**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+------------------------------------+---------------------------------+
| In the Matter of                   | )                               |
|                                    |                                 |
| Pilgrim Communications, Inc.       | )                               |
|                                    |                                 |
| Licensee of Station KSKE(AM)       | ) File Number: EB-01-DV-044     |
|                                    |                                 |
| Vail, Colorado                     | )                               |
|                                    |                                 |
| Facility ID \# 16272               | ) NAL/Acct. No. 200332800004    |
|                                    |                                 |
|                                    | ) FRN 0006-1472-19              |
|                                    |                                 |
|                                    | )                               |
+------------------------------------+---------------------------------+

**FORFEITURE ORDER**

**Adopted: May 17, 2004 Released: May 19, 2004**

By the Chief, Enforcement Bureau:

# inTroduction

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of eleven thousand dollars (\$11,000) to
    Pilgrim Communications, Inc. (\"Pilgrim\"), licensee of AM radio
    station KSKE in Vail, Colorado, for willful and repeated violation
    of Section 73.1125(a) of the Commission\'s Rules ("Rules"), and
    willful violation of Sections 73.1560(a) and 73.1745(a) of the
    Rules.[^1] The noted violations involve Pilgrim's failure to
    maintain a main studio for station KSKE, its failure to reduce
    KSKE's power at sunset to the nighttime level required by the
    station authorization and its exceeding KSKE's authorized nighttime
    power level.

2.  On November 20, 2002, the Commission's Denver, Colorado, Field
    Office ("Denver Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Pilgrim for a forfeiture in the amount of
    eleven thousand dollars (\$11,000).[^2] Pilgrim responded to the
    *NAL* on January 21, 2003, and filed a supplementary response on
    February 20, 2003.

# BACKGROUND 

3.  Radio station KSKE is authorized to operate with 5,000 watts of
    power during daytime hours and 217 watts between sunset and sunrise,
    on frequency 610 kHz. On May 9, 2001, an agent from the Denver
    Office monitored KSKE and took numerous field strength measurements
    at locations near the KSKE transmitter between 7:30 p.m. to 9:00
    p.m. MDT. According to its station authorization, KSKE should have
    switched from daytime to nighttime power at 8:15 p.m. The agent
    observed no change in the field strength from 8:15 p.m. to 9:00 p.m.

4.  On May 10, 2001, the agent attempted to inspect KSKE's main studio.
    The agent went to the location listed for KSKE in the local
    telephone directory, 0210 Edwards Village Blvd., Unit B-206,
    Edwards, Colorado, but found no studio at that location. Employees
    at a business adjacent to Unit B-206 told the agent that they had no
    knowledge of a studio for KSKE in the vicinity. The agent called the
    local telephone number listed for KSKE but found it was
    disconnected. The agent, however, was able to contact Pilgrim's
    corporate office in Indianapolis, Indiana, which informed him that
    Pilgrim had no staff in the Vail area and that Pilgrim's staff at AM
    station KLMO in Longmont, Colorado (approximately 160 miles from
    Vail), remotely controlled KSKE's transmitter.

5.  Additionally, on May 10, 2001, the agent measured KSKE's field
    strength during daylight hours and noted no change from the May 9
    nighttime measurements. The agent then asked the operator at KLMO in
    Longmont to reduce KSKE's power to its authorized nighttime level
    through remote control. When the operator did so, the reduction in
    KSKE's measured field strength confirmed that KSKE had been
    operating with power in excess of its authorized nighttime power on
    May 9, 2001.

6.  On July 30, 2001, the Denver Office issued an Official Notice of
    Violation ("NOV") to Pilgrim for violations at KSKE. In its
    response, Pilgrim stated that, after notification by the FCC, it
    corrected KSKE's power level by correcting an error in the
    programming of the remote power control system. Pilgrim also stated
    that it maintained a studio for KSKE in Edwards, Colorado, and that
    it had a telephone number and one employee there.

7.  On November 20, 2002, the Denver Office issued a *NAL* to Pilgrim
    for a forfeiture in the amount of eleven thousand dollars
    (\$11,000). In its January 21, 2003, response to the *NAL*, Pilgrim
    states that KSKE is "staffed by a full time staff person based at
    the station's studio" in Eagle-Vail, Colorado; that the chief
    operator monitors KSKE's technical operations "on a daily basis,
    using remote computer access"; that it has equipment in place which
    is properly adjusted to assure compliance with the terms of KSKE's
    license; and that it has instituted daily manual checks to insure
    that KSKE's power level is properly adjusted. Pilgrim requests
    cancellation of the proposed forfeiture on the basis of its
    correction of the violations and its inability to pay the proposed
    monetary forfeiture. Pilgrim filed a supplementary response on
    February 20, 2003, containing copies of its 1998, 1999, 2000 and
    2001 federal income tax returns.

# DISCUSSION

8.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^3] Section 1.80 of the Rules,[^4] and *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*, 15 FCC Rcd 303 (1999) ("*Policy
    Statement*"). Section 503(b) of the Act requires that the
    Commission, in examining Pilgrim's response, 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 such other matters as justice
    may require.[^5]

9.  Section 73.1560(a) of the Rules provides that AM stations must be
    maintained as near as practicable to the authorized antenna input
    power. Section 73.1745(a) of the Rules provides, in pertinent part,
    that no broadcast station shall operate with power other than that
    specified and made a part of the license unless otherwise provided
    in Part 73 of the Rules. On May 9, 2001, Pilgrim did not reduce
    KSKE's power at sunset to the level required by the station
    authorization and operated with power exceeding of the authorized
    nighttime level, in willful[^6] violation of Sections 73.1560(a) and
    73.1745(a) of the Rules.

