**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+------------------------------------+---------------------------------+
| In the Matter of                   | )                               |
|                                    |                                 |
| Pilgrim Communications, Inc.       | )                               |
|                                    |                                 |
| Licensee of Station KWYD(AM)       | ) File Number: EB-01-DV-300     |
|                                    |                                 |
| Colorado Springs, Colorado         | )                               |
|                                    |                                 |
| Facility ID \# 51816               | ) NAL/Acct. No. 200332800005    |
|                                    |                                 |
|                                    | ) 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 nineteen thousand dollars (\$19,000) to
    Pilgrim Communications, Inc. (\"Pilgrim\"), licensee of AM radio
    station KWYD in Colorado Springs, Colorado, for willful and repeated
    violation of Sections 11.35, 73.1125(a), 73.1560(a) and 73.1745(a)
    of the Commission\'s Rules (\"Rules\").[^1] The noted violations
    involve Pilgrim's failure to have fully operational Emergency Alert
    System (\"EAS\") equipment, its failure to maintain the requisite
    main studio presence, its failure to reduce KWYD's power at sunset
    to the nighttime level required by the station authorization, its
    failure to increase KWYD's power at sunrise to the daytime level
    required by the station authorization, its exceeding KWYD's
    authorized nighttime power level and its operation with power below
    the authorized daytime 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
    nineteen thousand dollars (\$19,000).[^2] Pilgrim responded to the
    *NAL* on January 21, 2003, and filed a supplementary response on
    February 20, 2003.

# BACKGROUND

3.  Radio station KWYD is authorized to operate with 10,000 watts of
    power during daytime hours and 67 watts between sunset and sunrise
    on frequency 1580 kHz. On August 21, 2001, an agent from the Denver
    Office monitored KWYD and took numerous field strength measurements
    at locations near the KWYD transmitter between 7:10 p.m. to 9:00
    p.m. MDT. According to its station authorization, KWYD should have
    switched from daytime to nighttime power at 8:00 p.m. The agent
    observed no change in the field strength from 8:00 p.m. to 9:00 p.m.
    The agent concluded, based on his observations and experience, that
    KWYD's power appeared to remain at approximately the station's
    authorized daytime level, 10,000 watts, throughout the monitoring
    period (7:10 p.m. to 9:00 p.m) and did not decrease at 8:00 pm.

4.  On August 22, 2001, from 5:40 a.m. to 9:30 a.m. MDT, the agent again
    conducted numerous field strength measurements near KWYD\'s
    transmitter. According to its station authorization, KWYD should
    have switched from nighttime to daytime power at 6:15 a.m. The agent
    observed no change in the field strength at that time and also
    observed that KWYD's field strength remained at approximately the
    same level throughout the monitoring period. After the monitoring,
    the agent inspected the station and observed that KWYD was operating
    with a power of approximately 225 watts.[^3] Specifically, KWYD was
    operating with about 336% of the authorized nighttime power level
    from 5:40 a.m. to 6:15 a.m. and with about 2.25% of the authorized
    daytime power level from 6:15 a.m. to 9:30 a.m.

5.  On the morning of August 22, 2001, when the agent initially
    attempted to inspect the KWYD main studio at 490 Willow Springs
    Road, Fountain, Colorado, the main studio was closed and unstaffed.
    A sign on the door provided the name and telephone number of the
    general manager, but indicated that, as of July 15, 2001, the studio
    was open by appointment only. After contacting the general manager,
    the agent was able to complete the inspection. During the inspection
    of KWYD, the agent found that, although EAS equipment was installed,
    the EAS system was not fully operational because it was not properly
    programmed. Following the inspection and after KWYD's power had been
    raised to 10,000 watts, the agent took a new field strength reading
    which confirmed that KWYD had been operating with power of
    approximately 10,000 watts on August 21, 2001.

6.  On December 12, 2001, the Denver Office issued an NOV to Pilgrim for
    the violations discovered on August 21 and 22, 2001, at station
    KWYD. In its response, Pilgrim stated that its remote control
    system, which controls KWYD's power level, was not programmed after
    KWYD\'s studio relocation in March 2001 but has now been programmed.
    In addition, Pilgrim stated that the KWYD's EAS equipment was also
    not programmed following the studio relocation but has now been
    programmed. Pilgrim also stated that it has hired a person to staff
    its main studio between 9:00 a.m. and 5:00 p.m., Monday through
    Friday.

7.  On November 20, 2002, the Denver Office issued a *NAL* to Pilgrim
    for a forfeiture in the amount of nineteen thousand dollars
    (\$19,000). In its January 21, 2003, response to the *NAL*, Pilgrim
    states that it has replaced KWYD's EAS system; that the EAS system
    has been programmed and has a properly trained operator; that the
    station is required to reduce power at night and daily manual checks
    have been instituted to assure that KWYD reduces its power at the
    proper times; and that KWYD's main studio is staffed from 9:00 a.m.
    to 5:00 p.m. Monday through Friday "by a manager and a full time
    staff person." Pilgrim requested cancellation 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"),[^4] Section 1.80 of the Rules,[^5] 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.[^6]

9.  Section 11.35(a) of the Rules requires that broadcast stations have
    fully operational EAS equipment. The FCC agent's investigation
    establishes that Pilgrim did not have fully operational EAS
    equipment at its station between March 2001 and August 22, 2001.
    Further, Pilgrim does not dispute that KWYD did not have fully
    operational EAS equipment during this time. Based on the facts
    before us, we find that Pilgrim willfully[^7] and repeatedly[^8]
    violated Section 11.35(a) of the Rules.

10. 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 states, 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. We find that Pilgrim did not reduce KWYD's
    power to the authorized nighttime level at sunset on August 21,
    2001; and did not increase KWYD's power to the authorized daytime
    level at sunrise on August 22, 2001 \-- in willful and repeated
    violation of Sections 73.1560(a) and 73.1745(a) of the Rules.

11. Section 73.1125(a) of the Rules requires that every broadcast
    station licensee maintain a main studio for the station. To serve
    the needs and interests of the residents of the station\'s community
    of license, the licensee must maintain a full-time staff and
    managerial presence during normal business hours.[^9] We conclude
    that, from July 15 to August 22, 2001, Pilgrim did not have a full
    time management and staff presence during normal business hours at
    the main studio of station KWYD, in willful and repeated violation
    of Section 73.1125(a) of the Rules.

12. No mitigation is warranted on the basis of Pilgrim's correction of
    the violations. 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." [^10]

13. Finally, Pilgrim argues that, if the proposed \$19,000 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.[^11] The Commission has
    determined that, in general, a licensee\'s gross revenues are the
    best indicator of its ability to pay a forfeiture.[^12] After
    reviewing the financial data submitted, we find that the proposed
    monetary forfeiture should not be cancelled or reduced. [^13]

14. 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 Sections 11.35,
    73.1125(a), 73.1560(a) and 73.1745(a) of the Rules and that neither
    cancellation nor reduction of the proposed \$19,000 monetary
    forfeiture is warranted.

# 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 nineteen thousand dollars (\$19,000)
    for willful and repeated violation of Sections 11.35, 73.1125(a),
    73.1560(a) and 73.1745(a) of the Rules.

16. 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. 200332800005 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]

17. **IT IS FURTHER ORDERED** That a copy of this *Forfeiture Order*
    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. §§ 11.35, 73.1125(a), 73.1560(a) and 73.1745(a).

[^2]: Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
    200332800005 (Enf. Bur., Denver Office, released November 20, 2002).

[^3]: Apparently, at some time between 9:00 p.m. on August 21, 2001, and
    5:40 a.m. on August 22, 2001, KWYD's power was reduced from about
    10,00 watts to about 225 watts.

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: 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).

[^8]: 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).

[^9]: Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 and
    n.2 (1992), clarified, 7 FCC Rcd 6800 (1992).

[^10]: 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).

[^11]: Since we consider only the three most recent federal income tax
    returns, we are not considering the 1998 return.

[^12]: See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
    (1992).

[^13]: 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).*

[^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.