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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Midwest Radio Corporation ) File Number EB-04-DV-377
Licensee of Station KWYR(AM) ) NAL/Acct. No. 200632800001
Winner, South Dakota ) FRN 0007557408
Facility ID #42112 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 5, 2006
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Midwest Radio Corporation ("Midwest"), licensee of station
KWYR(AM), in Winner, South Dakota, apparently willfully and repeatedly
violated Section 73.1745(a) of the Commission's Rules ("Rules") by
failing to operate KWYR(AM) in accordance with the station's
authorized power and hours of operation specified on the license. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Midwest is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. KWYR(AM) is authorized to operate with a non-directional pattern on
1260 kHz with 5,000 watts during daytime hours and 146 watts during
nighttime hours. Daytime is defined as the "period of time between
local sunrise and local sunset" and nighttime is defined as the period
"between local sunset and local sunrise." In Winner, South Dakota,
during the month of August, local sunrise occurs at 6:45 a.m. and
local sunset occurs at 8:45 p.m. KWYR(AM) is also authorized to
operate under a presunrise service authorization ("PSRA") and a
postsunset service authorization ("PSSA"). In the month of August,
KWYR's PSRA authorization allows the station to operate at 500 watts
between 6:00 a.m. and 6:45 a.m., and KWYR(AM)'s PSSA authorization
allows the station to operate, between 239 watts and 146.7 watts,
during the hours of 8:45 p.m. to 10:45 p.m.
3. In response to a complaint, an agent from the Enforcement Bureau's
Denver Office monitored the field strength levels of station KWYR(AM)
between August 3 and 5, 2005. The agent recorded field strength
measurements at a location approximately 0.7 miles from the KWYR(AM)
transmitter site. On August 3, 2005, at 8:10 p.m., the agent recorded
a field strength measurement of 680 mV/m at the site. On August 4,
2005, at 6:58 p.m., the agent recorded a field strength measurement of
680 mV/m at the site. Later that evening, at 9:19 p.m., the agent
recorded a field strength measurement of 650 mV/m at the site.
4. On August 5, 2005, at 5:48 a.m., the Denver agent recorded a field
strength measurement of 660 mV/m at the same site. The agent then
conducted an inspection of the KWYR studio and transmitter site. At
the time of inspection, station personnel demonstrated to the agent
that KWYR(AM) was operating at 350 watts nighttime power and 4,400
watts daytime power. The agent made field strength measurements during
the inspection at the original observation site located at a distance
of approximately 0.7 miles from the transmitter site. The resulting
measurements when KWYR(AM) was operating at 4,400 watts was 660 mV/m,
and 210 mV/m, when KWYR(AM) was operating at 350 watts.
5. During the inspection, the Denver agent interviewed the owner of
Midwest, Scott Schramm ("Schramm"). Schramm indicated that KWYR(AM)
had been having problems with its remote control of the transmitter
and power changes. Both sunrise and sunset power transitions required
a manual changeover at the transmitter site. Schramm acknowledged that
was not being done as often as required.
6. The agent also reviewed the KWYR(AM) station technical operating logs.
These logs revealed that KWYR(AM) had a consistent pattern of
operating significantly above its authorized nighttime power for
several months prior to the inspection.
III. DISCUSSION
7. 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. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
8. The Rules state that each licensee is responsible for maintaining and
operating its broadcast station in a manner which complies with the
technical rules and in accordance with the terms of the station
license. Specifically, Section 73.1745(a) of the Commission's Rules
states that no broadcast station shall operate at times or with modes
or power, other than those specified and made part of the license.
During the month of August, KWYR(AM) is authorized to operate at 5000
watts between 6:45 a.m. and 8:45 p.m. After 8:45 p.m., and before 6:45
a.m., KWYR(AM) is authorized to operate between 146 and 500 watts.
9. On August 4, 2005, at 9:19 p.m., a Denver agent measured KWYR(AM)'s
power level at 650 mV/m, at 0.7 miles from the KWYR(AM) transmitter.
On August 5, 2005, at 5:48 a.m., the agent measured KWYR(AM)'s power
level at 660 mV/m at the same location. Later that day, the agent
measured KWYR(AM)'s daytime power level at 660 mV/m at 11:40 a.m.,
when the station was operating at 4400 watts. Therefore, KWYR(AM)'s
nighttime operations on August 4 and 5, 2005, exceeded KWYR(AM)'s
authorized nighttime power by approximately 3000%. Station personnel
demonstrated the nighttime power of KWYR(AM) to the agent at 350 watts
instead of the licensed 146 watts. Additionally, a review of the
KWYR(AM)'s technical logs revealed that Midwest operated KWYR(AM) at a
power level that exceeded KWYR(AM)'s authorized nighttime power on
other dates prior to the Denver agent's inspection. Also, the owner of
Midwest acknowledged to the Denver agent that the sunrise and sunset
power transitions were not performed at the station as often as
required.
10. Midwest was aware of KWYR(AM)'s failure to consistently change power
levels at sunrise and sunset times, therefore, Midwest's violation is
willful. The violation occurred on more than one day, therefore, it is
repeated. Based on the evidence before us, we find that Midwest
apparently willfully and repeatedly violated Section 73.1745(a) of the
Rules by failing to adhere to the station's authorized power and hours
of operation specified on the KWYR(AM) license.
11. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for exceeding power limits is $4,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Midwest is apparently liable for a $4,000
forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Midwest Radio Corporation is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violations of Sections
73.1745(a) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Midwest Radio Corporation
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 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, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
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 Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado, 80226 and must include
the NAL/Acct. No. referenced in the caption.
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner 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 petitioner'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 payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Midwest Radio Corporation at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.1745(a).
47 U.S.C. S 503(b).
Authorized power levels are specified on station license BZ-910418AG and
authorized hours of operation are specified on station license
BZ-801020AH.
47 C.F.R S 73.14.
All times indicated are local Central Daylight Savings Time.
Specifically, KWYR(AM) is authorized to operate at 239 watts, between 8:45
p.m. and 9:15 p.m.; at 183.1 watts, between 9:15 p.m. and 9:45 p.m.; and
at 146.7 watts, between 9:45 p.m. and 10:45 p.m.
Section 312(f)(1) of the Act, 47 U.S.C. S 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', when used with reference to the
commission or omission of any act, 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
47 C.F.R. S 73.1745(a).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.1745(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission