8. Finally, KQED, San Francisco, ETV, leapfrogs educational stations KCSM-TV, San Mateo and KTEH, San Jose (by about 13 and 41 miles, respectively). However, petitioner points out that the closer stations direct their programing to the interests of the San Mateo Junior College and San Jose State College and are restricted to this area because of the limited range of their towers. We also note that the San Mateo and San Jose educational stations, although on notice of the pendency of this proposal, have not objected. 9. Under all of the circumstances, and particularly in view of the location of the system, the minor distances vis-a-vis San Jose and Fresno, and the lack of microwave facilities, we believe that good cause for a waiver has been shown pursuant to section 74.1109 (e) (2). Accordingly, It is ordered, That the provisions of section 74.1107 of the rules Are waived and Southern Monterey County CATV Is authorized to begin operations at King City, Calif., as proposed. FEDERAL COMMUNICATIONS COMMISSION, BEN. F. WAPLE, Secretary. CONCURRING STATEMENT OF COMMISSIONER KENNETH A. Cox I concur. I still think we should adopt a 50- to 60-mile standard in lieu of the 35-mile zone proposed, and do not like to see so many waivers involving distances of the kind involved here. However, this and other actions for which I have voted as being consistent with the interim procedures specified in our December 13, 1968, notice are all unopposed. But I wish to indicate that I have not abandoned what I regard as a more reasonable standard, and reserve the right to vote for it when we conclude our rulemaking proceeding. 17 F.C.C. 2d F.C.C. 69-346 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION In the Matter of WASHINGTON, D.C. 20554 LIABILITY OF STEREOPHONIC ALASKA, INC., For Forfeiture MEMORANDUM OPINION AND ORDER BY THE COMMISSION: COMMISSIONER WADSWORTH ABSENT. 1. The Commission has under consideration (1) its notice of apparent liability dated September 17, 1968, addressed to Stereophonic Alaska, Inc., licensee of station KAMU (FM), Anchorage, Alaska, and (2) licensee's response to the notice of apparent liability dated September 20, 1968. 2. The notice of apparent liability in this proceeding was issued because of the licensee's apparent willful or repeated failure to observe the provisions of sections 73.217 and 73.265 (e) of the Commission's rules, in that the licensee began regular programing without program test authority and failed to inspect the station's transmitting equipment at least 5 days each week. The notice provided that, pursuant to section 503 (b) (1) (B) of the Communications Act of 1934, as amended, the licensee was subject to an apparent forfeiture liability in the amount of $1,000. 3. The material facts leading to the issuance of the notice of apparent liability are as follows: On June 29, 1967, licensee was notified by telegram that the Commission granted a modification of its construction permit (BMPH-9431) authorizing licensee to change the height of KAMU (FM)'s antenna, to change the location of the transmitter and antenna to 338 Denali Street, Anchorage, Alaska, and to increase the station's power to 3.5 kw. Thereafter, licensee submitted no further applications until its attorney, by letter dated September 13, 1967, requested temporary authority for licensee to operate with its new facilities. Subsequently, on September 14, 1967, licensee filed an application (BPH-5961) for a construction permit to replace its expired construction permit (i.e., BPH-5532 as modified by BMPH-9431). In this application licensee stated that it had misunderstood the Commission's telegram of June 29, 1967, and assumed that authority to construct new facilities constituted authority to operate them. Licensee also stated that it constructed the new facilities and commenced operation with them on July 5, 1967, and that it was not aware that it was operating without authority until September 12, 1967. 4. By telegram dated September 18, 1967, the Commission notified licensee that its application (BHP-5961) to replace its expired construction permit (BHP-5532 as modified by BMPH-9431) had been granted and, thereafter, by telegram dated September 19, 1967 licensee was granted temporary authority to operate its facilities as specified therein. Subsequently, on Septeniber 29, 1967, the licensee filed an application for a license to cover its construction permit (BLH-3900). This application was incomplete. Pending receipt of an amendment to its application furnishing complete proof of performance data and other information, licensee's temporary authority to operate its new facilities was extended to October 18, 1967, and was again extended to November 2, 1967. However, between September 29, 1967, and January 13, 1968, licensee failed to file the necessary amendment to its application for license. In the meantime, on November 29, 1967, KAMU (FM) was inspected and thereafter licensee was cited in an official notice of violation dated December 5, 1967, for 12 violations of the Commission's rules, including the following: Section 73.265 (e): Failure to have a complete inspection of all transmitting equipment in use at least once each day, 5 days each week, with an interval of no less than 12 hours between successive inspections as required. 5. In response to the citation notice, by letter dated December 5, 1967, licensee stated that its part-time first class operator was a fulltime employee of Midnight Sun Broadcasting Co. and that he was working almost around the clock in the Anchorage market as Midnight Sun had sent two of their engineers to the Fairbanks area to install color television. Licensee also stated that it was sure that in the future inspections would be made as required. Subsequently, in a letter dated July 15, 1968, licensee advised the Commission that it failed to comply with the provisions of section 73.265 (e) throughout the last quarter of 1967. 6. Meanwhile, when the amendment to licensee's license application was not filed, the Commission, by telegram dated January 8, 1968, inquired of licensee as to whether the station was in operation and, if so, by what authority. In reply, licensee's president recited the difficulty he had encountered in acquiring and continuing the operation of KAMU (FM) after the former principal stockholder had decided to declare bankruptcy. Licensee's president also stated that in "*** the excitement of getting] permission to move and the setting up under one roof" he "inadvertently read something into the construction permit which was not there***" and operated without “* * * proper authorization from July until September." Licensee's president stated further that KAMU (FM) had been authorized to operate under special authority to November 2, 1967, and although he had planned to file application for a license to cover its construction permit, he failed to do so because licensee's part-time engineer, who worked full-time at KENI-TV, could not prepare all the information for the application since he was working unusually long hours. In addition, licensee's president stated that since October, November, and December was the peak selling season he was engaged in selling, as well as many other station operations, and consequently, he "*** just flat wasn't paying attention." Subsequently, by letter dated January 13, 1968, licensee filed the information necessary for the grant of a license to cover its construction permit. Accordingly, on January 23, 1968, licensee was granted program test authority and, thereafter, on June 11, 1968, licensee was granted a license for its new facilities. 7. As previously noted, licensee was issued a notice of apparent liability on September 17, 1968, for its apparent willful or repeated violation of the provisions of sections 73.217 and 73.265 (e) of the Commission's rules. In response to the notice of apparent liability, by letter dated September 20, 1968, licensee admits the violations and requests that the Commission reconsider the amount of the forfeiture. In support of its request, licensee states that at the time the violations occurred its main concern was to keep the station alive, that it did not willfully violate the Commission's rules, and that the violations were repeated only because of *** [licensee's] lack of understanding and knowledge of the F.C.C. Licensee also stated that the forfeiture amount, in view of the station's financial condition, could put an end to KAMU (FM). 8. We have carefully considered licensee's reply and the circumstances surrounding the violations in this proceeding, including licensee's financial condition, but we are not persuaded to remit or reduce the amount of its apparent liability for forfeiture. Section 73.217 of the Commission's rules provides that [p]rogram tests shall not commence until specific Commission authority is received. Similarly, the construction permit form which is used for authorizing the construction of FM broadcast stations and facility changes such as were involved here specifically states that program tests shall be conducted only in accordance with the provisions of section 73.217. The facts recited above disclosed however that KAMU (FM) was operated without program test authority from July 5, 1967, to September 19, 1967, and from November 2, 1967, to January 23, 1968. It is evident there fore that the licensee was in repeated violation of section 73.217 of the rules and such violations will not be excused because licensee *** just flat wasn't paying attention. Nor will lack of knowledge of the Commission or its rules relieve a licensee of responsibility for repeated violations. Furthermore, it is also evident that the licensee was in repeated violation of section 73.265 (e) of the rules for, by licensee's own admission, it failed to conduct the required transmitting equipment inspections throughout ***the last quarter of 1967 *** Lastly, we considered licensee's financial condition prior to determining the amount of apparent liability in this case. 9. In view of the foregoing, It is ordered, That Stereophonic Alaska, Inc., licensee of station KAMU (FM), Anchorage, Alaska, Forfeit to the United States the sum of $1,000 for repeated failure to observe the provisions of sections 73.217 and 73.265 (e) of the Commission's rules. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument drawn to the order of the Treasurer of the United States. Pursuant to section 504 (b) of the Communications Act of 1934, as amended, and section 1.621 of Commission rules, an application for mitigation or remission of forfeiture may be filed within 30 days of the date of receipt of this memorandum opinion and order. 10. It is further ordered. That the secretary of the Commission send a copy of this memorandum opinion and order by certified mail— return receipt requested to Stereophonic Alaska, Inc., licensee of station KAMU (FM), Anchorage, Alaska. FEDERAL COMMUNICATIONS COMMISSION, 17 F.C.C. 2d |