Federal Communications Commission DA 08-1187
 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Southern New Mexico Radio Foundation
Licensee of Station WPXT310
Alamogordo, New Mexico
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File Number: EB-07-DV-122
NAL/Acct. No.:  200732800009
FRN: 0005836226
FORFEITURE ORDER
Adopted: May 19, 2008 Released: May 21, 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 eight 
hundred dollars ($800) to Southern New Mexico Radio Foundation ("Southern"), licensee of station 
WPXT310 in Alamogordo, New Mexico, for willful and repeated violation of Sections 1.903(a), 1.947(a), 
and 74.532(e) of the Commission's Rules ("Rules").1 On September 11, 2007, the Enforcement Bureau’s 
Denver Office issued a Notice of Apparent Liability for Forfeiture (“NAL”) in the amount of $4,000 to 
Southern for failing to operate station WPXT310, an aural studio-transmitter-link ("STL"), from its licensed 
location. In this Order, we consider Southern’s arguments that it displays a high level of public service, 
which should mitigate the forfeiture, that the statutory factors requires reduction of the forfeiture, that the 
fine is disproportionate to the nature of the offense, and that Southern does not have the ability to pay the 
forfeiture.   
II. BACKGROUND
2.  On March 26, 2007, an agent from the Enforcement Bureau's Denver Office responded to 
a complaint of an auxiliary broadcast transmitter operating from an unauthorized location in Alamogordo, 
New Mexico.  At approximately 7:00 p.m., the agent observed a signal 948.425 MHz emanating from an 
antenna located at 3001 North Florida Avenue, in Alamogordo, New Mexico.
3. On March 27, 2007, the Denver agent returned to conduct an inspection.  The inspection 
revealed that the 3001 North Florida Avenue location housed the studios of the Southern New Mexico 
Radio Foundation.   The transmitter, operating under call sign WPXT310, was determined to be the STL 
for broadcast station KUPR.  The coordinates of the studios on North Florida Avenue were approximately 
32º 55' 40" north latitude, 105º 57' 10.4" west longitude.   According to the WPXT310 authorization, the 
STL is licensed for operation from the coordinates of 32º 54' 25.5" north latitude, 105º 57' 35.8" west 
longitude with a physical street address of 1510 North White Sands Boulevard, Alamogordo, New 
Mexico.
4. During the inspection, the agent informed Southern's owner of the violation concerning 
  
1 47 C.F.R. §§ 1.903(a), 1.947(a), and 74.532(e).
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the location of the STL.  The Southern representative stated that the studio and STL moved from the 1510 
North White Sands Boulevard location on February 16, 2007.  When the inspection was completed, the 
agent reviewed the violation with Southern's owner.  The station owner acknowledged the licensing error 
and Southern's failure to include the STL transmitter location change when they applied for an STA for 
the parent broadcast station, KUPR.  The station owner stated that he would start paperwork immediately 
to make the changes for WPXT310.
5. On March 28, 2007, the agent returned to the studio location of 3001 North Florida 
Avenue and observed that WPXT310 was still operating from that location.
6. On April 18, 2007, a review of the Commission's databases revealed no modification 
application on file for WPXT310.   In a fax stamped with the date of April 21, 2007, Southern's owner 
sent the Denver agent information concerning the necessary modifications that were to be made:  a 
change of address request to the FCC and an application for a "simplex auxiliary broadcast STL 
microwave path" sent to a frequency coordination company.
7. On September 4, 2007, a review of the Commission's databases revealed no modification 
application on file for WPXT310.   
8. On September 11, 2007, the Denver Office issued a NAL in the amount of $4,000 to 
Southern.2 In the NAL, the Denver Office found that Southern apparently willfully and repeatedly violated 
Sections 1.903(a), 1.947(a), and 74.532(e) of the Rules by failing to operate station WPXT310 from its
licensed location.  Southern filed a response (“Response”) to the NAL on October 11, 2007, and 
supplemented its response on March 19, 2008, and April 11, 2008.  In its Response, Southern argues that 
it displays a high level of public service, which should mitigate the forfeiture, that the statutory factors 
requires reduction of the forfeiture, that the fine is disproportionate to the nature of the offense, and that 
Southern does not have the ability to pay the forfeiture.  
III. DISCUSSION
9. The proposed forfeiture amount in this case was assessed in accordance with Section 
503(b) of the Act,3 Section 1.80 of the Rules,4 and The Commission’s Forfeiture Policy Statement and 
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines.5  In examining the 
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.6
10.  Section 1.903(a) of the Rules requires that stations in the Wireless Radio Services must 
be used and operated only in accordance with the rules applicable to their particular service and with a 
valid authorization granted by the Commission.7 Section 1.947(a) of the Rules requires that all major 
  
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732800009 (Enf. Bur., Western Region, Denver 
Office, released September 11, 2007).  
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (“Forfeiture Policy Statement”).
6 47 U.S.C. § 503(b)(2)(E).
7 47 C.F.R. § 1.903(a).
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modifications as defined in Section 1.929 of the Rules require prior Commission approval.8 Section 
1.929(d)(1)(i)  of the Rules defines one of the major actions as "any change in transmit antenna location 
by more than 5 seconds in latitude or longitude for fixed point-to-point facilities."9 Section 74.532(e) of 
the Rules states that each aural broadcast auxiliary station will be licensed at a specified transmitter 
location to communicate with a specified receiving location, and the direction of the main radiation lobe 
of the transmitting antenna will be a term of the station authorization.10 At the time of the inspection on 
March 27, 2007, Southern was found operating station WPXT310 from a location inconsistent with the 
station's authorized coordinates and "fixed address location."  The distance separating the point of 
operation from that of the license was greater than 1 mile (approximately 74 seconds of latitude and 25 
seconds of longitude). 
11. In its Response, Southern does not dispute the facts recited in the NAL. Instead it argues 
that its station KUPR, Alamogordo, New Mexico, which WPXT310 is the STL for, displays an 
extraordinary level of public service, which supports mitigation of the forfeiture.  We applaud Southern’s 
efforts, however, they are not a basis for reduction of the forfeiture.  The Commission has consistently 
held that “licensees are expected to comply with the Commission’s Rules as well as to make continued 
efforts to serve the community to which they are licensed and will not be relived of liability for violations 
of the Rules by the fact they have fulfilled their responsibility to serve their communities.”11  
Additionally, “a licensee is not relieved of responsibility for complying with applicable statutes and rules 
by the fact that it has performed an outstanding public service to the community.”12 Therefore, we 
decline to mitigate the proposed forfeiture based on Southern’s public service record.
12. Southern also argues that the statutory factors require reduction of the forfeiture, 
including its excellent record of public service, along with the fact that no interference was caused by 
Southern’s operation of WPXT310 at an unauthorized location.  We have discussed the relevance of 
Southern’s public service record above. We note that the Denver Office found that Southern was 
apparently liability for operating from an unauthorized location, not for causing interference by operating 
WPXT310.  Additionally, it is well established that the absence of public harm is not considered a 
mitigating factor in a rule violation and does not warrant a downward adjustment of a forfeiture.13  
Therefore we find no merit to this argument.
13. Southern also argues that broadcasters utilizing auxiliary services such as STL’s are 
entitled to a “free” amount of unlicensed auxiliary use, and that operators of such stations should be given 
greater flexibility to serve the needs of the public.  While we acknowledge that Section 74.24(d) of the 
Rules allows an STL station short-term operation under the authority conveyed by a part 73 license or a 
broadcast auxiliary license without prior FCC authorization, not to exceed 720 hours annually,14 this rule 
does not mitigate Southern’s violation.  At the time of the inspection, the Denver agent was told by the 
  
8 47 C.F.R. § 1.947(a). 
9 47 C.F.R. § 1.929(d)(1)(i).
10 47 C.F.R. § 74.532(e).
11 Radio Beaumont, Inc., 50 FCC 2d 904 (1975).  See also Garvin County Broadcasting, Inc., 46 FCC 2d 954 (1974).
12 Esther Blodgett, 18 FCC 2d 6 (1969).  See also Folkways Broadcasting Co., 12 FCC 2d 887 (1968).
13 Pacific Western Broadcasters, 50 FCC 2d 819 (1975).
14 47 C.F.R. § 74.24(d).
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owner of WPXT310 that the station had been operating from the unauthorized location for more than a 
month, therefore, more than 720 hours.  Six months after the inspection, a review of the Commission’s 
databases revealed that, on September 4, 2007, Southern had still failed to file an application with the 
Commission to modify the WPXT310 license.  Additionally, despite Southern’s assurance, in its October 
11, 2007 Response, that the “oversight is being rectified,” we note that Southern did not file an 
application with the Commission to modify the WPXT310 license until April 22, 2008.15 Consequently, 
we find unavailing Southern’s argument that the $4,000 amount proposed by the Denver Office, which is 
the base forfeiture amount for operation at an unauthorized location,16 is disproportionate to the offense.  
14. Southern also argues that it does not have the ability to pay the proposed forfeiture 
amount. To support this claim, Southern supplied financial data for the three years prior to the NAL.17 In 
analyzing a financial hardship claim, the Commission generally has looked to gross revenues as a 
reasonable and appropriate yardstick in determining whether a licensee is able to pay the assessed 
forfeiture.18 We have reviewed the data supplied by Southern and we conclude that reduction of the 
forfeiture from $4,000 to $800 is warranted.19
15. We have examined the 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 Southern 
willfully and repeatedly violated Sections 1.903(a), 1.947(a), and 74.532(e) of the Rules.  Considering the 
entire record and the factors listed above, we find that reduction of the proposed forfeiture to $800 is 
warranted.
IV.  ORDERING CLAUSES
16. 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, Southern New Mexico Radio Foundation, IS LIABLE FOR A MONETARY 
FORFEITURE in the amount of $800 for willfully and repeatedly violating Sections 1.903(a), 1.947(a), 
and 74.532(e) of the Rules.20
17. 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.21 Payment of the forfeiture must be made by check or similar instrument, payable to the order of the 
  
15 See File No. 0003407558, received April 22, 2008.  We note that the location proposed in the modification 
application for WPXT310 is 3049 North Florida Avenue, Alamogordo, New Mexico, as opposed to 3001 North 
Florida Avenue. 
16 See 47 C.F.R. § 1.80(b)(4).
17 Forfeiture Policy Statement,  12 FCC Rcd at 17107 (the Commission has the flexibility to consider any 
documentation, not just audited financial statements, that it considers probative, objective evidence of the violator's 
ability to pay a forfeiture).
18 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
19 See PJB Communications, 7 FCC Rcd at 2089 (forfeiture not deemed excessive where it represented approximately 
2.02 percent of the violator’s gross revenues).
20 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4), 1.903(a), 1.947(a), 74.532(e).
21 47 U.S.C. § 504(a).
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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. 
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First Class Mail 
and Certified Mail Return Receipt Requested to Southern New Mexico Radio Foundation, at its address of 
record, and Barry Wood, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau