Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-04-IH-0492       |
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| **Leighton Enterprises, Inc.**   | ) | NAL/Acct. No. 200532080128   |
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| Licensee of Station KBOT(FM),    | * | FRN 0002589216               |
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| Pelican Rapids, Minnesota        | * | Facility ID No. 51059        |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: March 17, 2005 Released: March 17, 2005**

By the Chief, Investigations and Hearings Division:

I. INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Leighton Enterprises, Inc. ("Leighton"), licensee of Station
KBOT(FM), Pelican Rapids, Minnesota, has apparently violated section
73.1201 of the Commission's rules[^1] by willfully and repeatedly
broadcasting station identification announcements that did not contain
the required call sign followed by the station's community of license.
Based on our review of the facts and circumstances in this case, we
conclude that Leighton is apparently liable for a forfeiture in the
amount of \$5,000.

II\. BACKGROUND

2\. On September 1, 2004, the Enforcement Bureau received a complaint
alleging that Station KBOT(FM) had violated section 73.1201 of the
Commission's rules. Specifically, the complainant alleges that since
September 2003, Station KBOT(FM) changed its station identification
announcements by substituting a promotional message for the station's
call letters and community of license. The complainant states that she
notified Leighton of its failure to comply with section 73.1201, but
that the station did not revise its announcements.

3\. In response to an Enforcement Bureau letter of inquiry,[^2] Leighton
states that, due to an inadvertent programming error, since September
22, 2004, there have been many instances in which Station KBOT(FM)
broadcast station identification announcements that did not contain the
call letters and its community of license.[^3] Leighton concedes that,
with the exception of a three-hour window of live programming each day,
all of its station identification announcements were deficient from
September 22 until December 7, 2004, when Leighton corrected its station
identification announcement to include the required call letters and the
community of license. Leighton states that since that date, Station
KBOT(FM) has broadcast station identification announcements that comply
with section 73.1201 at all times. Leighton does not acknowledge any
station identification problems prior to September 2004. Leighton
provided a compact disc recording of the corrected announcement.

III\. DISCUSSION

III. 4\. Section 73.1201 of the Commission's rules provides that the
     "\[o\]fficial station identification shall consist of the station's
     call letters immediately followed by the community or communities
     specified in its license as the station's location" and shall be
     broadcast at the beginning and ending of each time of operation,
     and hourly as close to the hour as feasible.[^4] Leighton
     acknowledges that it broadcast deficient station identification
     announcements 21 times per day over a 10-week period. Therefore, we
     find that Leighton apparently violated section 73.1201 of the
     Commission's rules by willfully and repeatedly broadcasting station
     identification announcements that did not include the station's
     call letters immediately followed by the station's community of
     license.

5\. Section 503(b) of the Communications Act of 1934, as amended (the
"Act")[^5] and section 1.80(a) of the Commission's rules[^6] provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Commission's rules shall be liable for a
forfeiture penalty.[^7] Based upon the evidence before us, we find that
Leighton willfully and repeatedly broadcast station identification
announcements in apparent violation of section 73.1201 of the
Commission's rules. Section 1.80 of the Commission's rules sets a base
forfeiture amount of \$1,000 for the failure to broadcast a compliant
station identification announcement. In assessing a monetary forfeiture,
we take into account the statutory factors set forth in Section
503(b)(2)(D) of the Act.[^8] Those factors 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 such other matters as justice may require.[^9] We
note that, by Leighton's admission, the violations occurred 21 times per
day over a 10-week period and did not terminate until December 7, 2004,
after Leighton received the Enforcement Bureau's Letter of Inquiry.
Taking into account this fact, and the fact that the station management
had been notified of its deficient announcements well before it ceased
the violations, we find that under the Commission's case law, the
violation justifies an upward adjustment of \$4,000, for a total
proposed forfeiture of \$5,000.[^10]

6\. We note Leighton's corrective actions to revise its station
identification announcements in order to comply with section 73.1201. As
the Commission has held previously, however, a licensee's
post-investigation remedial efforts are irrelevant to our consideration
of the appropriate penalty in a forfeiture proceeding.[^11]

IV\. ORDERING CLAUSES

7\. 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,[^12] Leighton Enterprises, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of \$5,000 for willfully and repeatedly broadcasting station
identification announcements in violation of section 73.1201 of the
Commission's rules.

8\. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission\'s rules,[^13] within thirty days of this NOTICE OF APPARENT
LIABILITY, Leighton Enterprises, Inc., SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.

9\. 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, Illinois 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and account
number 1165259.

10\. The response, if any, must be mailed to William H. Davenport,
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C330,
Washington, D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. referenced
above.

11\. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the respondent
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 respondent'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.

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

13\. IT IS FURTHER ORDERED that the complaint filed on September 1,
2004, IS GRANTED to the extent set forth herein and IS OTHERWISE
DENIED.[^15]

14\. IT IS FURTHER ORDERED that this Notice of Apparent Liability for
Forfeiture shall be sent, by Certified Mail, Return Receipt Requested,
and U.S. First Class mail, to John Wells King, Esq., Garvey Schubert
Barer, 5^th^ Floor, Flour Mill Building, 1000 Potomac Street, N.W.,
Washington, D.C. 20007 and by U.S. First Class mail to Leighton
Enterprises, Inc., P.O. Box 1458, St. Cloud, Minnesota 56302.

FEDERAL COMMUNICATIONS COMMISSION

William H. Davenport

Chief, Investigations and Hearings Division

[^1]: 47 C.F.R. § 73.1201.

[^2]: Letter from William D. Freedman, Deputy Chief, Investigations and
    Hearings Division, Enforcement Bureau, to Leighton Enterprises,
    Inc., dated November 22, 2004.

[^3]: Letter from John J. Sowada, President, Leighton Enterprises, Inc.,
    to William D. Freedman, Deputy Chief, Investigations and Hearings
    Division, Enforcement Bureau, dated December 14, 2004.

[^4]: 47 C.F.R. § 73.1201.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 U.S.C. § 1.80(a).

[^7]: 47 U.S.C. §503(b)(1)(B); 47 C.F.R. §1.80(a)(1). Section 312(f)(1)
    of the Act defines willful as "the conscious and deliberate
    commission or omission of \[any\] act, irrespective of any intent to
    violate" the law. 47 U.S.C. §312(f)(1). The legislative history to
    section 312(f)(1) of the Act clarifies that this definition of
    willful applies to both sections 312 and 503(b) of the Act, H.R.
    Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982), and the Commission
    has so interpreted the term in the section 503(b) context. *See,
    e.g., Application for Review of Southern California Broadcasting
    Co.,* Memorandum Opinion and Order, 6 FCC Rd 4387, 4388 (1991)
    ("*Southern California Broadcasting Co.*"). The Commission may also
    assess a forfeiture for violations that are merely repeated, and not
    willful. *See, e.g.,* *Callais Cablevision, Inc., Grand Isle,
    Louisiana*, Notice of Apparent Liability for Monetary Forfeiture, 16
    FCC Rcd 1359 (2001) (issuing a Notice of Apparent Liability for,
    *inter alia*, a cable television operator's repeated signal
    leakage). "Repeated" merely means that the act was committed or
    omitted more than once, or lasts more than one day. *Southern
    California Broadcasting Co.,* 6 FCC Rcd at 4388, ¶ 5; *Callais
    Cablevision, Inc.,* 16 FCC Rcd at 1362, ¶ 9.

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 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, 17100-01
    (1997) ("*Forfeiture Policy Statement*")*, recon. denied,* 15 FCC
    Rcd. 303 (1999).

[^10]: *See Bay Broad. Corp.*, 15 FCC Rcd 9387 (2000) (proposing \$1,500
    forfeiture for failure to broadcast sufficient station
    identification announcements for two days.) (forfeiture paid).

[^11]: *See, e.g.*, *AT&T Wireless Services, Inc.*, Memorandum Opinion
    and Order, 17 FCC Rcd 21866, 21871 (2002); *Mid-Missouri
    Broadcasting, Inc.*, 19 FCC Rcd 22900 (2004).

[^12]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^13]: 47 C.F.R. § 1.80.

[^14]: *See* 47 C.F.R. § 1.1914.

[^15]: For purposes of the forfeiture proceeding initiated by this NAL,
    Leighton Enterprises, Inc. shall be the only party.