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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 re Request of ) ) Tri-Valley Broadcasters ) Licensee of Station KKIQ-FM, ) Livermore, California ) ) For Refund of Forfeiture Payment ) MEMORANDUM OPINION AND ORDER Adopted: November 4, 1999 Released: November 9, 1999 . By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration an Application for Review filed December 29, 1998, by Tri-Valley Broadcasters, Inc. ("Tri-Valley"), licensee of Station KKIQ-FM, Livermore, California, seeking review of a Letter Decision issued on November 30, 1998, by the Mass Media Bureau. The Letter Decision denied Tri-Valley's request for a refund of a $10,000 forfeiture payment. For the reasons stated herein, the Application for Review is denied. II. BACKGROUND 2. In 1996, the Commission renewed the license for KKIQ-FM but issued a Notice of Apparent Liability ("NAL") for a $10,000 forfeiture for violations of the broadcast equal employment opportunity ("EEO") Rule. Memorandum Opinion and Order and Notice of Apparent Liability in Tri-Valley Broadcasters, Inc., 11 FCC Rcd 4719 (1997). The Commission subsequently considered Tri-Valley's response to the NAL, but, nonetheless, issued a Forfeiture Order for a $10,000 forfeiture. Memorandum Opinion and Order and Notice of Forfeiture in Tri-Valley Broadcasters, Inc., 12 FCC Rcd 9938 (1997). Tri-Valley did not file a petition for reconsideration of the Forfeiture Order challenging the amount of the forfeiture or the underlying rule violation. See 47 C.F.R.  1.80(i). Rather, Tri-Valley paid the forfeiture in full on July 22, 1997. 3. Following the decision of the U.S Court of Appeals for the D.C. Circuit in Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), petition for reh'g denied, 154 F.3d 487, petition for reh'g en banc denied, 154 F.3d 494 (D.C. Cir. 1998), which held that the EEO program requirements of the broadcast EEO Rule are unconstitutional, Tri-Valley sought a refund of the $10,000 forfeiture payment. In the Letter Decision, the Mass Media Bureau determined that there was no basis for a refund because Tri-Valley paid the forfeiture voluntarily in response to the Forfeiture Order. The Bureau found that Tri-Valley's payment of the forfeiture was voluntary because, under Section 504 of the Communications Act of 1934, as amended, Tri-Valley was not required to pay the forfeiture until a United States District Court has ordered payment after a trial de novo and such order was final. In the absence of such a final court order, the Commission was barred under Section 504(c) from taking prejudicial action against Tri-Valley based on the assessment of the forfeiture. The Bureau concluded that Tri-Valley was not entitled to a refund of its forfeiture payment, citing Associated Broadcasters, Inc., 12 FCC Rcd 3324, 3327-28 (1997) ("Associated Broadcasting"), and Eagle Radio, Inc., 12 FCC Rcd 5105, 5109 (1997) ("Eagle Radio"), where the Commission held that a party which voluntarily pays a forfeiture is not entitled to a refund, even if the basis upon which the forfeiture was imposed is later found to be invalid. III. DISCUSSION 4. In its Application for Review, Tri-Valley argues that Section 504 of the Communications Act merely sets out the procedural process for recovery in cases where a licensee does not pay a forfeiture, and that it does not state that payments made pursuant to a forfeiture order without a final court order are voluntary. In addition, Tri-Valley argues that Section 504(c) is inapplicable here because this case involves issuance of a forfeiture order, rather than a notice of apparent liability. Tri-Valley also argues that payment of a forfeiture pursuant to a forfeiture order is not voluntary because Section 1.80(f)(4) of the Commission's Rules imposes an obligation on a licensee to pay a forfeiture at the time the forfeiture order is issued by the Commission. Furthermore, Tri-Valley asserts that it is contrary to the public interest and common sense to establish a policy that a Commission forfeiture order imposes no obligation to pay at the time of issuance because there would be no reason for licensees to pay forfeitures anytime prior to a court order requiring payment. Finally, Tri-Valley asserts that the two cases cited by the Bureau in the Letter Decision, Associated Broadcasting and Eagle Radio, did not involve forfeitures based on a requirement that has been found to be unconstitutional. 5. We need not decide here whether the Bureau was correct in concluding that Tri-Valley's payment of the forfeiture was voluntary because we conclude that the principle of administrative finality supports denial of Tri-Valley's refund request. Under Section 1.80(i) of the Commission's Rules, 47 C.F.R.  1.80(i), a licensee that is the subject of a forfeiture order may file a petition for reconsideration of the forfeiture order within 30 days in accordance with Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106. Moreover, the attachment to the Forfeiture Order issued to Tri-Valley explicitly stated that under Section 1.80 of the Commission's Rules, the licensee may file a petition for reconsideration of a forfeiture order within 30 days of the date of the forfeiture order. However, Tri-Valley did not avail itself of this procedure. Therefore, the Forfeiture Order became a final order no longer subject to reconsideration, review or appeal 30 days after its issuance, eight months before the decision in Lutheran Church was issued. Because the Forfeiture Order was a final, unappealable order eight months before the Lutheran Church decision was issued, Tri-Valley is not entitled to a refund of its forfeiture payment. See Greater Boston Television Corporation v. FCC, 463 F.2d 268, 336 (D.C. Cir. 1971) (emphasizing the strong interest in administrative finality "with the issuance of a 'final' administrative order an order which is no longer subject to appeal to the court, for which no administrative reconsideration is permitted by the regulatory statute"). See also The Pikes Peak Broadcasting Company, FCC 99-274 (released October 8, 1999). IV. CONCLUSION 6. For the foregoing reasons, we find that Tri-Valley is not entitled to a refund of its forfeiture payment. Accordingly, we deny its Application for Review. V. ORDERING CLAUSES 7. ACCORDINGLY, IT IS ORDERED that the Application for Review filed by Tri-Valley Broadcasters, Inc. IS DENIED. 8. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order be sent by Certified Mail -- Return Receipt Requested -- to Tri-Valley Broadcasters, Inc. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary