Federal Communications Commission Record 10 FCC Red No

DA 94-1602 Federal Communications Commission Record 10 FCC Red No. 1

Clarification"). To satisfy this requirement, there must be a Before the "meaningful management and staff presence" at the main Federal Communications Commission studio on a full-time basis during regular business hours. 3 Washington, D.C. 20554 FCC Red at 5026; see also Jones Eastern of the Outer Banks, Inc., 6 FCC Red 3615 (1991), clarified, 1 FCC Red 6800 (1992). Finally, the "station must equip the main studio LETTER with production and transmission facilities that meet the December 23, 1994 applicable standards [and] maintain continuous program transmission capability." Main Studio Clarification, 3 FCC Red at 5026. Released: January 5, 1995 In response to our Notice and inquiry. Station KQQK indicated that it maintains a main studio located on Pelican IN REPLY REFER TO: Island, near Galveston (the "GPI Studio"), with an auxil 8310-SB iary studio at 6006 Bellaire Blvd., Houston, Texas. In sup 94060488 port, Station KQQK provides a copy of a December 1, 1989, agreement with Harbor Broadcasting Co., Inc., li censee of Station KGBC(AM), which permits Station CERTIFIED MAIL-RETURN RECEIPT REQUESTED KQQK to rent studio space for the "purpose of broadcasts from such studio at such times as KQQK may elect." The KQQK, Inc., Licensee agreement specifies that Station KQQK will "pay for a Radio Station KQQK (FM), Galveston, TX broadcast quality telephone line from such studio" to its P.O. Box 2722 transmitter or, alternatively, "establish a microwave link to Houston, TX 77252 the transmitter." Finally, the agreement states that Station KQQK will "locate its public file at KGBC" and that KGBC "personnel will be available to answer questions Dear Licensee: relating to KQQK during regular business hours." Accord ing to the agreement, such personnel will be "considered This letter constitutes a NOTICE OF APPARENT LI employees of KQQK." ABILITY for a FORFEITURE pursuant to Section 503(b) Although Station KQQK has provided some evidence of the Communications Act of 1934. as amended, for viola that personnel have been located on a full-time basis at the tion of the Commission©s Main Studio Rule, 47 C.F.R. § GPI Studio, at least in part for the purposes of staffing 73.1125. This action is taken under authority delegated to Station KQQK, it appears that the station has not main the Chief of the Mass Media Bureau by Section 0.283 of tained a meaningful management presence at the studio. the Commission©s Rules. Station KQQK©s response to our letter of inquiry points to On November 25 and December 20, 1991, personnel of an August 1, 1991, letter confirming the appointment of the Commission©s Field Operations Bureau (FOB) inspect Mr. Vandy V. Anderson, President of Harbor Broadcasting ed the (facilities of Station KQQK(FM), Galveston. Texas. Company, as Assistant Station Manager in charge of the Subsequent to this investigation, the Commission issued an GPI Studio. Station KQQK, however, has not provided Official Notice of Violation, finding, in part, that the sta sufficient evidence to establish that Mr. Anderson did, in tion was in violation of the Commission©s Main Studio fact, hold a managerial position at Station KQQK. Al Rule. On January 31, 1992, Station KQQK responded to though our May 16, 1994, inquiry specifically asked the this Notice and on May 16, 1994, a follow-up letter of licensee to explain in full Mr. Anderson©s role in operating inquiry was issued. This follow-up letter questioned wheth Station KQQK and to provide documentation as to his er Station KQQK maintained adequate staffing at its main employment status, the licensee did not give any descrip studio. Specifically, this letter requested the names, titles tion of Mr. Anderson©s duties as Assistant Station Manager. and responsibilities of Station KQQK©s main studio per Rather, the licensee only indicated that Mr. Anderson was sonnel. Based upon the information obtained by FOB per available to answer questions related to Station KQQK and sonnel, and the responses of KQQK, Inc. to the Official had "the ability, through the licensee©s toll-free number, to Notice of Violation and subsequent letter of inquiry, it contact immediately various KQQK personnel at the auxil appears that Station KQQK has repeatedly been and con iary studio." No indication is given whether Mr. Anderson tinues to be in violation of Section 873.1125 of the Com was authorized to make typical managerial decisions per mission©s Rules. taining to facilities, equipment, programming, sales or Section 73.1125 of the Commission©s Rules requires a emergency procedures. See Jones Eastern of the Outer broadcast licensee to maintain a main studio within its Banks, Inc., clarified, 1 FCC Red at 6801. Absent such a principal community contour "which has the capability showing, we cannot find any confirmation that there was a adequately to meet its function ... of serving the needs significant management presence at the GPI studio. 1 and interests of the residents of the station©s community of Moreover, despite the fact that we asked the licensee to license." Main Studio and Program Origination Rules (Clari provide the names, titles and responsibilities of Station fication), 3 FCC Red 5024, 5026 (1988) ("Main Studio KQQK©s personnel assigned to the GPI studio, Station

1 Were we to accept Station KQQK©s assertion that Mr. An Enforcement Division, Mass Media Bureau, to Michael R. derson held a managerial position at Station KQQK, we would Birdsill, DA 92-1607 (December 2, 1992). However, since we be concerned with possible cross-interest implications because of find that no managerial presence existed at Station KQQK©s GPI Mr. Anderson©s connections with Station KGBC. See Letter Studio, we need not address this issue. from Edythe Wise, Chief, Complaints & Investigations Branch,

132 10 FCC Red No. 1 Federal Communications Commission Record DA 94-1602

KQQK makes no showing whatsoever regarding a manage may be pertinent." 47 C.F.R § 1.80(f)(3). Other relevant ment presence at the GPI Studio before the August 1, provisions of Section 1.80 are summarized in the attach 1991, appointment of Mr. Anderson as Assistant Station ment to this Notice. Manager. Additionally. Station KQQK has informed the Additionally, because it appears that you are still in Commission that Mr. Anderson retired in November 1993. violation of the main studio rule. Section 73.1125. you His duties were apparently assumed by Mr. Steven Cowan, must take immediate remedial measures to bring yourself the new General Manager of Station KGBC. but, by the into compliance. Within thirty (30) days of the date hereof, licensee©s own admission. Mr. Cowan has not been for you must provide documentation to this office outlining mally appointed as Assistant Station Manager for Station the steps you have taken to bring yourself in compliance. KQQK, nor has the station provided any evidence that Mr. Since this is an ongoing violation, you are hereby notified Cowan is authorized to make managerial decisions. that further similar forfeitures for additional periods of It appears that from at least April 17, 1990 (the date its noncompliance may be issued. last renewal application was granted), to the present. Sta tion KQQK has repeatedly violated Section 73.1125 of the Sincerely, Commission©s Rules by failing to maintain a significant management presence at the main studio location. With respect to this violation, KQQK, Inc., is hereby advised of its apparent liability for a forfeiture of seven thousand five hundred dollars ($7,500). Roy J. Stewart The amount specified was determined after consideration Chief, Mass Media Bureau of the factors set forth in Section 503(b)(2) of the Act, taking into account the nature, circumstances, extent and gravity of the violation.2 In reaching this amount, we re Attachments viewed the precedent and compared the seriousness of Station KQQK©s main studio violations with those in other cc: Dennis F. Begley, Esq. main studio cases decided prior to the adoption of the Policy Statement, generally resulting in forfeiture amounts ranging from $5,000 to $10.000. In these cases, the for feiture amounts were determined prior to the 1989 increase in our forfeiture authority.3 In Texas Key Broadcasters, Inc., 30 FCC 2d 146 (1971), the licensee was assessed a for feiture of $5,000 for the relocation of its main studio without authority, a condition which lasted for approxi mately two years. Similarly, in International Panorama TV, Inc., 52 FCC 2d 258 (1975) a licensee was issued a $5.000 forfeiture for the unauthorized relocation of its main studio for a period of four weeks. In a more recent case. The Dalton Group, Inc., 6 FCC Red 646 (1991), the NAL and Forfeiture Order (issued prior to the 1989 increase in our forfeiture authority) imposed a $10,000 forfeiture for main studio, public inspection file, and program origination rule violations. In this case, the evidence indicates, that the licensee has been operating in violation of our main studio rule at least since April 17. 1990 (the date its last renewal application was granted), until the present. Taking into account the length of the violation, as well as the increase in our forfeiture authority, a $7500 forfeiture is warranted. In regard to this forfeiture, you are afforded a period of thirty (30) days from the date of this Notice "to show, in writing, why a forfeiture penalty should not be imposed or pay the forfeiture. Any showing as to why the forfeiture should not be imposed or reduced shall include a detailed factual statement and such documentation and affidavits as

2 In United Slates Telephone Ass©n v. FCC. No. 92-1321 (D.C. amended, to the particular facts of this case, giving due consid Cir. July 12, 1994), the court set aside our Policy Statement on eration to our past decisions that predated the Policy Statement Standards for Assessing Forfeitures, 6 FCC Red 4695 (1991), and to relevant intervening legislative changes. recon. denied 1 FCC Red 5339 (1992), revised. 8 FCC Red 6215 3 In 1989, Congress amended Section 503(b) of the Communica (1993) ("Policy Statement") , in which we had established guide tions Act. Pub. 1 No. 239, 101st Cong., 1st Sess.. 103 Stat. 2131 lines for determining appropriate forfeiture amounts for viola (1989). Among other things, the amendment increased the dol tions of various Commission Rules and statutory provisions, lar amounts of this agency©s forfeiture authority, to better serve including the main studio rule. In assessing this forfeiture, as a meaningful sanction and deterrent to others. See Budget therefore, we have undertaken to apply directly the statutory Reconciliation Act, House Conf. Rep. No. 386 at 435, reprinted factors in Section 503 (b) of the Communications Act of 1934, as in 1989 U.S. Cong. & Ad. News at 3038.

133