Federal Communications Commission DA 09-2404
 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Hodson Broadcasting
Permittee of KHOD(FM)
Des Moines, New Mexico
Facility ID # 165982
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File Number: EB-08-DV-0216
NAL/Acct. Nos.: 200932800001
200932800004
FRN: 0004297180
FORFEITURE ORDER
Adopted: November 10, 2009 Released: November 13, 2009 
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 
twenty thousand ($20,000) to Hodson Broadcasting (“Hodson”), permittee of station KHOD(FM) in Des 
Moines, New Mexico, for willful and repeated violation of Section 73.1620 of the Commission's Rules 
("Rules").1 On November 17, 2008, the Enforcement Bureau’s Denver Office issued a Notice of Apparent 
Liability for Forfeiture (“2008 NAL”) to Hodson in the amount of $10,000 after determining that Hodson 
apparently willfully and repeatedly operated KHOD(FM) at variance from its authorization. On April 21, 
2009, the Denver Office issued a second Notice of Apparently Liability for Forfeiture (“2009 NAL”) to 
Hodson in the amount of $10,000 for continuing to operate KHOD)(FM) at variance from its authorization.  
In this Order, we consider Hodson’s arguments that it has filed applications and requests for special 
temporary authority (“STA”) to legitimize its operation; that it should be treated as a small business 
concern; and that it lacks the ability to pay the proposed forfeiture amounts.   
II. BACKGROUND
2. On June 28, 2006, the Commission granted Hodson a construction permit, authorizing 
the construction of a new Channel 287, Class C FM station serving Des Moines, New Mexico, with an 
antenna height of radiation center above ground of 14 meters on an antenna structure with an overall 
height above ground of 32 meters, and effective radiated power of 82 kW.2 The construction permit 
expired on June 28, 2009.  On February 9, 2009, prior to the expiration of its construction permit, Hodson 
filed an application to modify the construction permit by moving the station approximately 34 miles from 
its permitted location and changing the community of license of the station from Des Moines, New 
Mexico, to Raton, New Mexico.3 The modification application also proposed to change the station from 
Class C to Class A, change the antenna height of radiation center above ground from 14 meters on an 
  
1 47 C.F.R. § 73.1620. 
2 See File No. BNPH-20060309ADA, granted June 28, 2006.
3 See File No, BMOH-20090209ABC, dismissed June 18, 2009. 
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antenna structure with an overall height above ground of 32 meters to an antenna height of radiation 
center above ground of 12 meters with an overall height of 12.2 meters above ground level, and decrease 
the station’s power from 82 kW to 2 kW.  The modification application was dismissed on June 18, 2009.4  
No other modification applications were filed and no authorization for program test authority or 
operational authority has ever been issued by the FCC for KHOD(FM). 
3. On June 24, 2008, in response to multiple complaints, a Denver Office agent investigated 
KHOD(FM)'s operation.  The agent observed that the station was in operation and was being operated 
from a location in Raton, New Mexico, approximately 34 miles northwest of its authorized location in 
Des Moines, New Mexico.5  
4. On June 25, 2008, the Denver agent inspected KHOD(FM) and observed that the station 
continued to operate from the Raton, New Mexico, studio/transmitter site.  The inspection revealed, 
among other matters, that KHOD(FM) had no STA or waiver to operate on-air, or to operate from its 
current location.  The agent interviewed the owner of Hodson Broadcasting.  Hodson acknowledged that 
the KHOD(FM) signal in Raton, New Mexico, does not reach the KHOD(FM) construction permit's 
community of license of Des Moines, New Mexico. The agent warned Hodson concerning the 
unauthorized operation but Hodson insisted that KHOD(FM) must stay on the air to serve Raton, New 
Mexico.  
5. On July 1, 2008, the Denver agent contacted Hodson and inquired about KHOD(FM)'s on 
air status.  Hodson stated KHOD(FM) was still on the air and the Denver agent verbally warned Hodson 
about continued KHOD(FM) operation.
6. On October 7, 2008, and October 9, 2008, the Denver Office received telephone 
complaints concerning interference to home electronic entertainment equipment ("HEEE") from nearby 
businesses.  The complainants alleged that the interference started on October 6, 2008, and that 
KHOD(FM) could be heard across the entire FM band.  
7. On November 17, 2008, after determining that the KHOD(FM)’s construction permit was 
in "Off Air" status, and that no STA, waivers, or authorization, had been granted to Hodson to operate 
KHOD(FM), the Denver Office issued a NAL in the amount of $10,000 to Hodson.6 In the 2008 NAL, the 
Denver Office found that Hodson apparently willfully and repeatedly violated Section 73.1620 of the 
Rules7 by operating KHOD(FM) at variance from its authorization.  Hodson filed a response on December 
19, 2008, arguing that it has filed applications and STA requests to legitimize its operation; that it should 
be treated as a small business concern; and that it lacks the ability to pay the proposed forfeiture amounts.   
8. On December 10, 2008, a Denver agent again investigated KHOD(FM)'s operation.  The 
agent observed that the station was in operation and was being operated from a location in Raton, New 
  
4 Hodson filed a petition for reconsideration of the modification application dismissal on July 13, 2009.
5 The agent also noted that the station was being operated with a power level, antenna height, and antenna structure 
at variance from its construction permit.  Specifically, KHOD(FM) operated with less than Class C FM facilities by 
operating with less than 20 watts transmitter power output, an ERP less than 82 kW, and operated from a building 
rooftop versus the authorized antenna structure.
6 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932800001 (Enf. Bur., Western Region, Denver 
Office, released November 17, 2008).  
7 47 C.F.R. § 73.1620.
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Mexico, approximately 34 miles northwest of its authorized location in Des Moines, New Mexico.8  
9. On December 11, 2008, the Denver agent inspected KHOD(FM) and observed that the 
station continued to operate from the Raton, New Mexico, studio/transmitter site.  The inspection 
revealed that, among other matters, KHOD (FM) had no STA/waiver to operate on-air, or to operate from 
its current location, and transmitted spurious signals on approximately 103.8 MHz and 106.7 MHz at -38 
to -42 dB below KHOD's fundamental frequency of 105.3 MHz. The agent interviewed the owner, an 
employee and a contractor of Hodson Broadcasting.  Hodson acknowledged that the KHOD(FM) signal 
in Raton, New Mexico, did not reach Des Moines, New Mexico, the community of license for the 
KHOD(FM) construction permit. The agent warned Hodson concerning the unauthorized operation.  
Hodson voluntarily shut down the transmitter and stated that he would attempt to obtain a STA from the 
Commission to resume operation.  On December 29, 2008, Hodson filed an STA request with the 
Commission.9 That request was denied on April 17, 2009.
10. Reports received by the Denver Office revealed that KHOD(FM) continued to operate on 
or about January 2, 2009, through February 4, 2009, and again from February 18, 2009, through March 
20, 2009. 
11. On April 21, 2009, the Denver Office issued a NAL in the amount of $10,000 to 
Hodson.10 In the 2009 NAL, the Denver Office found that Hodson apparently willfully and repeatedly 
violated Section 73.1620 of the Rules11 by operating KHOD(FM) at variance from its authorization.  
Hodson filed a response on May 20, 2009, reiterating its arguments that it has filed applications and STA 
requests to legitimize its operation; that it should be treated as a small business concern; and that it lacks 
the ability to pay the proposed forfeiture amounts.
12. On October 3, 2009, investigation by agents from the Denver Office revealed that Hodson 
continued to operate KHOD(FM) in Raton, New Mexico, at variance with the terms of its construction 
permit and Section 73.1620 of the Rules.   
III. DISCUSSION
13. The proposed forfeiture amount in this case was assessed in accordance with Section 
503(b) of the Act,12 Section 1.80 of the Rules,13 and The Commission’s Forfeiture Policy Statement and 
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines.14 In examining the 
  
8 The agent also noted that the station was being operated with a power level, antenna height, and antenna structure at 
variance from its construction permit BNPH-20060309ADA.  Specifically, KHOD(FM) operated with less than Class 
C FM facilities by operating with less than 20 watts transmitter power output, and operated from a building rooftop 
versus the authorized antenna structure.
9 See File No. BSTA-20081229ACK, denied April 17, 2009.  Hodson filed a petition for reconsideration of the STA 
request denial on May 19, 2009.
10 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932800004 (Enf. Bur., Western Region, Denver 
Office, released April 21, 2009).  
11 47 C.F.R. § 73.1620.
12 47 U.S.C. § 503(b).
13 47 C.F.R. § 1.80.
14 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
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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.15
14. In its responses, Hodson details its efforts and difficulties in attempting to secure a 
construction permit and to construct KHOD(FM), including its filing of an allocation petition, 
participating in competitive bid auctions, dealing with engineering and siting issues, and the filing of the 
modification application and STA request.  Despite the long and varied explanations contained in 
Hodson’s responses, Hodson has provided no evidence that it has any authority to actually operate 
KHOD(FM) and has not produced any authorization conferring authority on Hodson to operate 
KHOD(FM) at variance from its construction permit 
15. Section 73.1620 of the Commission's rules provides, in pertinent part, that program tests 
may be conducted by permittees, upon completion of construction, so long as the Commission is notified 
of the program tests and a license application is filed within 10 days thereafter.16 However, a special 
operating condition/ restriction was placed on the KHOD(FM) construction permit which states "[t]he 
automatic program test provisions of Section 73.1620 of the Commission's rules do not apply in this case.  A 
formal request for program test authority must be filed in conjunction with FCC Form 302-FM, application 
for license, before program tests will be authorized."17  Moreover, the facilities tested must have been 
constructed in accordance with the terms of the construction permit and the technical provisions of the 
application in order to avert air navigation hazards and avoid interference to other broadcast stations.18
Otherwise, the station is subject to revocation of license or permit, or imposition of a forfeiture.19 Review 
of the Commission’s databases reveals that at no time since the grant of the KHOD(FM) construction 
permit in 2006, has Hodson been given program test authority, or any authority to operate KHOD(FM).
16. Hodson also attempts to justify its operation of KHOD(FM) by arguing that the operation 
was actually “equipment tests” pursuant to Section 73.1610 of the Rules which states that “[d]uring the 
process of construction of a new broadcast station, the permittee, after notifying the FCC in Washington, 
D.C. may, without further authority from the FCC, conduct equipment tests for the purpose of making 
such adjustments as may be necessary to assure compliance with the terms of the construction permit, the 
technical provisions of the application therefore, the rules and regulation and the applicable engineering 
standards.” 20 We find that Hodson is incorrect in this assertion.  Section 73.1610(a) allows equipment 
tests to “assure compliance with the terms of the construction permit.”  Hodson has not constructed 
KHOD(FM) to conform with the terms of the construction permit.  Hodson has constructed KHOD(FM) 
34 miles away from its permitted site, at a lower height above ground level and with a lower effective 
radiated power, in an attempt to cover a different community of license than the one assigned to 
KHOD(FM) in its construction permit.  We therefore find that Section 73.1610(a) did not confer any 
authority on Hodson to operate KHOD(FM) at variance with its construction permit.
  
15 47 U.S.C. § 503(b)(2)(E).
16 47 C.F.R. § 73.1620.
17 KHOD(FM) Construction Permit, granted June 28, 2006.
18 47 C.F.R. § 73.1620; 47 U.S.C. § 319(c).
19 See 47 U.S.C. §§ 312(a)(2), 319(c), and 503(b)(1)(A) (forfeiture appropriate for willful or repeated failure to 
comply substantially with the terms and conditions of any permit or other authorization issued by the Commission).
20 47 C.F.R. § 73.1610(a).
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17. Hodson did file a modification application and STA request aimed at obtaining approval 
to operate with the facilities Hodson constructed for KHOD, both of which have been dismissed or 
denied.  In any event, neither the filing of a modification application21 nor STA request, 22 nor the filing of 
a petition for reconsideration conferred any operational authority on Hodson to operate KHOD(FM).23  
18. Hodson also questions the amount of the forfeitures proposed against it.  We find no 
error in the amounts proposed by the Denver Office.  In the past, the amount of $10,000 has been 
proposed against a broadcast station permittee for operating at variance from its construction permit when 
the permittee had constructed a station at a lower power and a lower antenna height than authorized. 24  
Hodson not only constructed KHOD(FM) at a lower power and lower antenna height, but also at a 
location 34 miles away from its authorized site.  Hodson also argues that it should be treated as a small 
business in accordance with Section 223 of the Small Business Regulatory Fairness Act of 1996 
(“SBFRA”),25 and Section 603 of the Regulatory Flexibility Act (“RFA”).26 We find that Hodson has 
been afforded the analysis required pursuant to the Commission’s Rules and precedent.27 In both the 
2008 NAL and the 2009 NAL, the Denver Office stated that it applied Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement") as well as Section 1.80 of the Commission’s Rules,28 to the facts in each 
NAL before determining the appropriate forfeiture amount to proposes.  The Commission has previously 
held that its policies, as detailed in the Forfeiture Policy Statement, comply with Section 223 of the 
SBRFA.29 In addition, when enacting the Forfeiture Policy Statement, the Commission detailed its 
  
21 See 47 C.F.R. § 73.1690(b) (providing that modifications, such as those made by Hodson to its operation, may be 
made only after the grant of a construction permit by the Commission). See also Pacifica Broadcasting Company, 18 
FCC Rcd 22347 (EB 2003).
