******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Bay Broadcasting Corporation ) NAL Acct. No. x32080017 ) Licensee, KHSN(AM) ) Coos Bay, Oregon ) Facility ID # 4082 ) ) Former Licensee, KBBR(AM) ) North Bend, Oregon ) Facility ID # 5212 ) NOTICE OF APPARENT LIABILITY Adopted: May 30, 2000 Released: May 31, 2000 By the Chief, Enforcement Bureau: INTRODUCTION 1. In this Notice of Apparent Liability, we propose to impose a forfeiture of one thousand five hundred dollars ($1,500) against Bay Broadcasting Corporation ("Bay") for apparent willful and repeated failures to broadcast required station identification announcements on radio station KBBR(AM), North Bend, Oregon, in violation of section 73.1201 of the Commission's rules, 47 C.F.R.  73.1201. We take this action pursuant to section 503(b) of the Communications Act of 1934, as amended (the "Act"), 47 U.S.C.  503(b), and section 1.80 of the Commission's rules, 47 C.F.R.  1.80. We also admonish Bay for continuing to use a long wire antenna without Commission authorization for radio station KHSN(AM), Coos Bay, Oregon, and for continuing to operate that station's transmitter at an unauthorized location, even after receiving a Notice of Violation ("NOV") and a Notice of Apparent Liability ("NAL") with respect to both matters, in violation of sections 73.1675 and 73.1690(b)(2) of the Commission's rules, 47 C.F.R.  73.1675 and 73.1690(b)(2). BACKGROUND 2. Following receipt of a complaint from Robert King ("Mr. King"), a former employee of Bay, on April 13 and 14, 1999, the resident agent of the Commission's Portland Field Office conducted an inspection of KBBR, KHSN and three other stations then licensed to Bay. The inspection resulted in the issuance of an NOV on April 21, 1999. Following review of Bay's response, the Portland Field Office, on August 24, 1999, issued an NAL, which proposed a forfeiture of $19,000. The NAL determined that Bay had apparently willfully and repeatedly violated section 301 of the Act, 47 U.S.C.  301, and various rule provisions, including sections 73.1201, 73.1675 and 73.1690, 47 C.F.R.  73.1201, 73.1675 and 73.1690. After considering Bay's response to the NAL, we issued a Forfeiture Order, DA 00-948, released April 27, 2000. Therein, we concluded, inter alia, that Bay's response did not contain any justification for reducing or canceling the forfeiture. 3. In the meantime, Mr. King submitted additional complaints about Bay's activities. Among other things, Mr. King alleged that, notwithstanding the NAL, Bay continued to operate KHSN from an unlicensed location, with an improper antenna. In addition, the complaints alleged that Bay failed to broadcast required station identification announcements over KBBR on September 13 and 14, 1999. Bay, in responding to an October 5, 1999, letter of inquiry from the Mass Media Bureau, concedes that the violations occurred. Bay argues, however, that, at the time of Mr. King's complaints, it had pending before the Mass Media Bureau requests for special temporary authorization ("STA") for both the relocation of KHSN(AM) and for use of the long wire antenna, and thus was taking steps to correct these violations. The Mass Media Bureau ultimately granted those requests on April 5, 2000. With respect to the failure to broadcast station identification announcements on KBBR, Bay explains that the violations occurred because a software automation program was not working and the station had not been staffed. DISCUSSION 4. Section 503(b)(2)(D) of the Act directs us to consider two distinct matters in determining the appropriate amount of a forfeiture. First, as to the violations, we must take into account their nature, circumstances, extent, and gravity. Second, with respect to the violator, we must consider the degree of culpability, history of prior offenses, ability to pay, and such other matters as justice may require. 5. The record before us reveals that Bay operated KHSN with an unapproved antenna from an unauthorized site. This unauthorized operation occurred notwithstanding the issuance of an NOV and an NAL, both of which alerted Bay that its operations were at variance with the rules. Consequently, Bay should have terminated its operation of KHSN until it had received authority, either pursuant to STA or following grant of a construction permit on FCC Form 301 in accordance with sections 73.1675 and 73.1690(b)(2) of the Commission's rules. We have already considered Bay's violations relative to KHSN in assessing the propriety of the forfeiture imposed by the Forfeiture Order, and believe that our action in that Order sets an appropriate fine. With respect to KBBR, Bay apparently chose not to staff the station in order to make station identification announcements on September 13 and 14, 1999, notwithstanding the failure of its automated system. In essence, Bay chose to violate the rule rather than pay to have staff available to make the announcements. Moreover, Bay chose this course of action notwithstanding that it had recently received an NAL, which, inter alia, cited it for failing to broadcast required station identification announcements over KHSN. 6. After considering the above, we conclude that all of the violations were willful and repeated. In this regard, the term "willful" means that the violator knew that it was taking the action in question, irrespective of any intent to violate the Commission's rules, while "repeated" means more than once. In addition, we find that the unauthorized move and use of the unauthorized antenna were not only continuous but also intentional in that those violations continued even after Bay knew that its operations were at variance with the Act, the Commission's rules, and its licenses. It is axiomatic that a licensee cannot legally engage in the activity that it wishes the Commission to authorize until it receives approval to do so. With respect to the apparent failure to broadcast station identification announcements over KBBR, we find that Bay's failure was intentional in light of its knowledge about the rule, coupled with its knowledge about the failure of the software and the decision not to staff the station. 7. With respect to KHSN, the violations have already been taken into account in determining the propriety of the forfeiture imposed in the Forfeiture Order, and we think the fine in that Order is sufficient. Under the circumstances, we believe that imposition of a separate forfeiture for unauthorized operation after issuance of the NAL, while permissible, is unnecessary. We conclude that an admonishment will suffice. However, with respect to KBBR, we note that a similar problem had resulted in the failure of Bay making station identification announcements on co-located KHSN only five months earlier. Although Bay had recently received an NAL for such failure, Bay chose not to staff KBBR following a repeated failure of its automated system, thereby making it impossible to comply with the station identification announcement rule. We conclude that the nature, circumstances, extent and gravity of the violations, coupled with Bay's culpability, warrants imposition of a forfeiture. In this case, we believe the base amount of $1,000, set by the Forfeiture Policy Statement, is insufficient. We conclude that an upward adjustment of $500 is warranted for the intentional and repeated aspects of the violation. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b) of the Act, 47 U.S.C.  503(b) and sections 0.111, 0.311 and 1.80(f) of the Commission's rules, 47 C.F.R.  0.111, 0.311 and 1.80(f), Bay Broadcasting Corporation IS NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of one thousand five hundred dollars ($1,500). The forfeiture is imposed for willful and repeated violations of section 73.1201 of the Commission's rules, 47 C.F.R.  73.1201, which requires regular broadcasts of station identification announcements. 9. IT IS FURTHER ORDERED that Bay Broadcasting Corporation IS ADMONISHED for violating sections 73.1675 and 73.1690 of the Commission's rules, 47 C.F.R.  73.1675 and 73.1690, for operating with an unauthorized antenna at an unauthorized location. 10. IT IS FURTHER ORDERED, pursuant to section 1.80(f)(3) and (h) of the Commission's rules, 47 C.F.R.  1.80(f)(3) and (h), that Bay Broadcasting Corporation, within 30 days of the release of this Notice of Apparent Liability, must pay the monetary forfeiture of $1,500 or file a written response showing why the forfeiture should be reduced or canceled. Any written response must include a detailed factual statement and supporting documentation. Payment may be made by credit card through the Commission's Credit and Debt Management Center at (202) 418-1995 or by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Federal Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment should note the NAL /Acct. No. referenced above. Requests for full payment under an installment plan should be sent to: Chief, Credit and Debt Management Center, 445 12th Street, S.W., Washington, D.C. 20554. 11. IT IS FURTHER ORDERED that copies of this Notice of Apparent Liability shall be sent by Certified Mail Return Receipt Requested to Bay Broadcasting Corporation at P.O. Box 180, Coos Bay, Oregon 97420 and to its counsel, Howard J. Braun, Esq. at Rosenman & Colin, LLP, 805 15th Street, N.W., 9th Floor, Washington, D.C. 20005-2212. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau