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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Catholic Radio Network, Inc. ) File No.: EB-10-DV-0407
Licensee of Station KPIO ) NAL/Acct. No.: 201232800001
Loveland, Colorado ) FRN: 0018470849
Facility ID No.: 35517 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: October 28, 2011 Released: October 31, 2011
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that Catholic Radio Network, Inc. ("CRNI"), licensee of AM
broadcast Station KPIO, in Loveland, Colorado ("Station"), apparently
willfully and repeatedly violated section 73.1745(a) of the
Commission's Rules ("Rules"), by failing to operate in accordance with
the Station's authorized power as specified on the Station's license.
We conclude that CRNI is apparently liable for a forfeiture in the
amount of four thousand dollars ($4,000). In addition, no later than
30 days from the date of this NAL, CRNI must submit a statement signed
under penalty of perjury that it is operating its station at
authorized power levels.
II. BACKGROUND
2. On December 20 and 22, 2010, and on January 5, 2011, an agent from the
Enforcement Bureau's Denver Office ("Denver Office") monitored the
field strength for Station KPIO in Loveland, Colorado. The agent
observed that the Station's field strength remained the same on
December 20 and 22, 2010, before and after sunset. In addition, the
agent observed that the station's field strength remained the same on
January 5, 2011, before and after sunrise.
3. On January 19, 2011, an agent from the Denver Office inspected Station
KPIO while accompanied by the Station's owner and contract engineer.
Comparing field strength measurements taken during the inspection on
January 19, 2011 against the field strength measurements taken on
December 20 and 22, 2010 and January 5, 2011, it was determined that
Station KPIO had been operating at approximately 1531 watts during
nighttime hours on these three prior dates, well above its authorized
nighttime operating power level. Station KPIO is licensed to operate
only between 11 and 32 watts during post-sunset, nighttime, and
pre-sunrise hours, during the months of December and January. The
Station's chief engineer subsequently investigated the status of the
Station's operating power and found, as the potential explanation for
the excess power level, a faulty remote control system, a defective
transmitter power reading meter, and a defective base current meter.
III. DISCUSSION
4. Section 503(b) of the Communications Act of 1934, as amended ("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. 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. 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, and the Commission has so
interpreted the term in the section 503(b) context. The Commission may
also assess a forfeiture for violations that are merely repeated, and
not willful. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. The record in this case demonstrates that CRNI violated section
73.1745(a) of the Rules, which states that no broadcast station shall
operate at times, or with modes or power, other than those specified
and made part of the license, unless otherwise provided. Station KPIO
is licensed to operate with 18 watts at nighttime, and with 11 to 32
watts post-sunset and pre-sunrise, during the months of December and
January. As discussed above, on December 20 and 22, 2010, an agent
observed that Station KPIO did not reduce its operating power after
sunset to its authorized level; and on January 5, 2011, an agent
observed that Station KPIO was not operating at its authorized reduced
power before sunrise. The fact that Station personnel were unaware
that Station KPIO was not reducing power to its authorized level at
night prior to the January 5, 2011, inspection by the Denver Office
does not serve to excuse or mitigate the violation. Accordingly, we
find that Station KPIO was operating over its authorized nighttime,
post-sunset and pre-sunrise power for more than one day; and conclude
that CRNI apparently willfully and repeatedly violated section
73.1745(a) of the Rules by failing to operate Station KPIO in
accordance with the Station's authorized power, as specified on the
Station's license, on more than one day.
6. Pursuant to the Commission's 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)(E) of the Act, which include the nature, 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.
Applying the Forfeiture Policy Statement, section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that CRNI
is apparently liable for a $4,000 forfeiture for failure to operate
its station pursuant to the authorized power limits. We further order
CRNI to submit a written statement pursuant to section 1.16 of the
Rules signed under penalty of perjury by an officer or director of
CRNI within thirty (30) days of the release date of this NAL that
Station KPIO is now in compliance with section 73.1745(a) of the
Rules.
IV. ORDERING CLAUSES
7. 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, Catholic Radio
Network, Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
violation of section 73.1745(a) of the Rules.
8. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture and Order, Catholic
Radio Network, Inc., SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
9. IT IS FURTHER ORDERED that Catholic Radio Network, Inc., SHALL SUBMIT
a written statement, as described in paragraph 6, within thirty (30)
days of the release date of this Notice of Apparent Liability for
Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, Denver
Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood, Colorado 80226.
10. 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 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. If you have questions regarding the payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
Catholic Radio Network, Inc., shall send electronic notification on
the date said payment is made to WR-Response@fcc.gov.
11. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Denver Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood,
Colorado 80226 and include the NAL/Acct. No. referenced in the
caption. Catholic Radio Network, Inc., shall also email the written
response to WR-Response@fcc.gov.
12. 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.
13. 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 Catholic Radio Network, Inc.,
201 N. Industrial Park Road, Excelsior Springs, Missouri 64024.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
47 C.F.R. S: 73.1745(a).
According to the KPIO Station License, the relevant average hour of sunset
for December is 4:30 p.m., MST. See File No: BL-20070214ACM, granted June
19, 2007.
According to the KPIO Station License, the relevant average hour of
sunrise for January is 7:30 a.m., MST. See File No: BL-20070214ACM,
granted June 19, 2007.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
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 . . . . ").
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (proposing a
forfeiture for, inter alia, a cable television operator's repeated signal
leakage).
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).
See, e.g., Kenneth Paul Harris, Sr., Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 12933, 12935 (Enf. Bur. 2000) (subsequent history
omitted; denying a mitigation claim of a broadcast licensee, stating that
its ignorance of the law did not excuse the unauthorized transfer of the
station); Maxwell Broadcasting Group, Inc., Memorandum Opinion and Order,
8 FCC Rcd 784, 784 (Mass Media Bur.) (denying a mitigation claim of a
noncommercial broadcast licensee, stating that the excuse of
"inadverten[ce], due to inexperience and ignorance of the rules . . . are
not reasons to mitigate a forfeiture" for violation of the advertisement
restrictions), recon. denied, Memorandum Opinion and Order, 8 FCC Rcd 4322
(Mass Media Bur. 1993).
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"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.1745(a).
See 47 C.F.R. S: 1.1914.
47 C.F.R. S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 11-1807
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Federal Communications Commission DA 11-1807