Number BAL-20041222AAY, was granted,
    assigning the KZNY(AM) license from Bustos Media of Oregon, LLC to
    Bustos Media of Oregon License, LLC.

[^2]: 47 C.F.R. § 73.1745(a).

[^3]: 47 U.S.C. § 503(b).

[^4]: Additionally, KZNY's authorization requires operation with 1,100
    watts during the "critical hours" period. Critical hours" is defined
    as the "two hour period immediately following local sunrise and the
    two hour period immediately preceding local sunset." 47 C.F.R. §
    73.14.

[^5]: 47 C.F.R. § 73.14.

[^6]: All times indicated are local Daylight Savings Time.

[^7]: *See* 47 C.F.R. § 73.99.

[^8]: 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).

[^9]: ^?^Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that \"\[t\]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."

[^10]: 47 C.F.R. § 73.1350(a).

[^11]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^12]: 47 U.S.C. § 503(b)(2)(D).

[^13]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 73.1745(a)

[^14]: ^8^*See* 47 C.F.R. § 1.1914.