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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#Xj\  P6G;XP##X\  P6G;P#X01Í ÍX01Í Í#Xj\  P6G;XP#"S^*8DSS888S^*8*.SSSSSSSSSS..^^^Jxooxf]xx8Axfxx]xo]fxxxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZ8*888888888888S.xJxJxJxJxJooJfJfJfJfJ8.8.8.8.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxJxJoJoJoJoJxSfJfJfJfJxSxSxSxSxSxSxS8S8S888SA8xSf.f8f8f8f.xSxSxSxSxSxo8o8o8]A]A]A]Af8f8f8xSxSxSxSxxSfJfJN:*LS8JSSSSS.4}}S2S}2JJS88SS]]8J2t^^\\^^ee*C^.wR)Ewn\1fy\r\Sxx\r"S^2CoddȧCCCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,OhC2CC!CCCCCCCCCCo8dddddȐYYYYYN8N8N8N8oddddooooddoddddzoddYYYYoYYYYdddddooNoNoNCNodCo8CCC8oooddȐYYYoNoNoNoNCCCooooȐdYYNF2ldCddddddd<d<+oodCCddddCoof $10,000, pursuant to Section 503(b) of the Communications Act, as amended, 47 U.S.C.  503(b).  X-  ]x2. In the NAL, we determined that Ulbricht had willfully and repeatedly violated Section  x310(d) of the Communications Act, as amended, 47 U.S.C.  310(d), and Section 73.3540 of the  xCommission's Rules, by assuming control of Station KSWB, Seaside, Oregon without  xxCommission authorization. The apparently unauthorized transfer of control occurred no later than  xApril 1, 1995, when a Lease Management Agreement ("LMA") between Ulbricht and "God's  xMinistry of Deliverance and Restoration" (the "Ministry"), an entity apparently controlled by  xMonte Clark ("Clark"), went into effect. Clark, in addition to his role in the Ministry, was the  xsole principal of Monte Corporation, licensee of KSWB. The LMA itself and information  xprovided by Ulbricht and Clark indicated that Clark had relinquished control of KSWB to  xUlbricht prior to Commission action on the pending application to assign the station's license  xlfrom Monte Corporation to Ulbricht (File No. BAL950110EH). Because the Commission  xgranted that application on October 5, 1995, the period of unauthorized transfer of the station lasted slightly more than six months. "q(,))ZZ3'"Ԍ  !x3. In his response to the NAL, Ulbricht disputes that he assumed control of the station  xprior to our authorization. Ulbricht claims that all programming and personnel issues were  xdiscussed with Clark's personal representative, Ujual Strestha ("Strestha"), at weekly staff  xmeetings. According to Ulbricht, Strestha never objected to staff recommendations, and  xStrestha's only directive to Ulbricht was that the station refrain from broadcasting specific  x\religious programming that Clark might find offensive. Ulbricht also contends that Strestha  x"dealt with" compliance with Commission rules at the weekly staff meetings but provides no  x[further explanation. Ulbricht admits that he paid Strestha but insists that such payment was at  xlClark's direction and that Strestha was never his (Ulbricht's) employee. In his statement,  x.Strestha describes himself as a manager for the station, hired by the Ministry, to look after the  xMinistry's interests, and as a salesman. He further states that his work for the Ministry included  xassuring that the station is "running without any FCC violation." Strestha does not explain how he managed the station or who, if anyone, reported to him.   x4. With respect to station finances, Ulbricht acknowledges that Clark has not had access  xyto the station's checkbook. Ulbricht contends that, when the LMA was entered into, Clark had  x>no working capital, the station's accounts payable were seriously in arrears, and there were  xvirtually no accounts receivable. Further, Ulbricht states that the station's equipment was  xjtransferred to him following foreclosure by the equipment company. Ulbricht submits that any  xworking capital that the station now has was contributed by him or was generated from  xoperations under the LMA. Ulbricht further contends that he denied Clark access to station finances because he was concerned Clark would use the money for a Nigerian oil venture.   @x5. Finally, regarding ability to pay, Ulbricht submits that a forfeiture would seriously  xzimpair the station's ability to continue operations. In this regard, while the station's balance  x=sheet shows that liabilities exceed assets by $73,000, the station's largest liability is a debt due  x\to Ulbricht for $107,000. Further, while the station's income statement shows a loss of more than $63,000 over five "periods," the most recent period shows a modest profit of $1,000.   x6. Section 310(d) of the Communications Act and Section 73.3540 of the Commission's  xyRules require the consent of the Commission prior to effectuation of a voluntary assignment of  xlicense or transfer of control. In ascertaining whether an unauthorized transfer of control has  xoccurred, the Commission focuses on whether an individual or entity other than the licensee has  X - xjobtained the right to determine the basic operating policies of the station. See WHDH, Inc., 17  X- x\FCC 2d 856, 863 (1969), aff'd sub nom. Greater Boston Television Corp. v. FCC, 444 F.2d 841  X- x(D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971). After carefully considering Ulbricht's  xresponse, we continue to believe that Ulbricht prematurely assumed control of KSWB, contrary to the Act and our Rules.   x7. From Ulbricht's submissions, it appears that Ulbricht, not Clark, had the ultimate  xcontrol over the station's personnel, programming and finances. In this regard, the only person  xat the station who ever reported to Clark was Strestha. However, Strestha was paid by Ulbricht,  xnot Clark. Likewise, although Strestha may have viewed himself as a manager working on behalf  xof the Ministry, there is no evidence that he managed anything or supervised anyone. As for"#',-(-(ZZ%"  xprogramming, while Strestha supposedly had some authority to object to religious programming  xthat Clark might find objectionable, there is no evidence that Strestha ever exercised such  xauthority. On the contrary, it appears that all programming decisions were made by Ulbricht.  xFinally, with respect to finances, Ulbricht has acknowledged that Clark had no role whatsoever.  xIndeed, Clark never saw the station's checkbook, and all equipment at the station was owned by  xjUlbricht. Because all of the foregoing occurred before the Commission granted the application  xjto assign the station's license to Ulbricht, we conclude that an unauthorized transfer of control  xto Ulbricht took place in violation of both Section 310(d) of the Communications Act and Section 73.3540 of the Commission's Rules.   x8. In determining the amount of a forfeiture, the Commission is to consider "the nature,  xcircumstances, extent and gravity of the violation and, with respect to the violator, the degree of  xculpability, any history of prior offenses, ability to pay, and such other matters as justice may  x>require." Section 503(b)(2)(D) of the Communications Act of 1934, as amended, 47 U.S.C.   x503(b)(2)(D). As described above, Ulbricht willfully exercised complete control over the station  xprior to having obtained Commission authorization. The violations began at least by April 1,  x1995, the date the LMA became effective, and continued until the grant of the referenced  xassignment application on October 5, 1995, a period of slightly more than six months. Thus, the  x/violations were repeated. Further, we perceive no mitigating circumstances with respect to  xUlbricht's actions. Ulbricht has advanced no reason why he could not have waited for the  xCommission to grant his application prior to his assuming control over the station. In addition,  x=Ulbricht has made no argument that the amount of the forfeiture is inappropriate in light of the  xjprecedent cited in the NAL. Finally, we conclude that the station's financial situation does not  xwarrant a reduction in the forfeiture. The information submitted shows that the largest single creditor of the station is Ulbricht, himself, and that the station is beginning to turn a profit. Accordingly, we conclude that the $10,000 forfeiture is warranted.  X-  x9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications  xAct of 1934, as amended, 47 U.S.C.  503(b), Kenneth B. Ulbricht, d/b/a Seaside Broadcasting  xFORFEIT to the United States the sum of Ten Thousand Dollars ($10,000) for the willful and  xrepeated violations of Section 310(d) of the Communications Act of 1934, as amended, 47 U.S.C.  x 310(d), and Section 73.3540 of the Commission's Rules, 47 C.F.R.  73.3540 as described  xabove. Kenneth B. Ulbricht may take any of the steps outlined in the attachment to this letter regarding payment of the forfeiture pursuant to Section 1.80 of the Commission's Rules. ",-(-(ZZ"   mx10. The Mass Media Bureau will send by Certified Mail Return Receipt Requested, copies of this Memorandum Opinion and Order and Forfeiture Order to Kenneth B. Ulbricht.         x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhRoy J. Stewart x` `  hhChief, Mass Media Bureau x