**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Liability of KXOJ, Inc. )

)

Licensee of Stations KEOJ(FM), )

Caney, KS, and KEMX(FM), )

Locust Grove, OK )

)

For a Forfeiture )

**MEMORANDUM OPINION AND ORDER**

**AND FORFEITURE ORDER**

**Adopted: October 25, 1999 Released: October 27, 1999**

By the Chief, Mass Media Bureau:

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. The Commission, by the Chief, Mass Media Bureau, acting
pursuant to authority delegated by Section 0.283(c)(3) of the
Commission\'s Rules, has before it for consideration: (1) a Notice of
Apparent Liability (\"NAL\") for a forfeiture in the amount of \$15,000,
issued on June 30, 1999, to KXOJ, Inc. (\"KXOJ\"), licensee of
commercial radio stations KEOJ(FM), Caney, Kansas, and KEMX(FM), Locust
Grove, Oklahoma; and (2) a July 28, 1999, response thereto submitted by
KXOJ. KXOJ requests that the forfeiture be rescinded or, alternatively,
reduced.[^1] For the reasons that follow, we deny KXOJ\'s request for
rescission, but grant its request for partial reduction of the original
forfeiture amount, pursuant to Section 503(b) of the Communications Act
of 1934, as amended, 47 U.S.C. § 503(b) (the \"Communications Act\").

2\. In the NAL, we determined that KXOJ had failed to maintain the
stations\' main studios within their respective principal community
contours, and had relocated them outside those contours without having
first obtained required Commission authorizations, in apparent violation
of Section 73.1125 of the Commission\'s Rules. We further found that the
licensee had apparently violated the station identification rule,
Section 73.1201 of the Commission\'s Rules, with respect to Station
KEOJ(FM), by inserting impermissible information between its call
letters and community of license during a \"top-of-the hour\" station
identification. In support of the monetary forfeiture, the NAL
specifically cited the substantial duration of the main studio
violations occurring continuously since October 15, 1992. The NAL did
not, however, impose any additional monetary fine for the licensee\'s
apparent violation of the station identification rule.

3\. In its response to the NAL, KXOJ contends that the forfeiture should
be reduced or rescinded because it received incorrect advice from the
Commission\'s licensing staff, and, as a result, it was never made aware
of the need to obtain a waiver. KXOJ claims that it contacted the
Commission\'s legal staff, which allegedly advised that such relocations
were permissible, without waiver, so long as the licensee maintained a
toll-free telephone number in each of its communities of license. KXOJ
also contends that it fully disclosed its intention to consolidate its
studios in applications for \"intercity relays\" and
\"studio-transmitter links\" (\"STLs\") that facilitated program
transmission among the stations, and that because the Commission\'s
licensing staff never advised it to seek a separate main studio waiver,
it assumed none was necessary. KXOJ further argues that it has taken
steps to diminish the impact of the loss of the affected communities\'
main studios. In this regard, KXOJ claims that it has conducted
programming ascertainment, broadcast public service announcements, and
maintained its toll-free telephone numbers and station public inspection
files locally. In these ways, KXOJ asserts, it remains significantly
connected to the communities it is licensed to serve. Finally, KXOJ
contends that, because it did not intend to violate the main studio
rule, no penalty should be assessed.[^2]

4\. We have reexamined the forfeiture imposed in view of the statutory
factors set forth in Section 503(b)(2)(D) of the Communications Act
pertaining to the nature, circumstances, extent and gravity of the
apparent violations. We affirm the prior finding that the licensee
violated the main studio rule. For the reasons set forth below, we
further conclude that, in this case, rescission is not warranted, but
that partial reduction of the monetary forfeiture proposed in the NAL,
from \$15,000 to \$12,000, is appropriate.

5\. KXOJ asserts that the monetary fine should be rescinded or reduced
because its rule violation was not willful or intentional. However, it
is not pertinent whether a licensee\'s acts or omissions were
specifically intended to violate the law because the term \"willful,\"
as used in Section 503(b) of the Act, has been interpreted to mean
simply that the acts or omissions were committed knowingly.
[See]{.underline} [Liability of Cate Communications Corp.]{.underline},
60 RR 2d 1386 (1986), [citing]{.underline} [Midwest Radio Television,
Inc.]{.underline}, 45 FCC 1137 (1963). In this case, KXOJ does not
contend that the main studio relocation occurred without its knowledge.
Further, in view of the nearly seven years\' duration of the violation,
there is ample evidence in this case that the violation was, in fact,
\"repeated.\"[^3] Moreover, the unauthorized relocation cannot be said
to reflect an isolated lapse of judgment or single act of negligence.
[Cf]{.underline}. [Rumbaut Management, Inc.]{.underline}, DA 95-2303
(MMB 1995) (minimal forfeiture for violation of anti-lottery advertising
rule appropriate where there were only three such instances, two of
which were based upon prohibited mention of \"casino\" during a live
interview).

