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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
JMK Communications, Inc.
) File Number: EB-07-HL-099
Licensee of AM Broadcast Station
KREA ) NAL/Acct. No.: 200732860001
Honolulu, HI ) FRN: 0007309503
Facility ID 39773 )
)
FORFEITURE ORDER
Adopted: March 27, 2008 Released: March 31, 2008
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of four thousand dollars ($4,000) to JMK Communications,
Inc. ("JMK"), licensee of AM Broadcast Station KREA, in Honolulu,
Hawaii, for willful and repeated violations of Section 73.44(b) of
the Commission's Rules ("Rules"). On August 7, 2007, the Enforcement
Bureau's Honolulu Resident Agent Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $4,000 to JMK for
failing to ensure that emissions removed by more than 75 kHz from the
KREA fundamental frequency of 1540 kHz were attenuated 80 dB below the
unmodulated carrier level. In this Order, we consider JMK's arguments
that it was not responsible for the violation, and that it has taken
extensive remedial actions to cure the violation.
II. BACKGROUND
2. On April 12, 2007, the Honolulu Office received a complaint alleging
that an AM broadcast station on 1540 kHz was causing interference on
1810 kHz and that the interference was a result of spurious emissions.
1810 kHz is authorized for primary use by stations in the Amateur
Radio Service.
3. On April 17, 2007, Honolulu agents inspected AM Broadcast Station
KREA, which is licensed to operate on 1540 kHz in Honolulu, Hawaii.
The agents employed a calibrated spectrum analyzer and an external
magnetically mounted antenna to measure spurious emissions from KREA
on 1810 kHz, attenuated -60 dB referenced to the KREA carrier on 1540
kHz.
4. A Notice of Violation ("NOV") was issued to JMK Communications, Inc.,
licensee of AM Broadcast Station KREA, on April 26, 2007, citing JMK
for violation of Section 73.44(b) of the Rules. JMK replied to the
Notice via letter dated May 15, 2007. In its response, JMK
acknowledged the spurious emissions, and stated that they had remedied
the problem.
5. On May 22, 2007, a Honolulu agent again inspected AM Broadcast Station
KREA. The Honolulu agent employed a calibrated spectrum analyzer and
an external magnetically mounted antenna and measured spurious
emissions from KREA on 1810 kHz, attenuated -59 dB referenced to the
KREA carrier on 1540 kHz. The agent spoke to the local KREA contract
engineer, who stated that the installed filtering had failed and
needed to be replaced. The agent also spoke with the individual who
had designed and installed the rejection filters for the station and
he confirmed that the installed filters had failed, and stated that
further repairs were pending.
6. On July 9, 2007, a Honolulu agent again inspected AM Broadcast Station
KREA. The agent employed a calibrated spectrum analyzer and an
external magnetically mounted antenna and measured spurious emissions
from KREA on 1810 kHz, attenuated -55 dB referenced to the KREA
carrier on 1540 kHz.
7. On July 18, 2007, the Honolulu Office received another e-mail
complaint alleging interference to Amateur Radio Service operations on
1810 kHz. The complaint stated that the spurious emissions had
continued unabated.
8. On August 7, 2007, the Honolulu Office issued a NAL in the amount of
$4,000 to JMK, finding that JMK apparently willfully and repeatedly
violated Section 73.44(b) of the Rules by failing to adequately
attenuate the spurious emissions on 1810 kHz. JMK filed a response
("Response") on September 6, 2007, and then supplemented that response
("Supplemental Response") on December 11, 2007. In its Response, JMK
argued that it is not responsible for the violation, but that it would
be willing to work with the Honolulu Office to resolve the issue.
After working with the Honolulu Office for four days in October, 2007,
JMK filed its Supplemental Response, which reiterated the arguments of
its Response, but supplied new, and conflicting, engineering data and
information.
III. DISCUSSION
9. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"). In examining JMK's response, Section 503(b) of the
Act requires that the Commission 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 other such matters as justice may
require.
10. Section 73.44(a) of the Rules requires that "[t]he emissions of
stations in the AM service shall be attenuated in accordance with the
requirements specified in paragraph (b) of this section." Section
73.44(b) of the Rules requires that "[e]missions removed by more than
75 kHz (from the carrier) must be attenuated at least 43 + 10 Log
(Power in watts) or 80 dB below the unmodulated carrier level,
whichever is the lesser attenuation...." Because AM Broadcast Station
KREA is licensed to operate on 1540 kHz, at 5000 watts, the emissions
on 1810 kHz must be attenuated 80 dB. The frequency 1810 kHz is not
assigned for broadcast use, and the station's emissions on 1810 kHz
are impacting primary Amateur Radio Service use. On April 26, 2007,
JMK received a NOV from the Honolulu Office notifying JMK that it is
was operating in violation of Section 73.44(b) by failing to ensure
that its emissions on 1810 kHz were attenuated 80 dB. Two subsequent
investigations by Honolulu agents, on May 22, 2007, and July 9, 2007,
revealed KREA was producing spurious emissions on 1810 kHz, attenuated
-59 dB, and -55 dB, respectively.
