**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Application of             | *  | Facility ID No. 41857        |
|                                  | *) |                              |
| **Mid-Coast Radio Project,       | ** | NAL/Acct. No. MB-20091810002 |
| Inc.**                           |    |                              |
|                                  | *  | FRN: 0002540631              |
| For Renewal of License for       | *) |                              |
|                                  | ** | File No. BRED-20050125AHW    |
| Noncommercial Educational        |    |                              |
|                                  | *  |                              |
| Station KKFI(FM)                 | *) |                              |
|                                  | ** |                              |
| Kansas City, Missouri            |    |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: February 18, 2009 Released: February 19, 2009**

By the Chief, Media Bureau:

**I. INTRODUCTION**

1.  The Commission has before it the captioned application (the
    "Application") of Mid-Coast Radio Project, Inc. (the "Licensee"),
    for renewal of its license for noncommercial educational ("NCE")
    Station KKFI(FM), Kansas City, Missouri (the "Station"). The
    Commission also has before it informal objections filed against the
    Application by Dee Schademann on September 21, 2005 (the "Schademann
    Objection"), and by Joshua C. Powers on September 26, 2005 (the
    "Powers Objection"). In this *Memorandum Opinion and Order and
    Notice of Apparent Liability for Forfeiture* ("*NAL*") issued
    pursuant to Sections 309(k) and 503(b) of the Communications Act of
    1934, as amended (the "Act"), and Section 1.80 of the Commission's
    Rules (the "Rules"),[^1] by the Chief, Media Bureau by authority
    delegated under Section 0.283 of the Rules,[^2] we find that the
    Licensee apparently willfully violated Section 73.3539 of the
    Rules,[^3] by failing to timely file a license renewal application
    for the Station. Based upon our review of the facts and
    circumstances before us, we deny the Schademann Objection and the
    Powers Objection, we conclude that the Licensee is apparently liable
    for a monetary forfeiture in the amount of three thousand dollars
    (\$3,000), and we grant the Station's Application.

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II. **BACKGROUND**

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2.  Section 73.3539(a) of the Rules requires that applications for
    renewal of license for broadcast stations must be filed "not later
    than the first day of the fourth full calendar month prior to the
    expiration date of the license sought to be renewed."[^4] An
    application for renewal of the Station's license should have been
    filed by October 1, 2004, four months prior to the Station's license
    expiration date (February 1, 2005),[^5] but was not. In fact, the
    Licensee did not file the Station's Application until January 25,
    2005, one week before the license expiration date.

3.  The Schademann Objection states: "\[I\]t has been made clear to me
    \[as the Station's Office Administrator for a period of two years\]
    that \[the Station is\] incapable of serving the public interest as
    stated in KKFI's Mission, Articles of Incorporation and By-laws.
    Additionally, and more importantly, \[the Station has\] violated
    several FCC rules and regulations, including obscenity and reporting
    regulations."[^6] Despite this reference to obscenity, the
    Schademann Objection fails to describe any instance in which the
    Station may have aired obscene programming. Although much of the
    Schademann Objection is devoted to issues not within the
    Commission's jurisdiction, it makes the following claims with
    respect to alleged violations of the Rules: (a) the Station's
    Emergency Alert System ("EAS") equipment does not work properly and
    the Station has not maintained required EAS records;[^7] (b) tower
    light outages have not been reported in a timely manner;[^8] and (c)
    the Station failed to make public announcements concerning its
    license renewal application.[^9] Other portions of the Schademann
    Objection are based on erroneous interpretations of our Rules and/or
    fail to provide sufficient information to present a substantial and
    material question of fact as to whether a grant of the Application
    would serve the public interest.[^10]

4.  The Powers Objection was filed by a former General Manager of the
    Station and challenges the Station's management by the Licensee's
    Board of Directors.[^11] As with the Schademann Objection, much of
    the Powers Objection deals with matters that are not within the
    Commission's jurisdiction. The Powers Objection claims that if the
    Commission conducted an inspection of the Station, "I can guarantee
    that violations in the areas of the public file, the station log,
    EAS log, station ID, lack of board certified programmers, indecency
    and obscenity and a host of other applicable issues would be
    found."[^12]

5.  The Commission conducted an inspection of the Station on May
    22, 2007. The inspection revealed no EAS violations, no transmitter
    log violations and no tower lighting violations. The inspection
    found only three violations of the Rules, two of which were public
    inspection file violations that were resolved during the
    inspection: (a) the transmitter efficiency factor was not
    available;[^13] (b) the current ownership report for the Station was
    not in the public inspection file;[^14] and (c) although the
    announcement concerning the Station's Application was in the public
    inspection file, no dates or times of those broadcasts were attached
    to the announcement.[^15] The inspector issued a verbal admonition
    for these violations to the General Manager of the Station at the
    conclusion of the inspection.