6\. Furthermore, we find no merit to KXOJ\'s assertion that its efforts
to offset the impact of the loss of the main studios in the affected
communities warrants rescission or reduction of the forfeiture. In this
particular, we note that the main studio rule specifically requires
licensees to maintain local telephone listings or toll-free numbers.[^4]
Moreover, under the former rule, in effect until October 30, 1998,
licensees were also obligated to maintain their public files in their
respective communities of license, even where the main studios had been
located outside.[^5] However, KXOJ does not demonstrate how its
observance of these aspects of the main studio and public file
inspection rules excuses its decision to relocate the Caney, KS, and
Locust Grove, OK, main studios without first obtaining proper authority.
Similarly, the licensee cites no instance where a licensee\'s
performance of community programming ascertainment, or the broadcast of
community-based public service announcements, has been found by the
Commission to nullify or excuse a main studio rule violation, and we
decline to do so now.

7\. Nonetheless, we recognize the presence of a single mitigating
circumstance in this case. It appears that KXOJ attempted to ascertain
the proper course to follow when it sought staff advice and made
application for STLs in connection with its main studio relocations.[^6]
To this end, KXOJ informed the Commission of its plans to relocate in
its STL applications. KXOJ apparently understood, albeit erroneously,
that main studio relocations could be made through securing STLs, and
without obtaining separate waivers. While KXOJ\'s understanding was
incorrect, it appears that it was seeking information and application
forms to comply with the Commission\'s requirement. [See]{.underline},
[e.g.]{.underline}, [Liability of Monte Corporation]{.underline}, 11 FCC
Rcd 20535 (MMB 1996), [citing]{.underline} [Victor Valley Broadcasting,
Inc.]{.underline}, 2 FCC 2d 495 (1966). Given these circumstances, we
conclude that a \$3,000 reduction in the forfeiture is appropriate.
[See]{.underline}, [e.g,]{.underline} [Liability of Monte
Corporation]{.underline}, [supra]{.underline} (twenty percent reduction
in forfeiture amount warranted in similar circumstance).

8\. Finally, we note that while KXOJ has alleged generally that it
possesses limited financial resources, it has not provided evidence that
the forfeiture amount in this case poses a hardship, or otherwise
demonstrated its inability to pay. [See]{.underline} Paragraph I(B) of
the Attachment to the NAL. [See]{.underline} [also]{.underline}
[Liability of Springtown Educational Broadcasting
Foundation]{.underline}, 7 FCC Rcd 2588 (MMB 1992). Consequently, we
have no basis to reduce or rescind the fine under this factor. We are,
however, willing to entertain a request for an installment plan. If KXOJ
wishes to arrange a payment plan, it should address its request to:
Regina Dorsey, Chief, Credit & Debt Management Center, Financial
Operations Division, Office of Managing Director, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554.

9\. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. Sec. 503(b), KXOJ,
Inc. FORFEIT to the United States the sum of Twelve Thousand Dollars
(\$12,000) for the willful and repeated violation of Section 73.1125 of
the Commission\'s Rules, 47 C.F.R. Sec. 73.1125, as described above.
KXOJ, Inc. may take any of the steps outlined in the attachment to this
letter regarding payment of the forfeiture pursuant to Section 1.80 of
the Commission\'s Rules.

10\. The Mass Media Bureau will send by Certified Mail \-- Return
Receipt Requested, copies of this Memorandum Opinion and Order and
Forfeiture Order to KXOJ, Inc.

FEDERAL COMMUNICATIONS COMMISSION

Roy J. Stewart

Chief, Mass Media Bureau

[^1]: ^?^ The petition also requests \"waiver\" of the main studio rule
    to enable the subject stations to remain outside their principal
    community contours and collocated at their current site in Tulsa,
    Oklahoma. According to Section 73.1125(c)(2) of the Commission\'s
    Rules, however, main studio waivers \"may be requested by filing a
    letter with an explanation of the proposed changes with the
    appropriate division,\" which, in this case would be the Mass Media
    Bureau\'s Audio Services Division. We further note that the
    appropriate fee required under Section 1.1104 of the Commission\'s
    Rules was not submitted in connection with the instant main studio
    waiver request. Consequently, we will not address that waiver
    request in this item. We note, however, that licensees are not
    excused from their duty to comply with the main studio rule during
    the pendency of rule waiver requests.

[^2]: ^?^ It should be noted that KXOJ did not appeal our finding that
    it apparently violated the Commission\'s station identification
    rule. While it made no specific showing alleging inability to pay,
    it contends generally that the main studio relocations occurred, in
    the first instance, because maintaining separate studios was costing
    it \"more than the company could bear.\"

[^3]: ^?^ The Act specifies this criterion as an alternative
    justification for assessing forfeitures. [See]{.underline}
    [Liability of Cate Communications Corp]{.underline}.,
    [supra]{.underline}. [See]{.underline} [also]{.underline} [Hale
    Broadcasting Corp.]{.underline}, 79 FCC 2d 169, 171 (1980)
    (interpreting \"repeatedly\" to mean \"simply more than once\").

[^4]: ^?^ [See]{.underline} Sec. 73.1125(d) of the Commission\'s Rules
    (formerly found at paragraph (c)).

[^5]: ^?^ [See]{.underline} former Sec. 73.3526(d) of the Commission\'s
    Rules. Under the new rule, the public inspection file shall be
    maintained at the main studio of the station, or, in the case of a
    new station or change of community, at an accessible place in the
    proposed community of license or at the proposed main studio.
    [See]{.underline} Sec. 73.3526(b) of the Commission\'s Rules.

[^6]: ^?^ [See]{.underline} File Nos. BPLIC-920811MH; BPLST-920811MG;
    BPST-920811MI.