11. JMK first argues that it is not responsible for the violation of
Section 73.44(b). Specifically, in its Response, JMK states that in
response to the NOV, its engineer "installed an extra shunt filter in
order to ensure proper operation. He went on to take a series of
measurements that demonstrate that even with the KREA transmitter
turned completely off, there was still a significant signal detected
at 1810 kHz." JMK argues, therefore, that the filtering it had
installed had not failed, as suggested by the Honolulu Office in the
NAL, "but rather that the 1810 kHz signal is originating from some
other unrelated source." Consequently, JMK states that "KREA's
operations do not appear to be the source of the unauthorized
emissions cited in the [NAL]," and, therefore, asks that the
forfeiture be cancelled. In its Supplemental Response, JMK states that
"its own equipment is not the source, but only a passive contributor."
JMK also reiterates that it "is not the cause of this problem."
However, in the Engineering Report included with the Supplemental
Response, the JMK engineer states that "the 1810 kHz signal remains
and even increases in level slightly when the KREA transmitter is
turned off . . . . The signal only goes away when the [KREA]
transmitter AC power is disconnected or the [KREA antenna tuning unit
("ATU")] is disconnected from the tower." As the JMK engineer ran
tests with the other AM stations he found that "[t]he only station
which had any effect on the 1810 kHz signal while KREA was off is KNDI
(1270 kHz, facility ID 37065) which eliminated the signal when their
transmitter was turned off." However, after several different attempts
to determine the cause of the emissions, the JMK engineer determined
that it was "evident that the [KREA] transmitter itself may be playing
some factor in this since the only way the spur is completely
eliminated is with the [KREA] transmitter completely off or
disconnected." When he contacted the designer of the KREA transmitter,
the JMK engineer was told that "when the transmitter has power but the
carrier is off [ . . . ], any external RF excitation which enters the
PA stage can still be mixed with the carrier and transmitted since the
transmitter is a very efficient mixer." The JMK engineer then
calculated that "[u]sing direct ratios the power level for a 1810 kHz
spur at -60 dB (using KREA's 5 kW as the reference) would require only
5 milliwatts into the tower." The JMK engineer then concluded that the
"diplexing filters need to be redesigned to provide better isolation
than what was required by the previous tube-type transmitter used at
KREA."
12. Upon review of the Response and Supplemental Response, we find that
the statements in the Engineering Report included in the Supplemental
Response support the determination made by the Honolulu Office that
KREA was causing spurious emissions on 1810 kHz. As JMK noted in its
NOV response, the emission on 1810 kHz is apparently a "mixing
product" caused by KREA's second harmonic (3080 kHz) and operations by
KNDI on 1270 kHz. However, while KNDI may have passively contributed
to the resulting emissions on 1810 kHz, given the frequencies and
harmonics involved, KREA acknowledges that the offending signal on
1810 kHz "only goes away when then [KREA] transmitter AC power is
disconnected or the [KREA] ATU is disconnected from the tower."
Consequently, we find that KREA is responsible for the spurious
emissions on 1810 kHz.
13. JMK also argues that the forfeiture should be cancelled because of the
"highly responsive and responsible efforts and extraordinary expense"
it has incurred to remedy this problem. We applaud JMK's efforts in
this regard, and particularly commend the diligence of its engineer in
trying to resolve the spurious emissions. However, the Commission has
consistently held that a licensee is expected to correct errors when
they are brought to the licensee's attention and that such correction
is not grounds for a downward adjustment in the forfeiture. Because
JMK has provided no evidence to show that it began its efforts to
correct the spurious emission until after it was alerted to the
problem by the FCC agents from the Honolulu Office, we are unable to
reduce the forfeiture amount based on its remedial efforts.
14. We have examined the Response and the Supplemental Response to the NAL
pursuant to the statutory factors above, and in conjunction with the
Forfeiture Policy Statement. As a result of our review, we conclude
that JMK willfully and repeatedly violated Section 73.44(b) of the
Rules. Considering the entire record and the factors listed above, we
find that neither reduction nor cancellation of the proposed $4,000
forfeiture is warranted.
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, JMK Communications,
Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for
willfully and repeatedly violating Section 73.44(b) 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. 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/Account
Number and FRN Number 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. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to JMK
Communications, Inc., at its address of record, and Peter Gutmann,
Esquire, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S: 73.44(b).
47 C.F.R. S:S: 97.301, 2.106.
47 C.F.R. S: 73.44(b). As KREA is licensed to operate at 5000 watts, the
emissions are required to be attenuated 80 dB.
JMK disputes that the filters failed. See Response at 1; Supplemental
Response at 1.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732860001
(Enf. Bur., Western Region, Honolulu Resident Agent Office, released
August 7, 2007).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 73.44(a).
47 C.F.R. S: 73.44(b).
See AT&T Wireless Services, Inc.,17 FCC Rcd 21866, 21875-76 (2002);
Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.44(b).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-743
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Federal Communications Commission DA 08-743