**III. DISCUSSION**

6.  *Proposed Forfeiture.* In this case, the Licensee failed to timely
    file the Application as required by Section 73.3539(a) of the Rules.
    Accordingly, we hereby issue this *NAL* pursuant to Section
    503(b)(1)(B) of the Act. Under that provision, any person who is
    determined by the Commission to have willfully or repeatedly failed
    to comply with any provision of the Act or any rule, regulation, or
    order issued by the Commission shall be liable to the United States
    for a forfeiture penalty.[^16] 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.[^17]
    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,[^18] and the Commission has so interpreted the
    term in the Section 503(b) context.[^19] Section 312(f)(2) of the
    Act provides that "\[t\]he term 'repeated,' when used with reference
    to the commission or omission of any act, means the commission or
    omission of such act more than once or, if such commission or
    omission is continuous, for more than one day."[^20]

7.  The Commission\'s *Forfeiture Policy Statement* and Section
    1.80(b)(4) of the Rules establish a base forfeiture amount of
    \$3,000 for the failure to file a required form.[^21] In determining
    the appropriate forfeiture amount, we may adjust the base amount
    upward or downward by considering factors enumerated in Section
    503(b)(2)(D) of the Act, including "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."[^22]

8.  In this case, the Licensee filed the Application nearly four months
    after it was due. Taking into consideration the facts as described
    above and all of the factors required by Section 503(b)(2)(D) of the
    Act and the *Forfeiture Policy Statement*, we propose a forfeiture
    for the full \$3,000 amount for the failure to timely file the
    Application.

9.  *License Renewal Application.* In evaluating an application for
    license renewal, the Commission's decision is governed by Section
    309(k) of the Act.[^23] That section provides that if, upon
    consideration of the application and pleadings, we find that (1) the
    station has served the public interest, convenience, and
    necessity; (2) there have been no serious violations of the Act or
    the Rules; and (3) there have been no other violations which, taken
    together, constitute a pattern of abuse, we are to grant the renewal
    application.[^24] If, however, the licensee fails to meet that
    standard, the Commission may deny the application -- after notice
    and opportunity for a hearing under Section 309(e) of the Act -- or
    grant the application "on terms and conditions that are appropriate,
    including a renewal for a term less than the maximum otherwise
    permitted."[^25]

10. In light of the facts stated above, we deny the Schademann Objection
    and the Powers Objection. The Commission's inspection of the Station
    on May 22, 2007 showed that neither the Schademann Objection nor the
    Powers Objection presents a substantial and material question of
    fact as to whether grant of the Station's Application would serve
    the public interest. Rather, the inspection revealed two public
    inspection rule violations that were resolved during the course of
    the inspection and a transmitter power calculation violation that
    was unrelated to any claim made by Ms. Schademann or Mr. Powers.
    These violations were addressed through a verbal admonition to the
    Station's General Manager.

11. We find that the Licensee's violations of Sections 73.267(c),
    73.3527(e) and 73.3539 of the Rules do not constitute "serious
    violations" warranting designation for evidentiary hearing.
    Moreover, we find no evidence of violations that, when considered
    together, evidence a pattern of abuse.[^26] Further, we find that
    the Station served the public interest, convenience, and necessity
    during the subject license term. We will therefore grant the
    Application.

**IV. ORDERING CLAUSES**

12. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Section 1.80 of the
    Commission's Rules, that Mid-Coast Radio Project, Inc. is hereby
    NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
    three thousand dollars (\$3,000) for its apparent willful violation
    of Section 73.3539 of the Commission's Rules.

13. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    Rules, that, within thirty (30) days of the release date of this
    *NAL,* Mid-Coast Radio Project, Inc. SHALL PAY the full amount of
    the proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

14. Payment of the proposed 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
    Federal Communications Commission, at P.O. Box 358340, Pittsburgh,
    Pennsylvania 15251-8340. Payment by overnight mail may be sent to
    Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
    Pennsylvania 15251. Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account number
    911-6106.

15. The response, if any, must be mailed to Office of the Secretary,
    Federal Communications Commission, 445 12^th^ Street, S.W.,
    Washington D.C. 20554, ATTN: Peter H. Doyle, Chief, Audio Division,
    Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.

16. 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.

17. Requests for full payment of the forfeiture proposed in this *NAL*
    under the installment plan should be sent to: Associate Managing
    Director-Financial Operations, 445 12th Street, S.W., Room 1-A625,
    Washington, D.C. 20554.[^27]

18. IT IS FURTHER ORDERED that the informal objections filed by Dee
    Schademann on September 21, 2005, and by Joshua C. Powers on
    September 26, 2005, ARE DENIED.

19. IT IS FURTHER ORDERED, pursuant to Section 309(k) of the
    Communications Act of 1934, as amended, that the license renewal
    application of Mid-Coast Radio Project, Inc. for Station KKFI(FM),
    Kansas City, Missouri (File No. BRED-20050125AHW) IS GRANTED.

20. IT IS FURTHER ORDERED that a copy of this *NAL* shall be sent, by
    First Class and Certified Mail, Return Receipt Requested, to
    Mid-Coast Radio Project, Inc., P.O. Box 32250, Kansas City, MO
    64171, to Joshua C. Powers, 630 Ohio Street, Lawrence, Kansas 66044,
    to Dee Schademann, 5412 N.E. Barnes Avenue, Kansas City, MO 64119,
    and to Melodie A. Virtue, Esq., Garvey Schubert Barer, Fifth Floor,
    1000 Potomac Street, N.W., Washington, DC 20007-3501.

FEDERAL COMMUNICATIONS COMMISSION

Monica Shah Desai

Chief, Media Bureau

[^1]: 47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80.

[^2]: *See* 47 C.F.R. § 0.283.

[^3]: *See* 47 C.F.R. § 73.3539.

[^4]: 47 C.F.R. § 73.3539(a).

[^5]: *See* 47 C.F.R. §§ 73.1020, 73.3539(a).

[^6]: Schademann Objection at 1.

[^7]: *Id*.; *see* 47 C.F.R. §§ 11.35 (describing requirements for
    operational readiness of EAS equipment) and 73.1820(a)(1)(iii)
    (describing requirement to maintain a log of each test and
    activation of the EAS system).

[^8]: Schademann Objection at 2; *see* 47 C.F.R. § 17.48 (describing
    requirements to notify the Federal Aviation Administration of any
    observed or known extinguishment or malfunction of tower lights).

[^9]: Schademann Objection at 2; *see* 47 C.F.R. § 73.3580(d)
    (describing requirements to broadcast pre-filing and post-filing
    announcements of a broadcast station's license renewal application).

[^10]: The Schademann Objection claims that the Station failed to
    maintain a file of listener complaints. Schademann Objection at 2.
    However, 47 C.F.R. § 73.3527 (unlike § 73.3526, the public
    inspection file rule applicable to commercial radio stations) does
    not require NCE stations to maintain a file of listener complaints.
    The Schademann Objection also cites certain practices that it
    categorizes as "playola/plugola", but it fails to provide any
    specific information, claiming that "calls-to-action and
    self-promotion by various programmers and their guests . . . are too
    numerous to mention but can be heard on any given day." Schademann
    Objection at 2; *see* 47 C.F.R. § 73.1212 (sponsorship
    identification requirements). This portion of the Schademann
    Objection not only appears to involve a misinterpretation of our
    Rules, but also lacks sufficient information to present a
    substantial and material question of fact.

[^11]: Powers Objection at 1 ("I witnessed what I consider to be
    egregious examples of misconduct, poor leadership and an overall
    disregard for the stated mission of the station.").

[^12]: *Id*. at 4. The Powers Objection does cite one specific instance
    of potentially indecent language aired on the Station at 8:15 a.m.,
    but fails to provide a date and fails to provide sufficient
    information to enable us to make a judgment about what the Station
    broadcast in this instance and its context. Powers Objection at 2.

[^13]: *See* 47 C.F.R. § 73.267(c).

[^14]: *See* 47 C.F.R. § 73.3527(e)(4). The report was printed and
    placed in the file during the inspection.

[^15]: *See* 47 C.F.R. § 73.3527(e)(10). The Station's "traffic" logs
    showed the dates and times that the announcements were aired.

[^16]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. 1.80(a)(1).

[^17]: 47 U.S.C. § 312(f)(1).

[^18]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^19]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^20]: 47 U.S.C. § 312(f)(2).

[^21]: *See Forfeiture Policy Statement and Amendment of Section 1.80(b)
    of the Rules to Incorporate the Forfeiture Guidelines,* Report and
    Order, 12 FCC Rcd 17087, 17113-15 (1997) (\"*Forfeiture Policy
    Statement*\"), *recon. denied*, 15 FCC Rcd 303 (1999); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section I.

[^22]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement,*
    12 FCC Rcd at 17100; 47 C.F.R. § 1.80(b)(4).

[^23]: 47 U.S.C. § 309(k).

[^24]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read
    as described by Section 204(a) of the Telecommunications Act of
    1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^25]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^26]: For example, we do not find here that the Licensee\'s Station
    operation \"was conducted in an exceedingly careless, inept and
    negligent manner and that the Licensee is either incapable of
    correcting or unwilling to correct the operating deficiencies.\"
    *See Heart of the Black Hills Stations*, Memorandum Opinion and
    Order, 32 FCC 2d 196, 198 (1971). Nor do we find on the record here
    that \"the number, nature and extent\" of the violations indicate
    that \"the licensee cannot be relied upon to operate \[the station\]
    in the future in accordance with the requirements of its licenses
    and the Commission\'s Rules.\" *Heart of the Black Hills Stations*,
    32 FCC 2d at 200. *See also Center for Study and Application of
    Black Economic Development*, Hearing Designation Order, 6 FCC Rcd
    4622 (1991), *Calvary Educational Broadcasting Network, Inc*.,
    Hearing Designation Order, 7 FCC Rcd 4037 (1992).

[^27]: *See* 47 C.F.R. § 1.1914.