22 See 47 C.F.R. § 73.1635 (providing that special temporary authority must be sought to permit the operation of a 
broadcast facility for a limited period at variance from its authorization, and that authority must be received prior to the 
commencement of such operation).
23 See A-O Broadcasting Corporation, 23 FCC Rcd 603, 615 (2008) (the filing of a petition for reconsideration of the 
dismissal of  license-to-cover and license renewal applications had no impact on the effectiveness of those actions); see 
also 47 C.F.R. § 1.106(n) (the filing of a petition for reconsideration shall not excuse any person from complying with 
or obeying any decision, order or requirement of the Commission, or operate in any manner to stay or postpone the 
enforcement thereof).
24 See Lauren A. Colby, Esq., 21 FCC Rcd 1248 (2006).
25 Pub.L.No. 104-121, § 223, 110 Stat at 862. 
26 5 U.S.C. § 603.
27 In a footnote in each of its responses, Hodson invokes Section 257 of the Act, 47 U.S.C. § 257, and argues that the 
proposed forfeitures constitute ”yet another market entry barrier” for KHOD(FM).  We find no merit to this assertion 
and note that in the Commission’s most recent report to Congress, required by Section 257(c) of the Act, the 
Commission stated that forfeitures are assessed in accordance with Section 503(b) of the Act, Section 1.80 of the Rules, 
and the Forfeiture Policy Statement which includes an analysis, as necessary, as required by Section 223 of SBFRA. In 
the Matter of Section 257 Triennial Report to Congress, 22 FCC Rcd 21132, 21189 (2007).  
28 Forfeiture Policy Statement, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80.
29 Forfeiture Policy Statement, 12 FCC Rcd at 17109.
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compliance with the RFA, specifically Section 603 of the RFA.30  
19. Hodson argues that it lacks the ability to pay the two proposed $10,000 forfeitures and 
submits three years of tax records to support its claim. We have reviewed Hodson’s records and its 
responses.  We note that Hodson’s tax records, standing alone, may arguably support its asserted inability to 
pay argument.  While inability to pay a forfeiture is one of the downward criteria we must consider pursuant 
to the Forfeiture Policy Statement and Section 1.80, there are multiple upward criteria we must also 
consider, including, among others, intentional violation and repeated or continuous violation.  The further 
investigation by the Denver Office revealed that as of October 3, 2009, Hodson continued to operate 
KHOD(FM) in Raton, New Mexico. Hodson’s intentional violation of the rules in constructing KHOD(FM) 
at variance from its construction permit, as well as Hodson’s continuous and intentional operation of the 
station at variance from its construction permit, outweigh any evidence of its inability to pay the forfeitures.  
Applying the Forfeiture Policy Statement and Section 1.80 to the instant cases, we find that no reduction is 
warranted.  We therefore decline to decrease the forfeiture amounts and we order Hodson to file a report 
with the Denver Office detailing its compliance with its construction permit and this Order within 30 days 
of the date of this Order.
20. We have examined the responses to the 2008 NAL and 2009 NAL pursuant to the 
statutory factors above, and in conjunction with the Forfeiture Policy Statement and Section 1.80 of the 
Rules.  As a result of our review, we conclude that Hodson willfully and repeatedly violated Section 
73.1620 of the Rules.31  Considering the entire record and the factors listed above, we find that Hodson is 
liable for a $20,000 forfeiture.
IV.  ORDERING CLAUSES
21. 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, Hodson Broadcasting, IS LIABLE FOR A MONETARY FORFEITURE in the 
amount of $20,000 for willfully and repeatedly violating Section 73.1620 of the Rules.32
22. IT IS FURTHERED ORDERED THAT, within 30 days of the release of this Order, 
Hodson Broadcasting file with the District Director, Denver Office, the report required in paragraph 19 
above.
23. 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.33 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 
  
30 Forfeiture Policy Statement, 12 FCC Rcd at 17119, Appendix C.
31 47 C.F.R. § 73.1620. 
32 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4), 73.1620.
33 47 U.S.C. § 504(a).
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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. Hodson Broadcasting shall 
also send electronic notification on the date said payment is made to WR-Response@fcc.gov.
24. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First Class Mail 
and Certified Mail Return Receipt Requested to Hodson Broadcasting at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau