Federal Communications Commission DA 13-2046 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Steckline Communications, Inc. Licensee of Station KGSO Wichita, Kansas ) ) ) ) ) ) ) File No.: EB-FIELDSCR-12-00005157 NAL/Acct. No.: 201432560001 FRN: 0009951286 Facility ID: 53150 NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER Adopted: October 23, 2014 Released: October 24, 2013 By the District Director, Kansas City Office, South Central Region, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture and Order (NAL), we find that Steckline Communications, Inc. (Steckline), licensee of AM Station KGSO (Station), in Wichita, Kansas, apparently willfully and repeatedly violated Sections 73.62, 73.1560(a), 73.1745(a), and 73.3526 of the Commission’s rules (Rules)1 by failing to maintain required directional patterns within prescribed parameters, operating with more than authorized power, and failing to maintain and make available a complete public inspection file. We conclude that Steckline is apparently liable for a forfeiture in the amount of twenty one thousand dollars ($21,000). In addition, we direct Steckline to submit, no later than thirty (30) calendar days from the date of this NAL, a statement signed under penalty of perjury stating that it is operating its Station as authorized. II. BACKGROUND 2. Station KGSO is authorized to operate with 5400 watts during the day and 1081 watts at night.2 It is also required to utilize different directional patterns for its antenna during the day and night.3 On October 21 and 22, 2012, in response to an anonymous complaint of overpower operations, an agent from the Enforcement Bureau’s Kansas City Office (Kansas City Office) monitored the field strength of Station KGSO’s transmissions before and after sunset and before and after sunrise.4 The agent observed no noticeable change in field strength on either day. 3. On October 22, 2012, an agent from the Kansas City Office, accompanied by Steckline’s owner and the Station’s manager, inspected the main studio and transmitter site of Station KGSO during regular business hours. At the beginning of the inspection, the agent observed that Station KGSO’s transmitter was set to operate in daytime mode with 7638 watts output power or 141 percent of authorized daytime power. During the inspection, the Station owner reduced Station KGSO’s daytime transmitter output power to the authorized 5400 watts. In addition, when testing the Station’s transmitters in day and 1 47 C.F.R. §§ 73.62, 73.1560(a), 73.1745(a), 73.3526. 2 See License File No. BR-2657. 3 See License File Nos. BR-2657, BS-1994A. 4 On October 21, 2012, sunset in Wichita, Kansas was 6:43 p.m. On October 22, 2012, sunrise in Wichita, Kansas was 7:45 a.m. Federal Communications Commission DA 13-2046 2 nighttime modes, the agent observed that some of the phases of the directional antenna in daytime mode deviated by more than 3 degrees and some of the sample current ratios for both modes of operation deviated by more than five percent from authorized values. Station management stated that the antenna monitor was not working properly and was last known to be functional in May 2012. Station KGSO relied on automated switching and monitoring equipment for its transmitting system and did not have an operator on duty to make adjustments to the transmitting systems. However, no alarms occurred during the inspection when the transmitter power and directional parameters were out of tolerance. After sunset on October 22, 2012, the agent monitored the field strength of Station KGSO’s transmissions and observed a noted decrease in signal strength from the previous measurements. 4. Also during that inspection, the agent from the Kansas City Office asked to inspect Station KGSO’s public inspection file. The agent observed that none of the documents that the Station called “issues programs lists” contained any information regarding the programs aired to address the listed community issues and that the Station had not filed any “issues programs lists” at all for the 3rd quarter of 2012. 5. On November 8, 2012, the Kansas City Office issued a Notice of Violation (NOV) to Steckline, regarding, among other things, Station KGSO’s overpower operations, its failure to take antenna monitoring point readings, and public inspection file violations.5 On November 27, 2012, Steckline responded to the NOV and did not deny the overpower or public inspection file violations.6 Steckline explained that its engineer confused Station KGSO with another Steckline-owned station, Station KQAM, and improperly programmed Station KGSO with Station KQAM’s higher daytime operating power. Steckline noted that Station KGSO used to be assigned call sign KQAM. Steckline also stated that it determined after the inspection that the memory in its automated switching and monitoring unit had been “tampered with and wiped out,”7 which prevented it from automatically switching the transmitter from day to nighttime operation and from sending out alarms when the Station operated out of tolerance.8 Steckline stated that when this defect was discovered, it began manually changing between day and nighttime operation and reprogrammed the unit within 48 hours. Finally, Steckline stated that it was unaware of the requirement to include lists of the programs aired, as well as the dates and times associated with those programs, in its issues programs lists and that it had added such information to its current and previous issues programs lists. Steckline did, however, deny that its antenna monitor was malfunctioning and asserted an engineer had checked the antenna monitor and found it working. III. DISCUSSION 6. 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.9 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.10 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,11 and the Commission has so 5 Steckline Communications, Inc., Notice of Violation, V201332560004 (Enf. Bur. Nov. 8, 2012). 6 Letter from Greg Steckline, President, Mid-America Network, to Ronald D. Ramage, District Director, Kansas City Office, South Central Region, Enforcement Bureau, at 3 (Nov. 27, 2012). 7 Id. at 2. Steckline did not provide any information for how long the unit had been in this damaged condition. 8 Id. 9 47 U.S.C. § 503(b). 10 47 U.S.C. § 312(f)(1). Federal Communications Commission DA 13-2046 3 interpreted the term in the Section 503(b) context.12 The Commission may also assess a forfeiture for violations that are merely repeated, and not willful.13 The term “repeated” means the commission or omission of such act more than once or for more than one day.14 A. Failure to Operate within the Parameters of the Licenses 7. Section 73.1745(a) of the Rules states that “[n]o 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 in this part.”15 i. Operation with more than authorized power and incorrect mode 8. Section 73.1560(a) of the Rules states that “the antenna input power of an AM station . . . must be maintained as near as is practicable to the authorized antenna input power and may not be less than 90% nor more than 105% of the authorized power.”16 Station KGSO is authorized to operate with 5400 watts during the day and 1081 watts at night. Because Station KGSO’s automated switching equipment was not functioning and was unable to switch from day to nighttime operations without manual intervention, Station KGSO operated with 7638 watts or 707 percent of authorized nighttime power in daytime mode on the evening of October 21, 2012 and in the early morning hours of October 22, 2012. The overpower operations were confirmed after the FCC inspection when the agent monitored Station KGSO when it was operating with authorized nighttime power and found the field strength noticeably lower than previous measurements. 9. Steckline does not dispute that it operated Station KGSO with more than authorized power, explaining that it mistakenly programmed Station KGSO with Station KQAM’s transmitter output power. Commission precedent, however, has established that a violator can be held liable for violations resulting from employee mistakes.17 Based on the evidence before us, we find that Steckline apparently willfully and repeatedly violated Sections 73.1560(a) and 73.1745(a) of the Rules by operating Station KGSO with more than authorized power and operating in daytime mode at night. 11 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 . . . .”). 12 See, e.g., Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (1991), recons. denied, 7 FCC Rcd 3454 (1992). 13 See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable television operator’s repeated signal leakage). 14 Section 312(f)(2) of the Act, 47 U.S.C. § 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.” See Callais Cablevision, Inc., 16 FCC Rcd at 1362, para. 9. 15 47 C.F.R. § 73.1745(a). 16 47 C.F.R. § 73.1560(a). 17 See, e.g., Tidewater Communications, LLC, Order on Review, 25 FCC Rcd 1675 (2010) (citing North Country Repeaters, Forfeiture Order, 19 FCC Rcd 22139 (Enf. Bur. 2004)); PBJ Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088 (1988); Standard Communications Corp., Memorandum Opinion and Order, 1 FCC Rcd 358 (1986). Federal Communications Commission DA 13-2046 4 ii. Failure to maintain directional parameters within prescribed limits 10. Section 73.62 of the Rules states that “(a) each AM station operating a directional antenna must maintain the relative amplitudes of the antenna currents, as indicted by the antenna monitor, within 5% of the values specified on the instrument of authorization. Directional antenna relative phases must be maintained within 3 degrees of the values specified on the instrument of authorization. (b) In the event of a failure of system components, improper pattern switching or any other event that results in operation substantially at variance from the radiation pattern specified in the instrument of authorization for the pertinent time of day, operation must be terminated within three minutes unless power can be reduced sufficiently to eliminate any excess radiation.”18 11. On October 22, 2012, an agent from the Kansas City Office observed that some of the phase indications for Station KGSO’s directional antenna in daytime mode deviated by more than three degrees and some of the sample current ratios for both day and nighttime modes of operation deviated by more than five percent from authorized values. At the time of inspection, station management claimed there was a problem with the antenna monitor, so the agent did not consider the observed readings accurate and cited Steckline for failing to take measurements at the monitoring points despite known problems with the antenna monitor. Steckline denies stating that the antenna monitor was not working and asserts that the Station’s engineer resigned in May 2012 and that there had not been regular maintenance on the Station’s equipment prior to the FCC inspection. Steckline also asserts that a contract engineer inspected the antenna monitor before the inspection and said that everything was operating correctly.19 12. Even if the antenna monitor was operating correctly, on October 2120 and 22, 2012, Station KGSO operated in daytime mode during the day when the phase indication for the directional antenna deviated by more than five degrees and when current ratios deviated by more than three degrees. In other words, Station KGSO operated substantially at variance from the authorized directional parameters and did not check monitoring points, suspend operations, or reduce power to prevent interference. Moreover, with no working monitoring or alarm system and no operators monitoring the station parameters, Steckline has no evidence regarding when its directional antenna last operated within authorized parameters. Based on the evidence before us, we find that Steckline apparently willfully and repeatedly violated Sections 73.62 and 73.1745(a) of the Rules by failing to maintain the directional parameters of its antenna within prescribed limits. B. Failure to Maintain and Make Available a Complete Public Inspection File 13. Section 73.3526(a)(2) of the Rules states that “[e]very permittee or licensee of an AM, FM, TV or a Class A station in the commercial broadcast services shall maintain a public inspection file containing the material” set forth in that section.21 Section 73.3526(e)(12) of the Rules states that commercial AM and FM broadcast stations must retain in the file “every three months a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period . . . . The lists described in this paragraph shall be retained in the public inspection file until final action has been taken on the station’s next license renewal application.”22 The public inspection file 18 47 C.F.R. § 73.62. 