**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

)

FM Broadcast Station KNEC ) **NAL/Acct. No. 915DV0001**

Arnold Broadcasting Company, Inc. ) Case No. 99DV446

Sterling, Colorado 80751 )

**FORFEITURE ORDER**

**Adopted:** **February 7, 1999** **Released: February 9, 2000**

By the Chief, Enforcement Bureau:

1\. This order imposes a forfeiture[^1] against Arnold Broadcasting
Company, Inc. ("Arnold Broadcasting") in the amount of \$16,000 pursuant
to Section 503(b) of the Communications Act of 1934, as amended ("the
Act"), 47 U.S.C. § 503(b), and Section 1.80 of the Commission\'s Rules
("the Rules"), 47 C.F.R. § 1.80, for willful violations of Sections
11.35, 11.61, 17.4, 73.1225, 73.1350, 73.1820, and 73.1870 of the Rules,
47 C.F.R. §§ 11.35, 11.61, 17.4, 73.1225, 73.1350, 73.1820, and 73.1870.
These violations include failure to comply with the Rules for Emergency
Alert System ("EAS") equipment and antenna structure registration, as
well as numerous violations of the Rules for broadcast stations.

**BACKGROUND**

2\. On May 19, 1999, agents of the Commission's Denver Field Office
conducted a routine inspection of FM broadcast station KNEC. The agents
found numerous violations of the Rules, including: (a) failure to
install and maintain operable EAS equipment (47 C.F.R. § 11.35(a)); (b)
failure to conduct EAS tests and activations or to maintain logs of
tests or activations (47 C.F.R. §§ 11.54, 11.55, and 11.61); (c) failure
to post the antenna structure registration number at the base of the
antenna tower (47 C.F.R. § 17.4(g)); (d) failure to designate and post
the designation of a chief operator for the station (47 C.F.R.
§ 73.1870, and 73.1350(b)); (e) failure to have a chief operator review
the station's records weekly and verify in the station log that KNEC
operated in accordance with the Rules and its authorization (47 C.F.R.
§ 73.1870(c)(3)); and (f) failure to make the station's equipment
performance measurements, written designation of chief operator,
technical records, or EAS logs available to FCC representatives upon
request (47 C.F.R. §§ 73.1225(c), 73.1820(a)). In addition, KNEC's staff
was unable to demonstrate that the transmitter control system in place
would allow station personnel to control the transmitter manually or via
telephone line, and admitted that the only transmitter control for the
station was located at a distance that would not allow station staff to
take the transmitter off the air within three minutes, as required under
the Rules. *See* 47 C.F.R. § 73.1350(a) and (b)(2). Based on these
findings, the Denver Field Office issued a Notice of Apparent Liability
for monetary forfeiture ("NAL") in the amount of \$16,000 to Arnold
Broadcasting on June 7, 1999.

3\. In response to the NAL, Arnold Broadcasting contends: (1) that the
station had been on the air less than a month at the time of the
inspection and the staff was "still in the learning mode with the new
equipment and a totally new product"; (2) that all violations save the
installation of the EAS equipment were immediately rectified; (3) that
the EAS equipment was not in place due to "shipping problems beyond
\[KNEC's\] control" but would be installed as soon as it arrived; (4)
that the station operates according to automatic transmitter rules, and
the transmitter can be shut down within three minutes as required by
shutting the audio off; and (5) that the violations were not willful but
due to "oversight, overzealousness and excitement" on the part of KNEC's
staff. Arnold Broadcasting requests that the forfeiture be waived "in
light of the circumstances and the immediate correction of the cited
violations," except for the installation of EAS equipment.

**DISCUSSION**

4\. In assessing the monetary forfeiture amount, we must 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
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. *See* 47 U.S.C. § 503(b)(2)(D); *see also* *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*, FCC 99-407 (released December 28, 1999)
(*"Forfeiture Policy Statement"*). Arnold Broadcasting has not presented
any mitigating evidence that would warrant reduction or waiver of the
forfeiture.

5\. "Licensees are expected to know and comply with the Commission\'s
rules, and will not be excused for violations thereof, absent clear
mitigating circumstances." *Sitka Broadcasting Co., Inc.*, 70 FCC 2d
2375, 2378 (1979), citing *Lowndes County Broadcasting Co.*, 23 FCC 2d
91 (1970) and *Emporium Broadcasting Co.*, 23 FCC 2d 868 (1970).
Although KNEC may have been operating for less than a month at the time
of the inspection, the station's staff and owners were not neophyte
broadcasters, unfamiliar with the Rules. The NAL notes that the
principal owner of Arnold Broadcasting has been active in the broadcast
industry for 35 years, and has previously served as a local area EAS
chairman. In addition, the response to the NAL admits that all of KNEC's
staff members are "seasoned broadcasters." And though most of the
violations may have been rectified promptly after the inspection,
remedial action to correct a violation, although commendable, will not
nullify a forfeiture penalty. *See Station KGVL, Inc.*, 42 FCC 2d 258,
259 (1993). With respect to the remote transmitter control issue,
although it now appears that some remote control system for the
transmitter may be in place, it is unclear from the response whether
KNEC's studio staff is able to determine the technical parameters of the
transmitter, and thus know when it is necessary to turn the transmitter
off.

6\. Finally, Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
also applies to Section 503(b) of the Act, provides: "\[t\]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 or by a
treaty ratified by the United States." *See Southern California
Broadcasting Co.*, 6 FCC Rcd 4387 (1991). Based on the record before us,
it is clear that these violations were not caused by accident or
mistake, and were therefore willful violations.

**ORDERING CLAUSES**

7\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
the Act, 47 U.S.C. § 503(b), and Section 1.80 of the Rules, 47 C.F.R.
§ 1.80, Arnold Broadcasting Company. Inc. **IS LIABLE FOR A MONETARY
FORFEITURE** in the amount of \$16,000 for willful violations of
Sections 11.35, 11.61, 17.4, 73.1225, 73.1350, 73.1820, and 73.1870 of
the Rules.

8\. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80(f) of the
Rules, Arnold Broadcasting Company, Inc. shall, within thirty (30) days
of the release of this Forfeiture Order, pay the full amount of the
forfeiture. Forfeitures shall be paid by check, credit card, or money
order payable to the Federal Communications Commission.[^2] The
remittance should be marked "NAL/Acct. No. 915DV0001" and mailed to the
following address:

Federal Communications Commission

> Post Office Box 73482
>
> Chicago, IL 60673-7482

Petitions for reconsideration pursuant to Section 1.106 of the Rules, 47
C.F.R. § 1.106, or applications for review pursuant to Section 1.115 of
the Rules, 47 C.F.R. §1.115, should be sent to:

Office of the Secretary

> Federal Communications Commission

445 12th Street, S.W.

Washington, D.C. 20554

> ATTN: Technical & Public Safety Division
>
> Enforcement Bureau

Forfeiture penalties not paid within 30 days will be referred to the
U.S. Attorney for recovery in a civil suit. *See* 47 U.S.C. § 504(a).

9\. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent
certified mail, return receipt requested, to Arnold Broadcasting
Company, Inc., P.O. Box 830, 803 West Main, Sterling, Colorado 80751.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: ? Although Arnold Broadcasting submitted a timely response to the
    June 7, 1999 NAL, the former Compliance and Information Bureau did
    not actually receive that response until August 4, 1999. A
    Forfeiture Order was adopted on July 30, 1999 in the mistaken belief
    that Arnold Broadcasting was in default. The default Forfeiture
    Order was set aside on August 5, 1999. The current Forfeiture Order
    addresses the issues raised in Arnold Broadcasting's response to the
    NAL.

[^2]: Requests for payment under installment plans should be mailed to:
    Chief, Credit & Debt Management Center, 445 12th Street, S.W.,
    Washington, D.C. 20554. Payment of the forfeiture in installments
    may be considered as a separate matter in accordance with Section
    1.1914 of the Rules, 47 C.F.R. § 1.1914. Contact Chief, Credit &
    Debt Management Center, at (202) 418-1995, for more information on
    payments by credit card.