**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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In the Matter of )

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Bronco Broadcasting Co., Inc., )

St. Charles, Missouri ) NAL/Acct. No. 815KC0001

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**FORFEITURE ORDER**

**Released:** May 8, 1998

By the Compliance and Information Bureau:

1\. Before the Bureau is a Notice of Apparent Liability (\"NAL\"),
issued on December 3, 1997, to Bronco Broadcasting Co., Inc. (Bronco)
and the response thereto, filed by their attorney, Michael Glaser, on
February 4, 1998, requesting that the Bureau dismiss the NAL. The NAL
proposed imposition of a forfeiture in the amount of \$14,000, pursuant
to Section 503(b) of the Communications Act of 1934, as amended (the
Act), 47 U.S.C. §503 (b), against Bronco, licensee of radio station KIRL
in St. Charles, Missouri, for willful and repeated violations of 47
C.F.R. § 73.62(b)(3) and the terms of the KIRL station authorization,
namely failure to maintain the night time directional pattern within the
prescribed field intensity limits at the monitoring points specified in
the KIRL station authorization. For the reasons noted below, we reduce
the forfeiture amount to \$7,000.

2\. We note that the response before us was filed untimely. Respondent
had initially requested, and was granted, a generous extension of the
due date from January 2 to January 26, 1998. However, a second request
for an additional extension was orally denied. The response to the NAL,
however, was not filed until February 4, 1998, more than a week past the
January 26th due date. In this case, we will consider the licensee\'s
response, however, the Bureau will consider this Order to be notice to
the public that late responses to NALs will no longer be accepted or
considered by the Bureau.

**BACKGROUND**

3\. On July 9, 1985, Bronco Broadcasting Co., Inc., as licensee of radio
station KIRL, St. Charles, Missouri, was issued a Notice of Violation by
the Commission\'s Kansas City Field Office for violation of 47 C.F.R. §§
73.49 and 73.61(a), after a June 5, 1985 inspection of KIRL by FCC
Engineer G. Michael Moffitt found violations involving AM tower fencing
and excessive field intensity.

4\. On April 9, 1992, Bronco Broadcasting Co., Inc., as licensee of
radio station KIRL, St. Charles, Missouri, was issued a Notice of
Violation by the Commission\'s Kansas City Field Office for violation of
47 C.F.R. §§ 73.49 and 73.3526(a)(9), after an April 1, 1992 inspection
of KIRL by FCC Engineer Ronald Ramage found violations pertaining to AM
tower fencing and the stations public inspection file.

5\. On November 6, 1996, broadcast radio station KIRL, St. Charles,
Missouri was inspected by FCC Agents Ronald Ramage and John Roneker of
the Compliance and Information Bureau\'s (CIB) Kansas City Field Office.
This inspection found violations pertaining to station logs, metering
and AM directional parameters (47 C.F.R. §§ 73.1225, 73.1226, 73.1410
and 73.62). No field intensity metering was available to inspect the
field intensity at designated monitoring points, so these were not
checked during this inspection. A Notice of Violation was issued to
Bronco for these violations on November 12, 1996. In response to this
Notice, the licensee submitted a reply which included copies of the
station logs for the period September 1 - November 6, 1996, which were
unavailable at the time of the November 6, 1996 inspection. These logs
documented out-of-tolerance AM directional parameters during this entire
period.

6\. On December 20, 1996, the CIB\'s Kansas City Field Office issued
Bronco a letter notifying the licensee that it must maintain certain
technical records showing that it resolved the out-of-tolerance
nighttime directional operation. The Notice, issued in accordance with
47 C.F.R. § 73.1835, specified that the licensee was required to follow
a specified program consisting of regularly logging of field strength
readings and correcting the station\'s power output as needed. This log
was to be submitted to the Kansas City Field Office monthly, along with
a status report and technical records which documented the repairs being
made to bring KIRL\'s nighttime directional operation back into
compliance with the KIRL station authorization. Once all of the repairs
were completed, the Notice required the licensee to conduct proof of
performance measurements on the nighttime operation in accordance with
47 C.F.R. §§ 73.61 and 73.154.

7\. On January 16, 1997, the Kansas City Field Office issued Bronco\'s
attorney a letter notifying Bronco of their failure to respond to the
Notice of Violation, dated December 11, 1997, and to notify Bronco of
their failure to provide the requested monthly status reports and
technical records as specified in the Notice dated December 20, 1997. In
response to this letter, Bronco\'s attorney submitted a reply on March
6, 1997, in which he stated that \"Bronco apologizes to the Commission
for the delay in submitting its status report with the technical
records, as required by your December 20, 1996 Notification, and wishes
to assure the Commission that it will carefully observe the
Commission\'s Notification requirements with respect to the status
report and the special technical records until Station KIRL\'s
night-time operation is in full compliance with its station
authorization.\" Despite this assurance, Bronco has failed to provide
any status reports on its repairs, if any, made to the station since the
March 6, 1997, letter, up to and including the date of this action.
Bronco did submit monthly measurement data, except for the period of
January 20 - March 1, 1997 when KIRL was not operating at night.

8\. On January 30, 1997, the Commission\'s Mass Media Bureau issued
Bronco Special Temporary Authority (STA) to operate with parameters at
variance. This STA clearly stated that the station was to maintain
monitoring points within authorized limits.

9\. As a result of the Commission\'s Notification of December 20, 1997,
Bronco\'s Engineer, James Mitchell, conducted weekly measurements of the
KIRL nighttime directional pattern. This measurement data was submitted
through Bronco\'s attorney to the Kansas City Field Office. The data Mr.
Mitchell submitted showed that Bronco had repeatedly operated with an
out-of-tolerance nighttime directional pattern as measured on thirty two
separate dates during the period December 20, 1996 through November 3,
1997, in violation of 47 C.F.R. § 73.62(b) and the terms of the KIRL
station authorization. Specifically, the dates of each violation were:
December 20, 23, 27 and 30, 1996, January 4, 11 and 20, 1997, March 1
and 20, 1997, April 14 and 23, 1997, May 19 and 27, 1997, June 2, 17, 24
and 30, 1997, July 7, 14 and 21, 1997, August 4, 11 and 18, 1997,
September 2, 8, 15 and 29, 1997, October 6, 13, 20 and 27, 1997 and
November 3, 1997, which is the last date on which data was submitted. On
each of these occasions, the measured field intensity at one or more
points exceeded the maximum field intensity authorized by the KIRL
station license. During the period of December 20, 1996 through November
3, 1997, a total of 43 separate data sheets were submitted documenting
the measurements taken by Mr. Mitchell.

**DISCUSSION**

10\. In response to the NAL, the respondent makes several claims. First,
respondent claims that the violation was not willful, but was merely
technical. Respondent defines his term, \"technical violation\" as
relating to constant weather and flooding problems and unintentional
errors by the station\'s engineer. Second, respondent maintains that the
\$14,000 forfeiture amount is excessive in relation to the size and
resources of Bronco. Third, respondent claims a \"long history of
compliance\" on behalf of Bronco, notwithstanding the recent flooding
problems experienced at this nighttime antenna site. Fourth, respondent
contends that construction activity by the site\'s owner in his attempts
to alleviate the flooding problems have exacerbated nighttime antenna\'s
sensitivity to weather changes. Fifth, that respondent states that it
has \"spent considerable time and energy attempting to correct problems
with the night time site,\" including, obtaining an STA from the
Commission, voluntary shut downs of the nighttime operation, inspection
and adjustment by a communication engineering consultant, investigation
into a new ground system, and the submission of monthly reports as
required by the December 20, 1996, Notice of Violation (NOV). Sixth,
respondent also asserts that the age and health of the station engineer
have caused him to make mistakes and omissions in the operation of the
station. Finally, respondent argues that past violations by Bronco
should not be considered for various reasons.

11\. We have carefully evaluated the information submitted in connection
with Bronco\'s response and conclude that, based on the discussion
below, Bronco is liable for a forfeiture for willful and repeated
violations of Section 73.62(b)(3) of the Commission\'s rules, 47 C.F.R.
§ 73.62(b)(3). As an initial matter, we note that, notwithstanding
respondent\'s misunderstanding regarding the term, the violation was
indeed willful.[^1] Furthermore, in reply to both respondent\'s
contentions that external forces have exacerbated the weather
sensitivity of the equipment, and that the station engineer was unable
to understand the weekly measurement data, we remind respondent that
responsibility for compliance with the terms of KIRL\'s license rests
solely and exclusively with the licensee. Additionally, regarding the
station engineer\'s ability to understand the weekly measurements, the
form used had the maximum allowable readings clearly marked, was
available to Bronco\'s attorney for review before its submission, and,
any such review would have identified the out-of-tolerance conditions.
Moreover, we note that the written monthly reports required of Bronco,
in accordance with Section 73.1835 of the rules, 47 C.F.R. §73.1835,
were to address the specific and ongoing problem that KIRL was
experiencing with the nighttime directional operation of the station.
The reports were required only until such time as the problem was
corrected. To date, the problem has not been corrected, and the licensee
has failed to provide written monthly status reports. Attempts by
Bronco\'s attorney to provide verbal status reports were unacceptable
and the licensee was instructed to submit its reports in writing, as
required. In addition,

Bronco, as licensee of KIRL, was also required to conduct a proof of
performance on the directional operation prior to commencing full time
operation. This proof of performance was never conducted, and Bronco
continues to ignore the requirement. Claims by the respondent, that a
communication engineering consultant had advised that no repairs were
necessary, are not supported by any documents from the consultant, and,
regardless, assessments made by a paid consultant in no way mitigate or
relieve the responsibility of the licensee.

12\. Based on the violations, the Bureau issued the forfeiture penalty
pursuant to Section 503 of the Act, 47 U.S.C. § 503, and Section 1.80 of
the rules, 47 C.F.R. §1.80. In assessing the forfeiture amount, the
Bureau followed the forfeiture standards established in Section 503 of
the Act and the Commission\'s [Policy Statement, Standards for Assessing
Forfeitures, (Policy Statement)]{.underline}, 12 FCC Rcd 17087 (1997).
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.
47 U.S.C. §503(b)(2)(D),

13\. Respondent only presents information concerning two mitigating
factors pertaining to the forfeiture amount. First, respondent claims
that Bronco has a long history of compliance. However, respondent\'s own
records contradict this assertion by listing the licensee\'s past
history of rule violations. The contention that the 1985 violation bears
no relation to current operating practices and that a station log
violation is minor and, therefore, should not be considered are
insupportable. Both violations were correctly considered as part of
Bronco\'s history as the licensee of radio station KIRL. Overall,
Bronco\'s history demonstrates a lack of compliance. In regards to
respondent\'s rationale for mitigation of the amount, inability to pay,
respondent failed to fully document this claim, supplying only balance
sheets from 1997. The NAL clearly states in footnote number two that
\"\[c\]laims of inability to pay should be supported by tax returns or
other financial statements prepared under generally accepted accounting
procedures for the most recent three year period.\" Respondent only
provided financial documents for a period covering one year. Therefore,
the documentary evidence needed to support an inability to pay claim is
incomplete. However, it appears from the information before us that this
is a small business. Based on all factors, including the size of the
business, we reduce the forfeiture amount to \$7,000.

14\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to 47 U.S.C. §503(b),
and Section 1.80 of the Commission\'s Rules, 47 C.F.R. §1.80, Bronco
Broadcasting Co., Inc., **IS LIABLE FOR A MONETARY FORFEITURE** in the
amount of \$7,000 for willful and repeated violations of Section
73.62(b)(3) of the Commission\'s rules, 47 C.F.R. § 73.62(b)(3).

15\. **IT IS FURTHER ORDERED,** pursuant to Section 1.80(f) of the
Commission\'s Rules, 47 C.F.R. §1.80(f), that Bronco Broadcasting Co.,
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, money order or credit card, with the appropriate
documentation, made payable to the Federal Communications
Commission.[^2] The remittance should be marked NAL/Acct. No. 815KC0001,
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, 47 C.F.R.
§1.106 of the Rules, or Applications for Review pursuant to Section
1.115, 47 C.F.R. §1.115, should be sent to:

Federal Communications Commission

Chief, Compliance Division

Compliance and Information Bureau

1919 M Street, N.W.

Washington, D.C. 20554

ATTN: Mail Stop 1500E3-MSL

16\. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent
certified mail, return receipt requested, to Bronco Broadcasting Co.,
Inc., 3713 Hwy 94 N., St. Charles, Missouri, 63301 and that a copy of
this notice shall also be sent to Bronco\'s attorney.

**FEDERAL COMMUNICATIONS COMMISSION**

Pamera D. Hairston

Chief, Compliance Division

Compliance and Information Bureau

[^1]:     ^?^Section 312 (f)(1), which applies to Section 503(b),
    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]{.underline} [Southern
    California Broadcasting Co.]{.underline}, 6 FCC Rcd 4387 (1991).

[^2]:     ^?^ Requests for payment under installment plans should be
    mailed to: Chief, Billings and Collections, Mail Stop 1110A2, 1919 M
    Street, N.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 Commission\'s Rules. Contact Chief,
    Billings and Collections, at (202) 418-1995 for more information on
    payments by credit card.