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KM Radio of Independence, LLC

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Released: February 7, 2012

Federal Communications Commission

DA 12-157

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

KM Radio of Independence, LLC

)
File No.: EB-11-KC-0009
)
NAL/Acct. No.: 201232560001
Licensee of Stations KQMG and KQMG-FM,
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FRN: 0010976108
Independence, Iowa;
)
Facility ID Nos.: 42077; 42080
and Owner of Antenna Structure #1053693
)
)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

Adopted: February 7, 2012
Released: February 7, 2012
By the District Director, Kansas City Office, South Central Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture and Order (NAL), we find that KM
Radio of Independence, LLC (KM Radio or Licensee), licensee of Stations KQMG and KQMG-FM, in
Independence, Iowa, and owner of antenna structure number 1053693 (hereinafter referred to as “Tower”)
also located in Independence, Iowa, apparently willfully and/or repeatedly violated Sections 11.35, 17.51,
and 73.3526 of the Commission’s rules (Rules),1 and Section 303(q) of the Communications Act of 1934, as
amended (Act),2 by failing (with respect to both of its stations) to: maintain operational emergency alert
system (EAS) equipment; exhibit required obstruction lighting on the Tower; and maintain and make
available a complete public inspection file. Furthermore, specifically with respect to Station KQMG-FM,
we find that KM Radio apparently willfully violated Section 73.1560(b) of the Rules3 by operating Station
KQMG-FM with more than authorized transmitter output power. After adjusting the possible forfeiture
based on the Licensee’s limited financial resources, we conclude that KM Radio is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000). In addition, no later than thirty (30) calendar
days from the date of this NAL, KM Radio must submit a statement signed under penalty of perjury that it
has repaired its EAS equipment and tower lighting, it is operating within authorized power limits, and it is
maintaining two complete public inspection files for Stations KQMG and KQMG-FM.

II.

BACKGROUND

2.
On January 28, 2011, in response to a complaint, an agent from the Enforcement
Bureau’s Kansas City Office (Kansas City Office) contacted the Federal Aviation Administration (FAA)
and learned that no one had contacted the FAA about a light outage on the Tower,4 and that a Notice to


1 47 C.F.R. §§ 11.35, 17.51, 73.3526.
2 47 U.S.C. § 303(q).
3 47 C.F.R. § 73.1560(b).
4 See 47 C.F.R. § 17.48 (requiring owners of registered antenna structures that have been assigned lighting
specifications to report immediately to the FAA any observed or otherwise known extinguishment of any flashing
obstruction light not corrected within 30 minutes).

Federal Communications Commission

DA 12-157

Airmen (NOTAM) had not been issued for the Tower.5 On January 29, 30, and 31, 2011, an officer with
the Independence police department observed that only one non-flashing center red beacon on the Tower
was lighted after sunset. On January 31, 2011, KM Radio notified the FAA about the lighting outages on
the Tower. On February 9, 2011, agents from the Kansas City Office confirmed that all lights on the Tower
were dark, except for a non-flashing center red beacon.
3.
On February 10, 2011, agents from the Kansas City Office inspected the main studio of
Stations KQMG and KQMG-FM during regular business hours. In response to a request to inspect the
stations’ public inspection files, the agents were provided a single consolidated file for the two stations. The
public inspection file contained no issues/programs lists for either station after 2001.6 Stations KQMG
and KQMG-FM also had no logs of any EAS tests being sent or received.7 The operator on duty
acknowledged that only one EAS test had been received since November 1, 2010, the date he joined the
stations, and that no EAS tests had been sent. When the agents requested that a test be sent, the stations
were unable to transmit the audio for the EAS test.8 The operator on duty also stated that, since he joined
the stations on November 1, 2010, all of the lighting on the Tower except for the center beacon had been
out and that no repairs had been made. The agents also observed the power meter for Station KQMG-
FM’s unattended transmitter operating at 1.87 kW, which is 108% of its authorized transmitter output
power. Neither station had any station logs, and both unattended transmitters could not be accessed
remotely.
4.
On February 28, 2011, the Kansas City Office issued a Letter of Inquiry (LOI) to KM
Radio.9 In its response, KM Radio stated that: (1) its EAS logs are unavailable and were either
misplaced or not maintained10; (2) its management did not know that its EAS equipment was damaged
prior to receipt of the LOI, and that it is in the process of repairing its EAS equipment;11 (3) its
management did not learn of the Tower light outage until it received the LOI, and that it has instructed its
engineer to make the needed repairs12; (4) its Tower may not have been observed visually on a daily basis,
and that it has instructed all employees to monitor and report any light outages;13 and (5) it took
transmitter readings one week prior to the inspection, and that any overpower operations were
inadvertent.14


