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                             Before the
                Federal Communications Commission
                     Washington, D.C. 20554

                               
In the Matter of                 )    File No. EB-03-CF-334
                                )
JMK Communications, Inc.         )    NAL/Acct. No. 200432340004
Licensee of Station WPWC(AM)     )    FRN 0006-1615-09
Dumfries, Virginia

                  MEMORANDUM OPINION AND ORDER

Adopted:  February 9, 2006                             Released:  
     February 14, 2006  

By the Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   By this Memorandum Opinion and Order (``Order''), we 
grant in part and deny in part the petition for reconsideration, 
filed on January 26, 2005 by JMK Communications, Inc. 
(``JMK''),1 licensee of AM Radio Station WPWC, Dumfries, 
Virginia, of the Enforcement Bureau's (``Bureau'') Forfeiture 
Order, released December 27, 2004.2  The Forfeiture Order 
imposed a forfeiture of fourteen thousand dollars ($14,000) upon 
JMK for its willful and repeated violation of Sections 
73.1745(a), 73.3526(e)(5), and 73.3526(e)(12) of the 
Commission's Rules (``Rules'')3 by operating station WPWC at 
unauthorized power levels and failing to place the most current 
ownership report and an issues/programs list in WPWC's  public 
inspection file.  

II.  BACKGROUND 

     2.   On July 2, 2003, an agent from the Commission's 
Columbia, Maryland Field Office (``Columbia Office'') conducted 
an inspection of station WPWC.  The agent found that WPWC's 
Emergency Alert System (``EAS'') equipment was installed at the 
station's unattended transmitter, and noted that its monitoring 
and transmitting functions were not available to the station's 
operators.  The agent also found that, according to the 
station's logs, WPWC operated with its daytime power and antenna 
during nighttime hours.  WPWC's authorized daytime power was 
1080 watts while its authorized nighttime power was 540 watts.  
The station's logs indicated that WPWC changed to its nighttime 
power level and antenna at 8:30 p.m. instead of the authorized 
8:15 p.m. on May 4, 2003 and from May 8 through May 19, 2003.  
The agent also discovered that JMK's public inspection file 
included neither station WPWC's most recent ownership report nor 
a current and complete issues/programs list.  On August 7, 2003, 
the Columbia Office sent a Letter of Inquiry (``LOI'') to JMK to 
clarify issues raised by the inspection concerning, inter alia, 
station logs, transmitter operating power and the public 
inspection file.  JMK responded to the LOI on August 22, 2003.

     3.   After considering JMK's response to the LOI, the 
Columbia Office issued a Notice of Apparent Liability for 
Forfeiture (``NAL'')4 to JMK in the amount of $22,000 for:  (1) 
failing to ensure that WPWC's EAS monitoring and transmitting 
functions were available and operational during the times the 
station was in operation, in apparent willful and repeated 
violation of Section 11.35(a) of the Rules;5 (2) operating at 
unauthorized power levels, in apparent willful and repeated 
violation of Section 73.1745(a) of the Rules; (3) failing to 
place into the public inspection file the most current ownership 
report, in apparent willful and repeated violation of Section 
73.3526(e)(5) of the Rules; and (4) failing to place into the 
public inspection file a complete issues/programs list in 
apparent willful and repeated violation of Section 
73.3526(e)(12) of the Rules.   

     4.   On April 5, 2004, JMK responded to the NAL.  In its 
response, which included a declaration made under penalty of 
perjury by the station's chief engineer, Alfred Hammond, JMK 
sought cancellation or reduction of the forfeiture.  After 
considering JMK's response to the NAL, including Mr. Hammond's 
declaration, the Bureau issued the underlying Forfeiture Order 
on December 27, 2004, in which it cancelled the forfeiture 
amount attributable to the EAS violation, thereby reducing the 
forfeiture amount to fourteen thousand dollars ($14,000), but 
found the remaining violations to be willful and repeated.  On 
January 26, 2005, JMK filed a petition for reconsideration of 
the Forfeiture Order.  In its petition for reconsideration, JMK 
does not dispute the background facts of the case.  With respect 
to the remaining violations, however, JMK does dispute the 
Bureau's interpretation of a pertinent question asked by the 
Columbia Office in the LOI and JMK's response thereto, as well 
as the Bureau's handling of Mr. Hammond's declaration.  

III.      DISCUSSION

     5.   The forfeiture amount in this case was assessed in 
accordance with Section 503(b) of the Communications Act of 1934 
as amended (``Act''), 6 Section 1.80 of the Rules,7 and The 
Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Rules to Incorporate the Forfeiture 
Guidelines.8  In examining JMK's petition for reconsideration, 
Section 503(b) of the Act requires that we 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 any such other 
matters as justice may require.9

     III.A.    Operating at Unauthorized Power Level Violation

     6.   Background.  Section 73.1745(a) of the Rules states 
that no broadcast station shall operate with power other than 
that specified and made a part of the license unless otherwise 
provided in Part 73 of the Rules.  JMK has been assessed a 
forfeiture for its overpower operation of Station WPWC based on 
the response it gave to an LOI question asked by the Columbia 
Office.  The Bureau has imposed forfeitures for violation of this 
rule as a licensee is expected to operate in a manner consistent 
with its license.10

     7.   At the time of the inspection, the investigating agent 
reviewed WPWC's station logs.  As a result of the agent's review 
of the logs, the Columbia Office sent an LOI to JMK, the 
licensee.  The LOI set forth the agent's observations regarding 
the station logs, which noted unvarying operating parameters, and 
inquired as to the accuracy of the logs as they related to the 
station's operation.  In its response to the LOI, JMK claimed 
that the logs accurately reflected the station's operation.  
After considering JMK's response to the LOI and the agent's 
contemporaneous observation of the station logs, the District 
Director of the Columbia Office considered the station logs to be 
accurate.  In making the determination that WPWC's station logs 
were accurate, the District Director was also determining that 
each log page that indicated that Station WPWC changed from 
daytime to nighttime power after the authorized 8:15 p.m., 
represented an overpower violation.  Thus, the District Director 
issued an NAL which included a proposed forfeiture amount of four 
thousand dollars ($4,000) for JMK's operation of station WPWC at 
excessive power levels on May 4, 2003 and from May 8 to May 19, 
2003, as was indicated by the station logs.  

     8.   On April 5, 2004, JMK filed a response to the NAL, 
which included a declaration by Mr.   Hammond.  In his 
declaration, Mr. Hammond stated that the changeover to nighttime 
power and antenna is controlled by a reliable computer and is not 
linked to manual logging.  Thus, Mr. Hammond claimed that, 
notwithstanding an inadvertent error in preparing the logs, the 
nighttime power limits were not exceeded.  The Bureau, finding 
that JMK first stated that the station logs were accurate and 
then submitted a sworn declaration that the station logs were not 
accurate, concluded it appropriate to rely on the investigating 
agent's contemporaneous observations of the station log that 
indicated the station did not switch to nighttime power at 8:15 
as required and imposed a forfeiture for WPWC's overpowered 
operation in the Forfeiture Order.

     9.   Discussion.  In its January 26, 2005 petition for 
reconsideration of the Forfeiture Order, JMK asserts that the 
Bureau misinterpreted its response to the LOI question at issue.  
JMK asserts that it did not represent that its logs were fully 
accurate.  JMK further asserts that the LOI question asked, and 
its answer, referred only to transmitter operating parameters, 
tower lights and EAS.  JMK also states that the LOI never asked 
and JMK never addressed the question of whether the station log 
accurately reflected the times of its daytime and nighttime 
operation.  We disagree.  The LOI question noted that WPWC's 
transmitter operating parameters were the same day after day.  
Transmitter operating parameters include the power levels at 
which the station is operating.  Thus, we believe that the 
operating parameters referred to in the LOI included operating 
power.  However, the issue here is whether WPWC's station logs 
were accurate as regards WPWC's changeover times between day and 
night-time power.  

     10.  We believe JMK initially indicated that WPWC's station 
logs were correct with regards to the times the station changed 
power.  However, JMK has submitted a sworn statement from Mr. 
Alfred Hammond, WPWC's chief engineer, in which he stated that he 
is ``sure the log was in error'' and that it did not reflect 
improper operation of the station.  Although we believe JMK made 
two conflicting statements regarding the accuracy of the station 
logs, we also recognize that we have no extrinsic evidence to 
definitively establish that JMK failed to change WPWC from day to 
night-time power at the required time on the days in question.  
For this reason, and given Mr. Hammond's sworn declaration, we 
cancel the portion of the forfeiture that had been attributed to 
the overpower violation.

     11.  Section 73.1800 provides that all station entries, 
whether required or not, must accurately reflect station 
operation.11  JMK, through Mr. Hammond's declaration, has 
acknowledged that WPWC's station logs were not accurate with 
respect to its changeover times on the subject dates.  We remind 
JMK of its obligation, as a Commission licensee, to exercise due 
diligence when answering questions in response to a Commission 
inquiry.  Further, we believe that an admonition is warranted for 
JMK's violation of Section 73.1800 by failing to accurately 
reflect WPWC's operation in its station log.12    

     B.   Public Inspection File Violations

     12.  Background.  The public file rules are rooted in 
Section 307(b) of the Act13 and codified in Part 73 of the Rules.  
Section 73.3526(b) of the Rules states that the public inspection 
file must be maintained at the main studio of the station.14  The 
Commission has found that reasonable access to the public 
inspection file serves the important purpose of facilitating 
citizen monitoring of a station's operations and public interest 
performance, and fostering community involvement with local 
stations, thus helping to ensure that stations are responsive to 
the needs and interests of their local communities.15

     13.  Section 73.3526(e)(5) of the Rules requires commercial 
broadcast stations to place a copy of the most recent, complete 
ownership report in the public inspection file.  Section 
73.3526(e)(12) of the Rules requires commercial broadcast 
stations to place in the public inspection file every three 
months a list of programs that have provided the station's most 
significant treatment of community issues during the preceding 
three months.  JMK admits that neither the latest ownership 
report nor a complete issues/programs list was in the public 
inspection file on the date WPWC was inspected. The Bureau has 
imposed forfeitures for violation of these rules as a licensee is 
expected to comply with the public inspection file rules.16 

     14.  Discussion.  JMK contends that the $10,000 forfeiture 
assessed for its public file violations is inappropriate.  
Although JMK admits the two public file violations, it argues 
that the proposed forfeiture amount is excessive in comparison to 
forfeiture amounts that have been assessed for more severe public 
file infractions.  In support, JMK cites Community Broadcasting, 
Inc., a case in which a $2,500 forfeiture was imposed for a 
public inspection file that lacked the most current ownership 
report and a contour map (forfeiture reduced to $2,000 for other 
reasons).  We agree that a reduction of the forfeiture amount 
assessed for JMK's public inspection file violations is 
appropriate.  We do not, however, agree with the amount proposed 
by JMK.  Consistent with Community, we find that the appropriate 
amount to be assessed for JMK's violation of Section 
73.3526(e)(5) of the Rules by not having the most current 
ownership report in its public inspection file is $1,250.17  We 
also find that the appropriate amount to be assessed for JMK's 
violation of Section 73.3526(e)(12) of the Rules by not having an 
adequately detailed issues/programs log in its public file is 
$4,000.18  Therefore, we reduce the forfeiture amount 
attributable to the public inspection file violations from 
$10,000 to $5,250.        

IV.  ORDERING CLAUSES

     15.  Accordingly, IT IS ORDERED that, pursuant to Section 
405 of the Act19 and Section 1.106 of the Rules,20 the petition 
for reconsideration filed by JMK Communications, Inc. of the 
Enforcement Bureau's Forfeiture Order for the NAL/Acct. 
referenced herein is GRANTED to the extent indicated above and 
DENIED in all other respects.

     16.  IT IS FURTHER ORDERED that JMK Communications, Inc. is 
hereby ADMONISHED for its failure to accurately reflect Station 
WPWC's operation in its station log.

     17.  IT IS ALSO ORDERED THAT, pursuant to Section 503(b) of 
the Communications Act of 1934, as amended, (``Act'') and Section 
1.80(f)(4) of the Rules,21 JMK Communications, Inc. IS LIABLE FOR 
A MONETARY FORFEITURE in the amount of five thousand two hundred 
fifty  dollars ($5,250) for willfully and repeatedly violating 
Sections 73.3526(e)(5), and 73.3526(e)(12) of the Rules.

     18.  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.22  
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/Acct. No. and FRN 
No. referenced above.  Payment by check or money order may be 
mailed to Federal Communications Commission, P.O. Box 358340, 
Pittsburgh, PA 15251-8340.  Payment by overnight mail may be sent 
to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, 
Pittsburgh, PA 15251.  Payment by wire transfer may be made to 
ABA Number 043000261, receiving bank Mellon Bank, and account 
number 911-6106.  Requests for full payment under an installment 
plan should be sent to: Associate Managing Director - Financial 
Operations, 445 12th Street, SW, Room 1A625, Washington, DC 
20554.23 

     19.  IT IS FURTHER ORDERED that copies of this Order shall 
be sent by Certified Mail Return Receipt Requested and by First 
Class Mail to JMK Communications, Inc., 4525 Wilshire Boulevard, 
Los Angeles, California 90010, and its counsel, Peter Gutmann, 
Esq., at Womble Carlyle Sandridge & Rice, PLLC, 1401 Eye Street, 
NW, 7th Floor, Washington, DC 20005. 

                          FEDERAL COMMUNICATIONS COMMISSION

                         


                           Kris Anne Monteith
                           Chief, Enforcement Bureau
_________________________

1 JMK initially filed an Application for Review on January 26, 
2005.  On October 24, 2005, JMK withdrew its Application for 
Review and agreed to have its submission treated as a petition 
for reconsideration.  The document filed on January 26, 2005 will 
hereinafter be referred to as a petition for reconsideration.
2 JMK Communications, Inc., 19 FCC Rcd 24808 (Enf. Bur. 2004).
3 47 C.F.R. §§ 73.1745(a), 73.3526(e)(5), and 73.3526(e)(12).  
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200432340004 (Enf. Bur., Columbia Office, released March 4, 
2004).
5 47 C.F.R. § 11.35(a).
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 12  FCC Rcd.  17087  (1997), recon.  denied,  15 FCC  Rcd.  303 
(1999).
9 47 U.S.C. § 503(b)(2)(D).
10 See  M.B. Communications,  Inc., 20  FCC Rcd  9536 (Enf.  Bur. 
2005); Jason Konarz, 19 FCC Rcd 19562 (Enf. Bur. 2004). 
11 47 C.F.R. § 73.1800.
12 See WKLC, Inc., 20 FCC Rcd 13554 (Enf. Bur. 2005) (licensee 
admonished for a violation for which it had not previously been 
cited).
13 47 U.S.C. § 307.
14 This Rule was modified in 1998 to provide, among other things, 
more flexibility regarding the location of a radio station's 
public files.  Licensees were required to provide ready access to 
those files.  Review of the Commission's Rules Regarding the Main 
Studio Rule and Local Public Inspection Files of Broadcast 
Television and Radio Stations, 13 FCC Rcd 15691 (1998).
15 Id. at 15700.
16 See Community Broadcasting, Inc., 19 FCC Rcd 22502 (Enf. Bur. 
2004) (forfeiture imposed for missing ownership report); Capstar 
TX Limited Partnership c/o Doran Bunkin, Esq., 18 FCC Rcd 20203 
(MB 2003) ($4,000 forfeiture imposed for missing issues/programs 
lists).
17 See Community Broadcasting, Inc., Notice of Apparent 
Liability, NAL/Acct. No. 200432340004 (Enf. Bur., Columbia 
Office, released March 4, 2004; upheld by Community Broadcasting, 
supra (reduced for other reasons). 
18  See Capstar, supra; Capstar TX Limited Partnership c/o/ Doran 
Bunkin, Esq., 18 FCC Rcd 20199 (2003) ($4,000 forfeiture assessed 
because station's public inspection file lacked an adequate 
issues/programs list).
19 47 U.S.C. § 405.
20 47 C.F.R. § 1.106.
21 47 C.F.R. §§ 0.111, 0.311, and 1.80(f)(4).
22 47 U.S.C. § 504(a).
23 See 47 C.F.R. § 1.1914.