19 Steckline was unable to provide written evidence that the contract engineer inspected the antenna monitor or confirmed that the antenna monitor was operating correctly. 20 Station KGSO was unable to switch automatically from day to nighttime mode. Thus, on October 21, 2012, it operated in daytime mode the entire day. See supra para. 9. 21 47 C.F.R. § 73.3526(a)(2). 22 47 C.F.R. § 73.3526(e)(12). Federal Communications Commission DA 13-2046 5 must be maintained at the main studio of the station,23 and must be available for public inspection at any time during regular business hours.24 14. On October 22, 2012, an agent from the Kansas City Office asked to inspect Station KGSO’s public inspection file during regular business hours. The public inspection file provided contained documents that the Station called “issues programs lists”—except for the third quarter of 2012— but these documents did not contain any lists or information regarding the programs aired to address community issues. The “issues programs lists” only contained lists of community issues, as opposed to lists of the programming the Station had aired on those issues. In response to the NOV, Steckline stated that it did not realize that its issues programs lists should contain such information and that it has since supplemented those lists. Based on the evidence before us, we find that Steckline apparently willfully and repeatedly violated Section 73.3526 of the Rules by failing to maintain a complete public inspection file for Station KGSO and apparently willfully violated Section 73.3526 by failing to make available a complete public inspection file for Station KGSO. C. Proposed Forfeiture and Reporting Requirement 15. 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, for failure to maintain directional pattern within prescribed parameters is $7,000, and for violation of public file rules is $10,000.25 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.26 Applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that Steckline is apparently liable for a total forfeiture in the amount of $21,000, consisting of the following: $4,000 for the overpower operation, $7,000 for failure to maintain the directional pattern within prescribed limits, and $10,000 for failure to maintain and make available a complete public inspection file. 16. We further order Steckline to submit a written statement, pursuant to Section 1.16 of the Rules,27 signed under penalty of perjury by an officer or director of Steckline, stating that it is operating its Station within authorized power levels and directional parameters. This statement must be provided to the Kansas City Office at the address listed in paragraph 19 within thirty (30) calendar days of the release date of this NAL. IV. ORDERING CLAUSES 17. 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, Steckline Communications, 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 73.62, 73.1560(a), 73.1745(a), and 73.3526 of the Rules.28 23 47 C.F.R. § 73.3526(b). 24 47 C.F.R. § 73.3526(c). 25 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), recons. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80. 26 47 U.S.C. § 503(b)(2)(E). 27 47 C.F.R. § 1.16. 28 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80, 73.62, 73.1560(a), 73.1745(a), and 73.3526. Federal Communications Commission DA 13-2046 6 18. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission’s rules, within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture and Order, Steckline Communications, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 19. IT IS FURTHER ORDERED that Steckline Communications, Inc. SHALL SUBMIT a written statement, as described in paragraph 16, within thirty (30) calendar 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, South Central Region, Kansas City Office, 520 N.E. Colbern Rd., 2nd Floor, Lees Summit, MO 64086-4711. Steckline Communications, Inc. shall also e-mail the written statement to SCR-Response@fcc.gov. 20. Payment of the forfeiture must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above. Steckline Communications, Inc. shall also send electronic notification on the date said payment is made to SCR- Response@fcc.gov. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted.29 When completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters “FORF” in block number 24A (payment type code). Below are additional instructions you should follow based on the form of payment you select: ? Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with the completed Form 159) must be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197- 9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2- GL, 1005 Convention Plaza, St. Louis, MO 63101. ? Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated. ? Payment by credit card must be made by providing the required credit card information on FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment. The completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. 21. Any request for making full payment over time under an installment plan should be sent to: Chief Financial Officer—Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554.30 If you have questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov. 22. 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.31 Mail the written statement to Federal Communications Commission, Enforcement Bureau, South Central Region, Kansas City Office, 520 N.E. Colbern Rd., 2nd 29 An FCC Form 159 and detailed instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. 30 See 47 C.F.R. § 1.1914. 31 47 C.F.R. §§ 1.16, 1.80(f)(3). Federal Communications Commission DA 13-2046 7 Floor, Lees Summit, MO 64086-4711, and include the NAL/Acct. No. referenced in the caption. Steckline Communications, Inc. also shall email the written response to SCR-Response@fcc.gov. 23. 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. 24. 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 First Class Mail to Steckline Communications, Inc. at 1632 South Maize Road, Wichita, KS 67209 and 1300 North 17th Street, 11th Floor, Arlington, VA 22209. FEDERAL COMMUNICATIONS COMMISSION Ronald D. Ramage District Director Kansas City Office South Central Region Enforcement Bureau