10. Section 73.1125(a) of the Rules requires that every broadcast
    station licensee maintain a main studio for the station. Although
    Pilgrim claimed in its response to the NOV that it maintained a main
    studio in Edwards, Colorado, the FCC agent found that there was no
    main studio at that location. Furthermore, during a telephone
    conversation on May 10, 2001, the staff member at station KLMO who
    remotely controlled KSKE told the agent that Pilgrim formerly had a
    studio in Edwards, Colorado, but had closed it. We conclude that
    Pilgrim had no main studio for station KSKE, in willful and
    repeated[^7] violation of Section 73.1125 of the Rules.

11. To the extent that Pilgrim now complies with Sections 73.1125(a),
    73.1560(a) and 73.1745(a) of the Rules, no mitigation is warranted
    on the basis of Pilgrim's correction of its violations of those
    rules. As the Commission stated in *Seawest Yacht Brokers*, 9 FCC
    Rcd 6099, 6099 (1994), "corrective action taken to come into
    compliance with Commission rules or policy is expected, and does not
    nullify or mitigate any prior forfeitures or violations." [^8]

12. Finally, Pilgrim argues that, if the proposed \$11,000 forfeiture is
    imposed, it will be unable to pay that amount. In support of its
    financial hardship claim, Pilgrim submits copies of its 1998, 1999,
    2000 and 2001 federal income tax returns.[^9] The Commission has
    determined that, in general, a licensee\'s gross revenues are the
    best indicator of its ability to pay a forfeiture.[^10] After
    reviewing the financial data submitted, we find that the proposed
    monetary forfeiture should not be cancelled or reduced. [^11]

13. We have examined Pilgrim's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that
    Pilgrim willfully and repeatedly violated Section 73.1125(a) of the
    Rules and willfully violated Sections 73.1560(a) and 73.1745(a) of
    the Rules and that neither cancellation nor reduction of the
    proposed \$11,000 monetary forfeiture is warranted.

14. Pilgrim's response to the *NAL* indicates that KSKE's main studio
    currently has "a full time staff person" but does not indicate that
    there is any managerial presence at the main studio. To serve the
    needs and interests of the residents of a broadcast station\'s
    community of license, the licensee must maintain a full-time staff
    and managerial presence during normal business hours. [^12]
    Accordingly, we will require, pursuant to Section 308(b) of the
    Act,[^13] that Pilgrim report to the Enforcement Bureau within
    thirty (30) days of the release of this *Order* whether there is a
    managerial presence at KSKE's main studio and, if the report
    indicates that there is a managerial presence, describe the
    managerial presence. Pilgrim's report must be submitted in the form
    of an affidavit signed by an officer or director of the licensee. If
    Pilgrim fails to submit such a report or we find that Pilgrim has
    not come into compliance with our main studio rule, we will consider
    further appropriate enforcement action.

# ORDERING CLAUSES

15. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^14]
    Pilgrim Communications, Inc., **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of eleven thousand dollars (\$11,000) for
    willfully and repeatedly violating Section 73.1125(a) of the Rules
    and willfully violating Sections 73.1560(a) and 73.1745(a) of the
    Rules.

16. **IT IS ALSO ORDERED** that, pursuant Section 308(b) of the Act,
    Pilgrim must submit the report described in Paragraph 14, above,
    within 30 days from the release of this *Order*, to Federal
    Communications Commission, Enforcement Bureau, Spectrum Enforcement
    Division, 445 12th Street, S.W., Room 7-A 820, Washington, D.C.
    20554.

17. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    *Order*. If the forfeiture is not paid within the period specified,
    the case may be referred to the Department of Justice for collection
    pursuant to Section 504(a) of the Act.[^15] Payment may be made by
    mailing a check or similar instrument, payable to the order of the
    Federal Communications Commission, to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should reference NAL/Acct. No. 200332800004 and FRN
    0006-1472-19. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^16]

18. **IT IS FURTHER ORDERED** That a copy of this *Forfeiture* shall be
    sent by certified mail, return receipt requested, to Pilgrim's
    counsel, Marnie K. Sarver, Esq., Wiley, Rein & Fielding LLP, 1776 K
    Street, N.W., Washington, D.C. 20006.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 73.1125(a), 73.1560(a) and 73.1745(a).

[^2]: Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
    200332800004 (Enf. Bur., Denver Office, released November 20, 2002).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 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,' ... 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).

[^7]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The Conference
    Report for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. See H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). See Southern
    California Broadcasting Company, 6 FCC Rcd 4387, 4388 (1991).

[^8]: See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
    (2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
    Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).

[^9]: Since we consider only the three most recent federal income tax
    returns, we are not considering the 1998 return.

[^10]: See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
    (1992).

[^11]: Id. *at 2089 (forfeiture not deemed excessive where it
    represented approximately 2.02 percent of the violator's gross
    revenues);* Hoosier Broadcasting Corporation*, 15 FCC Rcd 8640, 8641
    (Enf. Bur. 2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    revenues);* Afton Communications Corp*., 7 FCC Rcd 6741 (Com. Car.
    Bur. 1992) (forfeiture not deemed excessive where it represented
    approximately 3.9 percent of the violator's gross revenues). We have
    reviewed Pilgrim's financial data in this case and another case
    involving Pilgrim simultaneously and have determined it is able to
    pay both forfeitures.* Pilgrim Communications, Inc., *DA 04-xxxx
    (Enf. Bur., released mm/dd/04).*

[^12]: Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 and
    n.2 (1992), clarified, 7 FCC Rcd 6800 (1992).

[^13]: 47 U.S.C. § 308(b)

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^15]: 47 U.S.C. § 504(a).

[^16]: See 47 C.F.R. § 1.1914.