5 The FAA issued a NOTAM for the antenna structure on January 28, 2011, at the agent’s request.
6 KM Radio acquired both stations in 2003. See File No. BAL-20030815AET, granted October 2, 2003.
7 The agents only found a note in the station records, dated November 1, 2010, that a “part” for the EAS printer was on
order.
8 During the test, the stations’s audio for the regular programming was not muted.
9 See Letter from Robert C. McKinney, District Director, Kansas City Office, to KM Radio (Feb. 28, 2011) (on file
in EB-11-KC-0009).
10 Letter from Aaron P. Shainis, Counsel for KM Radio of Independence, LLC, to Robert C. McKinney, District
Director, Kansas City Office at 1 (Apr. 4, 2011) (on file in EB-11-KC-0009) (LOI Response).
11 Id.
12 Id. at 2.
13 Id.
14 Id. at 3.
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Federal Communications Commission

DA 12-157

III.

DISCUSSION

5.
Section 503(b) of the Act provides that any person who willfully or repeatedly fails to
comply substantially with the terms and conditions of any license, or willfully or repeatedly fails to comply
with any of the provisions of the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty.15 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.16 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,17 and the Commission has so interpreted the term in the Section
503(b) context.18 The Commission may also assess a forfeiture for violations that are merely repeated,
and not willful.19 The term “repeated” means the commission or omission of such act more than once or for
more than one day.20

A.

Failure to Maintain Operational EAS System Equipment

6.
Every broadcast station is part of the nationwide EAS network and is categorized as a
participating national EAS source unless the station affirmatively requests authority to refrain from
participation and the request is approved by the Commission.21 The EAS enables the President and state
and local governments to provide immediate communications and information to the general public.22
State and local area plans identify local primary sources responsible for coordinating carriage of common
emergency messages from sources such as the National Weather Service or local emergency management
officials.23 Required monthly and weekly tests originate from EAS Local or State Primary sources and
must be retransmitted by the participating station. As the nation’s emergency warning system, the EAS is
critical to public safety, and we recognize the vital role that broadcasters play in ensuring its success. The
Commission takes seriously any violations of the Rules implementing the EAS and expects full
compliance from its licensees.


15 47 U.S.C. § 503(b).
16 47 U.S.C. § 312(f)(1).
17 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) (“This provision [inserted in section 312] defines the
terms ‘willful’ and ‘repeated’ for purposes of section 312, and for any other relevant section of the act (e.g., section
503) . . . . As defined[,] . . . ‘willful’ means that the licensee knew that he was doing the act in question, regardless
of whether there was an intent to violate the law. ‘Repeated’ means more than once, or where the act is continuous,
for more than one day. Whether an act is considered to be ‘continuous’ would depend upon the circumstances in
each case. The definitions are intended primarily to clarify the language in sections 312 and 503, and are consistent
with the Commission’s application of those terms . . . .”).
18 See, e.g., Application for Review of Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991) (Southern California Broadcasting Co.).
19 See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
1362, para. 10 (2001) (Callais Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable television operator’s
repeated signal leakage).
20 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also applies to violations for which forfeitures are
assessed under Section 503(b) 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.”
21 See 47 C.F.R. §§ 11.11, 11.41.
22 See 47 C.F.R. §§ 11.1, 11.21.
23 See 47 C.F.R. § 11.18. State EAS plans contain guidelines that must be followed by broadcast and cable
personnel, emergency officials, and National Weather Service personnel in order to properly activate the EAS for
state and local emergency alerts. The state plans include the EAS header codes and messages to be transmitted by
the primary state, local and relay EAS sources.
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Federal Communications Commission

