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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Consolidated Radio, Inc. ) File No: EB-10-HU-0045
Licensee of Station KVOZ(AM) ) NAL/Acct. No.: 201132540002
Del Mar Hills, Texas ) FRN: 0006158083
Facility ID #: 6429 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: May 16, 2011 Released: May 16, 2011
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order
("NAL"), we find that Consolidated Radio, Inc. ("Consolidated Radio"),
licensee of Station KVOZ(AM) in Del Mar Hills, Texas, apparently
willfully and repeatedly violated sections 73.1125, 73.1745(a) and
73.3526 of the Commission's Rules ("Rules") by failing to (1) maintain
a main studio in the community of license; (2) operate consistent with
the terms of its station authorization; and (3) maintain and make
available a complete public inspection file. We conclude that
Consolidated Radio is apparently liable for a forfeiture in the amount
of twenty-one thousand dollars ($21,000). We further order
Consolidated Radio to submit a sworn statement certifying that it is
currently in compliance with sections 73.1125, 73.1745(a), and 73.3526
of the Rules.
II. BACKGROUND
2. On July 27 and 28, 2010, an agent from the Enforcement Bureau's
Houston Office ("Houston Office") monitored the field strength for AM
broadcast Station KVOZ in Del Mar Hills, Texas. The agent observed
that the station's field strength remained the same both days after
sunset.
3. On July 28, 2010, an agent from the Houston Office also attempted to
inspect Station KVOZ, but could not locate the station's main studio
in Del Mar Hills, Texas, its community of license. The station had no
published local or toll free telephone number in Del Mar Hills, so the
agent called Consolidated Radio at its office in McAllen, Texas.
Consolidated Radio provided the agent with a name of a contractor from
Brownsville, Texas who handles FCC issues for Station KVOZ and advised
that the contractor would coordinate an inspection of the station.
4. The agent thereafter contacted the contractor, and on July 29, 2010,
the agent, accompanied by the aforementioned contractor and a
technician, inspected the station's transmitter site. Station KVOZ's
technician stated that the station had been running at 3 kilowatts
power during both daytime and nighttime operation "for the last few
months" due to a problem with its transmitter. The technician, in the
presence of Consolidated Radio's contractor, also stated that Station
KVOZ had not maintained a main studio for that period. Consequently,
the station's public inspection file had not been available for
inspection by the public at a main studio for that time. Later that
same day, the agent, accompanied by the technician and the contractor,
traveled to a private residence in Laredo, Texas and inspected a file
that reportedly had been located at the previous main studio location.
The file contained some of the contents of the station's public
inspection file, but did not contain the station's service contour
map, political file, or issues/programs lists.
III. DISCUSSION
5. Section 503(b) of the Communications Act of 1934, as amended ("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.
6. Section 73.1125 of the Rules requires the licensee of a broadcast
station to maintain a main studio at one of the following locations:
(1) within the station's community of license; (2) at any location
within the principal community contour of any AM, FM or TV broadcast
station licensed to the station's community of license; or (3) within
twenty five miles from the reference coordinates of the center of its
community of license. As discussed above, the Bureau's investigation
on July 29, 2010 revealed that Consolidated Radio had failed to
maintain a main studio for Station KVOZ for a period of several
months. Thus, based on the evidence before us, we find that
Consolidated Radio willfully and repeatedly violated section 73.1125
of the Rules by failing to maintain a main studio.
7. Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times, or with modes or power, other than those specified
and made a part of the license, unless otherwise provided. Station
KVOZ is licensed to operate at 10 kilowatts during the day and 1
kilowatt after sunset. As discussed above, on July 27 and 28, 2010, an
agent observed that Station KVOZ did not reduce its power after
sunset. The station's technician admitted that Station KVOZ had for
several months operated with 3 kilowatts of power at all times.
Accordingly, Station KVOZ was operating over its authorized power
after sunset. Thus, based on the evidence before us, we find that
Consolidated Radio willfully and repeatedly violated section
73.1745(a) of the Rules by failing to operate Station KVOZ in
accordance with the station's authorized power as specified on the
station's license.
8. Section 73.3526(a)(2) of the Rules requires that every permittee or
licensee of an AM, FM, TV or class A TV station in the commercial
broadcast services maintain a public inspection file containing the
material, relating to that station, described in paragraphs (e)(1)
through (e)(10) and paragraph (e)(13) of that section. In addition,
section 73.3526(b) of the Rules requires the public inspection file be
maintained at the station's main studio, and section 73.3526(c)(1) of
the Rules requires the file be available for public inspection at any
time during regular business hours. As Station KVOZ did not have a
main studio for several months, the station's public inspection file
was not available for inspection at the station's main studio during
normal business hours for several months prior to the Bureau's
inspection. Although the station did produce for inspection a file at
a private residence, as discussed above, it was unavailable for public
inspection during normal business hours and did not contain the
station's service contour map, political file, or any issues/programs
lists. Accordingly, based on the evidence before us, we find that
Consolidated Radio apparently willfully and repeatedly violated
sections 73.3526 of the Rules by failing to maintain and make
available a complete public inspection file.
9. Pursuant to the Forfeiture Policy Statement, and section 1.80 of the
Rules, the base forfeiture amount for violation of main studio rule is
$7,000, for public inspection file violations is $10,000 and 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, and 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 Consolidated Radio is apparently liable for a total forfeiture of
$21,000, consisting of the following elements: $7,000 for failure to
maintain a main studio; $4,000 for failure to operate its station
pursuant to the authorized power limits; and $10,000 for failure to
maintain and make available a complete public inspection file. We
caution Consolidated Radio and other licensees that additional or
similar violations may be subject to substantially larger forfeitures.
10. We direct Consolidated Radio to submit a statement signed under
penalty of perjury by an officer or director of Consolidated Radio
stating that: (1) it is maintaining a main studio for Station KVOZ in
compliance with section 73.1125 of the Rules; (2) Station KVOZ is
powering down after sunset as specified in its station authorization;
and (3) a complete public inspection file is available at Station
KVOZ's main studio. This statement must be provided to the Houston
Office at the address listed in paragraph 15 within thirty days of the
release date of this Notice of Apparent Liability for Forfeiture.
IV. ORDERING CLAUSES
11. 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, Consolidated Radio, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-one thousand dollars ($21,000) for violations of
sections 73.1125, 73.1745(a) and 73.3526 of the Rules.
12. IT IS FURTHER ORDERED that Consolidated Radio, Inc. SHALL SUBMIT a
sworn statement as described in paragraph 10 to the Houston Office
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture and Order.
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 and Order, Consolidated
Radio, Inc. 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 credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, Consolidated Radio will send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
15. 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 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Houston Office, 9597 Jones Road #362, Houston,
Texas, 77065 and must include the NAL/Acct. No. referenced in the
caption. The statement should also be emailed to SCR-Response@fcc.gov.
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.
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 Consolidated Radio, Inc. at P.O. Box 252, McAllen, TX
78505-0252.
FEDERAL COMMUNICATIONS COMMISSION
Lee R. Browning
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.1125, 73.1745(a), 73.3526.
Id.
In Del Mar Hills, Texas, during the month of July, local sunset occurs at
8:30 p.m. CDT. See http://www.fcc.gov/mb/audio/bickel/srsstime.html.
47 U.S.C. S: 503(b).
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.,
Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7 FCC
Rcd 3454 (1992).
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: 73.1125.
Neither the private residence in Laredo nor the unattended transmitter
site qualifies as a main studio. Although the station's sound board and
microphone were located at the private residence, the residence did not
appear to contain continuous program transmission capability as it only
had one telephone line, was not open to the public, and was not staffed by
any station employees. Similarly, the transmitter site was unattended and
appeared to contain no production facilities. See Amendment of Sections
73.1125 and 73.1130 of the Commission's Rules, the Main Studio and
Program Origination Rules for Radio and Television Broadcast Stations,
Memorandum Opinion and Order, 3 F.C.C.R. 5024, 5026 (1988) (finding in
part that a station must equip the main studio with production and
transmission facilities that meet applicable standards) (subsequent
history omitted); Jones Eastern of the Outer Banks, Inc., Memorandum
Opinion and Order, 6 FCC Rcd 3615, 3616 (1991), (defining minimally
acceptable "meaningful presence" as full-time managerial and full-time
staff personnel), clarified, 7 FCC Rcd 6800 (1992).
47 C.F.R. S: 73.1745(a).
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 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1125,
73.1745(a), 73.3526.
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-870
2
Federal Communications Commission DA 11-870