DA 12-157

7.
Specifically, Section 11.35(a) of the Rules requires all broadcast stations to ensure that EAS
encoders, EAS decoders, and Attention Signal generating and receiving equipment are installed and
operational so that the monitoring and transmitting functions are available when the station is in operation.24
On February 10, 2011, agents from the Kansas City Office observed that, while Stations KQMG and
KQMG-FM were operating, the stations were unable to transmit an EAS test. KM Radio admitted that it
did not have any EAS logs and had no evidence that any EAS tests had ever been sent or received by the
stations.25 On February 10, 2011, the operator on duty stated that the stations had not sent an EAS test since
at least November 1, 2010.26 Thus, based on the evidence before us, we find that KM Radio apparently
willfully and repeatedly violated Section 11.35(a) of the Rules by failing to maintain fully operational EAS
equipment while the stations were in operation.

B.

Failure to Maintain Required Obstruction Tower Lighting

8.
Section 303(q) of the Act states that antenna structure owners shall maintain the painting
and lighting of antenna structures as prescribed by the Commission.27 Section 17.51(a) of the Rules
requires all red obstruction lighting to be exhibited from sunset to sunrise unless otherwise specified.28
The Tower is 130 meters above ground in overall height and is required to be painted and lit.29 KM Radio’s
management does not know when the lights on its Tower first became inoperable,30 but, according to its
station operator, all of the Tower’s lights, except for a center non-flashing red beacon, were out at least as of
November 1, 2010. A local police officer also confirmed that all, but one, of the Tower’s lights were not
working as of January 29, 2011. KM Radio did not contact the FAA about the Tower light outage until
January 31, 2011. Further, KM Radio admitted that its employees may not have been visually monitoring
the Tower’s lights on a daily basis.31 Thus, based on the evidence before us, we find that KM Radio
apparently willfully and repeatedly violated Section 303(q) of the Act and Section 17.51(a) of the Rules
by failing to exhibit required red obstruction lighting on the Tower after sunset from at least November 1,
2010, until January 31, 2011.

C.

Failure to Operate Station at Authorized Power Level


9.
Section 73.1560(b) of the Rules states that “the transmitter output power of an FM
station, . . . which is authorized for output power more than 10 watts must be maintained as near as
practicable to the authorized transmitter output power and may not be less than 90% nor more than 105%


24 See 47 C.F.R. § 11.35(a).
25 See LOI Response at 1.
26 Section 11.35(b) of the Rules allows licenses to operate for 60 days pending the repair or replacement of defective
EAS equipment without further FCC authority. Entries must be made in the broadcast station log showing the date
and time the equipment was removed and restored to service. See 47 C.F.R. § 11.35(b). KM Radio did not order
any replacement parts for its EAS equipment until after the inspection, so KM Radio cannot claim that its operations
fell under this exception. See LOI Response at 1.
27 See 47 U.S.C. § 303(q).
28 See 47 C.F.R. § 17.51(a).
29 See Antenna Structure Registration database for antenna structure number 1053693. See also 47 C.F.R. § 17.21
(requiring antenna structures more than 60.96 meters in height to be painted and lighted).
30 See LOI Response at 2.
31 See id. See also 47 C.F.R. § 17.47(a) (requiring owners of antenna structures that are required to be lighted to make
an observation of the antenna structure’s lights at least once each 24 hours either visually or by observing an automatic
properly maintained indicator designed to register any failure of such lights).
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Federal Communications Commission

DA 12-157

of authorized power.”32 On February 10, 2011, agents from the Kansas City Office observed the power
meter for Station KQMG-FM’s unattended transmitter operating with 108% of authorized power. KM
Radio maintained no station logs and was unaware of when it began operating overpower. Although KM
Radio asserts its violation was inadvertent, we find this apparent violation willful because KM Radio
consciously operated Station KQMG-FM on February 10, 2011. Moreover, on February 10, 2011, KM
Radio had no means to monitor remotely its FM unattended transmitter,33 as the telephone line to the
transmitter had been disconnected. As such, KM Radio’s failure to ensure a connection for the
unattended transmitter also renders this apparent violation willful. Based on the evidence before us, we
find that KM Radio apparently willfully violated Section 73.1560(b) of the Rules by operating Station
KQMG-FM with more than authorized transmit power.

D.

Failure to Maintain and Make Available a Public Inspection File

10.
Section 73.3526(a) of the Rules states that “[e]very permittee or licensee of an AM, FM,
TV or a Class A station in the commercial broadcast services shall maintain a public inspection file
containing the material” set forth in this Section.34 The public inspection file must be maintained at the
main studio of the station,35 and must be available for public inspection at any time during regular business
hours.36 Section 73.3526(e)(12) of the Rules states that commercial AM and FM broadcast stations must
retain in the file “every three months a list of programs that have provided the station’s most significant
treatment of community issues during the preceding three month period. . . . The lists described in this
paragraph shall be retained in the public inspection file until final action has been taken on the station’s
next license renewal application.”37 On February 10, 2011, in response to a request made during normal
business hours, KM Radio provided a single—and not separate files for each station, as required under the
Rules—public inspection file for Stations KQMG and KQMG-FM. In addition, the agents found that the
single public inspection file contained no issues/programs lists after 2001. Based on the evidence before
us, we find that KM Radio apparently willfully and repeatedly violated Section 73.3526 of the Rules by
failing to maintain complete public inspection files for Stations KQMG and KQMG-FM.

E.

Proposed Forfeiture and Reporting Requirement

11.
Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for: (1) failure to maintain operational EAS equipment is $8,000; (2) failure to
comply with prescribed lighting and/or marking is $10,000; (3) exceeding power limits is $4,000; and (4)
violation of public file rules is $10,000.38 In assessing the monetary forfeiture amount, we must also take
into account the statutory factors set forth in Section 503(b)(2)(E) of the Act, which include the nature,


32 47 C.F.R. § 73.1560(b).
33 KM Radio also had no means to monitor remotely its unattended AM transmitter, which had a broken AM
antenna current meter. Agents, however, were unable to determine whether Station KQMG was operating
overpower.
34 47 C.F.R. § 73.3526(a)(2).
35 47 C.F.R. § 73.3526(b).
36 47 C.F.R. § 73.3526(c).
37 47 C.F.R. § 73.3526(e)(12).
38 See The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines
, Report and Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80.
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DA 12-157

circumstances, extent, and gravity of the violations, 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.39

12.
Applying the base forfeiture amounts, KM Radio would be apparently liable for a total
forfeiture of $42,000, consisting of the following: (1) $8,000 for non-operational EAS equipment; (2)
$10,000 for failure to display required lighting on the Tower; (3) $4,000 for exceeding power limits; and (4)
$20,000 for violation of public inspection file rules ($10,000 for each station). During our investigation,
KM Radio submitted financial and other information concerning its stations which, after our review,
establishes that it would be unable to pay a $42,000 forfeiture. With regard to an individual’s or entity’s
inability to pay claim, the Commission has determined that, in general, gross revenues are the best
indicator of an ability to pay a forfeiture.40 Having reviewed KM Radio’s submitted documentation
(including gross revenue figures), and after applying the Forfeiture Policy Statement, Section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that KM Radio is apparently liable for a
$10,000 forfeiture.
13.
In addition to the proposed forfeiture, we direct KM Radio to submit a written statement
signed under penalty of perjury, pursuant to Section 1.16 of the Rules,41 by an officer or director of KM
Radio, stating that the Licensee has repaired its EAS equipment and tower lighting, it is operating its
stations within authorized power limits, and it is maintaining two separate and complete public inspection
files for Stations KQMG and KQMG-FM. This statement must be provided to the Kansas City Office at
the address listed in paragraph 18 within thirty (30) calendar days of the release date of this NAL.

IV.

ORDERING CLAUSES

14.
Accordingly,

IT IS ORDERED

that, pursuant to Section 503(b) of the Communications
Act of 1934, as amended, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Commission’s Rules, KM
Radio of Independence, LLC is hereby

NOTIFIED

of this

APPARENT LIABILITY FOR A
FORFEITURE

in the amount of ten thousand dollars ($10,000) for violations of Section 303(q) of the
Act, and Sections 11.35, 17.51, 73.1560(b), and 73.3526 of the Rules.42
15.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Commission’s Rules,
within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture and
Order, KM Radio of Independence, LLC

SHALL PAY

the full amount of the proposed forfeiture or

SHALL FILE

a written statement seeking cancellation of the proposed forfeiture.43


39 47 U.S.C. § 503(b)(2)(E).
40 See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd 2088, 2089 (1992) (forfeiture not
deemed excessive where it represented approximately 2.02 percent of the violator’s gross revenues); Local Long
Distance, Inc.,
Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator’s gross revenues); Hoosier Broadcasting Corporation, Forfeiture Order,
15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it represented approximately 7.6 percent of the
violator’s gross revenues).
41 47 C.F.R. § 1.16.
42 See 47 U.S.C. §§ 303(q), 503(b), 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80, 11.35, 17.51, 73.1560(b), 73.3526.
43 Because the proposed forfeiture already considers the Licensee’s financial circumstances, which we have
determined supports a claim for inability to pay a $42,000 forfeiture, we will not entertain any request for further
reduction of the $10,000 forfeiture based on that claim. The Licensee, however, may still submit a written statement
seeking cancellation of the proposed forfeiture if it can demonstrate that the Bureau committed legal error in its
findings of fact and/or conclusions of law.
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Federal Communications Commission

DA 12-157

16.

IT IS FURTHER ORDERED

that KM Radio of Independence, LLC

SHALL SUBMIT

a statement as described in paragraph 13 to the Kansas City Office within thirty (30) calendar days of the
release date of this Notice of Apparent Liability for Forfeiture and Order.
17.
Payment of the forfeiture must be made by credit card, check, or similar instrument,
payable to the order of the Federal Communications Commission. The payment must include the
Account number and FRN referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For payment by credit card,
an FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter
the NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in
block number 24A (payment type code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.44 If you have questions regarding payment procedures, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or E-mail: ARINQUIRIES@fcc.gov. KM
Radio shall send electronic notification on the date said payment is made to SCR-Response@fcc.gov.
18.
The written statement seeking cancellation of the proposed forfeiture, if any, must
include a detailed factual statement supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules.45 Mail the written statement to Federal Communications
Commission, Enforcement Bureau, South Central Region, Kansas City Office, 520 NE Colbern Rd., 2nd
Floor, Lee’s Summit, MO, 64086 and include the NAL/Acct. No. referenced in the caption. KM Radio also
shall e-mail the written response to SCR-Response@fcc.gov.
19.

IT IS FURTHER ORDERED

that a copy of this Notice of Apparent Liability for
Forfeiture and Order shall be sent by both Certified Mail, Return Receipt Requested, and regular mail to
KM Radio of Independence, LLC at 3654 West Jarvis Avenue, Skokie, Illinois 60076, and to its counsel,
Aaron P. Shainis, Shainis & Peltzman, Chartered, 1850 M Street NW, Suite 240, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Ronald D. Ramage
District Director,
Kansas City Office
South Central Region
Enforcement Bureau


44 See 47 C.F.R. § 1.1914
45 47 C.F.R. §§ 1.16, 1.80(f)(3).
7

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