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

In the Matter of                  )
                                  )
A-O Broadcasting Corporation      )       File Number: EB-04-DV-114
                                  )
Operation of Unlicensed Radio     )      NAL/Acct. No. 200432800001
Station on 97.9 MHz near          )
Cloudcroft, New Mexico            )                FRN 0005-0204-74
(Former Licensee of KTMN,1 
Cloudcroft, New Mexico, Facility 
ID 89049)



         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                   Released:  
                                              April 23, 2004
                              

By the District Director, Denver Office, Enforcement Bureau:


                      I.  INTRODUCTION

     1.   In   this  Notice   of   Apparent  Liability   for 
Forfeiture   ("NAL"),   we   find  that   A-O   Broadcasting 
Corporation  ("A-O"), former  licensee of  station KTMN,  in 
Cloudcroft, New Mexico,  apparently willfully and repeatedly 
violated Section 301  of the Communications Act  of 1934, as 
amended  ("Act"),2 by  operating on  the frequency  97.9 MHz 
without  an authorization  from  the Federal  Communications 
Commission ("Commission").  We conclude, pursuant to Section 
503(b) of the Communications Act  of 1934, as amended,3 that 
A-O is apparently  liable for a forfeiture in  the amount of 
ten thousand dollars ($10,000).


                       II.  BACKGROUND

     2.   On January 3, 2003,  the Media Bureau notified A-O 
by letter that the license  for station KTMN expired and was 
thereby  forfeited  as  of  November 8,  2002,  pursuant  to 
Section  312(g)  of  the  Act,4 because  of  that  station's 
failure to  transmit broadcast signals for  a consecutive 12 
month period.5  On Thursday, April 8, 2004, the Commission's 
Denver  Office  received  information from  three  different 
sources  that  KTMN  had resumed  broadcast  operations.   A 
search  of the  Commission's licensee  database revealed  no 
license for the operation of KTMN on 97.9 MHz.  

     3.   On April 8, 2004, an  agent from the Denver Office 
called KTMN and spoke with a  disc jockey at the station who 
told the agent  that KTMN had been on the  air for two days.  
The Denver  agent then contacted  the President of  A-O, who 
confirmed that KTMN was broadcasting on 97.9 MHz.6  On April 
9,  2004, the  Denver agent  telephoned A-O's  President and 
advised  that  the Commission  records  failed  to show  any 
Commission operating authority for KTMN.  Later that day, A-
O filed a  notification with the Commission  that KTMN would 
be broadcasting the weekend of April 10 - 11, 2004, pursuant 
to Section 73.1250 of the Commission's Rules.7  

     4.   On April 13, 2004, the Chief of the Media Bureau's 
Audio Division sent a letter  to A-O's counsel advising them 
that "DKTMN(FM),  Cloudcroft, N.M., is without  authority to 
initiate or continue broadcast  operations."8   A-O was also 
ordered to report, by April  15, 2004, "whether the licensee 
ceased operations  and on  what day it  ceased operations."9   
On  April 15,  2004, A-O's  counsel responded  to the  Media 
Bureau  April 2004  Letter with  a letter  stating that  "on 
behalf  of the  licensee,  I  can report  to  you that  KTMN 
remains on  the air . .  . ."10  The station,  however, went 
off the air on April 19, 2004.   


                      III.  DISCUSSION

     5.   Section 503(b) of the Act provides that any person 
who willfully  fails to comply substantially  with the terms 
and conditions of any license,  or willfully fails to comply 
with  any of  the  provisions of  the Act  or  of any  rule, 
regulation  or order  issued by  the Commission  thereunder, 
shall  be  liable  for   a  forfeiture  penalty.   The  term 
"willful" as used in Section  503(b) has been interpreted to 
mean  simply  that  the  acts  or  omissions  are  committed 
knowingly.11  The  term "repeated"  means the  commission or 
omission of  such act more  than once  or for more  than one 
day.12
 
     6.   Section 301 of the  Act prohibits radio operations  
"except and in  accordance with this Act and  with a license 
granted under the  provisions of this Act."13   On or around 
April 6, 2004, A-O began  transmitting on the frequency 97.9 
MHz, from the Wofford Peak electronic site, near Cloudcroft, 
New Mexico,  located on United States  Forest Service lands, 
without the required Commission authorization.  As explained 
above,  A-O  apparently  continued  to  operate  KTMN  until 
Monday,  April  19,  2004,  despite being  notified  by  the 
Commission  that  KTMN's   license  had  been  automatically 
forfeited,  by  operation  of  law, and  that  KTMN  has  no 
Commission  authority  to  initiate  or  continue  broadcast 
operations.  A-O explicitly acknowledged, on April 15, 2004, 
through counsel, that "KTMN remains on the air."  Therefore, 
it appears  that A-O's unlicensed  operation on 97.9  MHz is 
willful.  It  further appears  that unlicensed  operation on 
97.9  MHz  occurred  on  more  than one  day;  thus,  it  is 
repeated. Based on the evidence  before us, we find that A-O 
willfully and repeatedly violated Section  301 of the Act by 
operating radio transmission apparatus  without a license on 
97.9 MHz.14

     7.   Pursuant  to  The Commission's  Forfeiture  Policy 
Statement  and Amendment  of Section  1.80 of  the Rules  to 
Incorporate the  Forfeiture Guidelines,  ("Forfeiture Policy 
Statement"),  and  Section  1.80  of  the  Rules,  the  base 
forfeiture  amount for  operation without  an instrument  of 
authorization for  this service is $10,000.15   In assessing 
the  monetary  forfeiture amount,  we  must  also take  into 
account  the   statutory  factors   set  forth   in  Section 
503(b)(2)(D)  of   the  Act,   which  include   the  nature, 
circumstances, extent,  and gravity  of the  violations, and 
with respect to the violator, the degree of culpability, and 
history of  prior offenses, ability  to pay, and  other such 
matters as  justice may  require.16  Considering  the entire 
record and applying the factors  listed above, we conclude a 
forfeiture in the amount of $10,000 is appropriate.
   .

                    IV.  ORDERING CLAUSES

     8.   Accordingly,  IT  IS  ORDERED  THAT,  pursuant  to 
Section  503(b)  of  the  Communications  Act  of  1934,  as 
amended,  and   Sections  0.111,  0.311  and   1.80  of  the 
Commission's Rules,  A-O Broadcasting Corporation  is hereby 
NOTIFIED of this APPARENT LIABILITY  FOR A FORFEITURE in the 
amount of  ten thousand dollars ($10,000)  for violations of 
Section 301 of the Act.17

     9.   IT IS  FURTHER ORDERED  THAT, pursuant  to Section 
1.80 of  the Commission's  Rules within  thirty days  of the 
release  date  of  this  Notice of  Apparent  Liability  for 
Forfeiture, A-O Broadcasting Corporation  shall pay the full 
amount of  the proposed forfeiture  or shall file  a written 
statement seeking reduction or  cancellation of the proposed 
forfeiture.

     10.  Payment of the forfeiture may be made by mailing a 
check or  similar instrument,  payable to  the order  of the 
Federal   Communications  Commission,   to  the   Forfeiture 
Collection Section,  Finance Branch,  Federal Communications 
Commission,  P.O. Box  73482, Chicago,  Illinois 60673-7482.  
The payment  must include the FCC  Registration Number (FRN) 
and the NAL/Acct. No. referenced in the caption.

     11.  The response,  if any,  must be mailed  to Federal 
Communications  Commission,   Enforcement  Bureau,  Spectrum 
Enforcement  Division, 445  12th  Street, S.W.,  Washington, 
D.C. 20554, and must include the NAL/Acct. No. referenced in 
the caption.  

     12.  The  Commission  will  not  consider  reducing  or 
canceling a forfeiture  in response to a  claim of inability 
to  pay  unless  the  petitioner submits:  (1)  federal  tax 
returns for the most recent three-year period; (2) financial 
statements   prepared   according  to   generally   accepted 
accounting practices  ("GAAP"); or  (3) some  other reliable 
and  objective documentation  that  accurately reflects  the 
petitioner's  current   financial  status.   Any   claim  of 
inability to  pay must  specifically identify the  basis for 
the  claim  by  reference  to  the  financial  documentation 
submitted.  

     13.  Requests for  payment of  the full amount  of this 
Notice  of  Apparent  Liability   for  Forfeiture  under  an 
installment  plan  should be  sent  to:  Chief, Revenue  and 
Receivables  Operations   Group,  445  12th   Street,  S.W., 
Washington, D.C. 20554.18

     14.  Under the  Small Business Paperwork Relief  Act of 
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the 
FCC is engaged in a  two-year tracking process regarding the 
size of entities involved in forfeitures.  If you qualify as 
a small  entity and  if you  wish to be  treated as  a small 
entity for tracking purposes, please so certify to us within 
thirty (30) days of this NAL, either in your response to the 
NAL  or in  a separate  filing to  be sent  to the  Spectrum 
Enforcement  Division.  Your  certification should  indicate 
whether   you,  including   your  parent   entity  and   its 
subsidiaries, meet one  of the definitions set  forth in the 
list provided by the FCC's Office of Communications Business 
Opportunities  (OCBO)  set forth  in  Attachment  A of  this 
Notice of Apparent Liability.  This information will be used 
for  tracking purposes  only.  Your  response or  failure to 
respond to this question will  have no effect on your rights 
and  responsibilities  pursuant  to Section  503(b)  of  the 
Communications Act.  If you  have questions regarding any of 
the information  contained in  Attachment A,  please contact 
OCBO at (202) 418-0990.

     15.  IT IS FURTHER  ORDERED THAT a copy  of this Notice 
of  Apparent  Liability  for  Forfeiture shall  be  sent  by 
Certified Mail, Return Receipt  Requested, and regular mail, 
to A-O Broadcasting Corporation, Attention Robert J. Flotte, 
3001  North Florida  Avenue, Alamogordo,  New Mexico  88301-
9794, and its  counsel, Paul H. Brown, Esq.,  Wood, Maines & 
Brown,  Chartered, 1827  Jefferson  Place, N.W.  Washington, 
D.C. 20036. 


                              FEDERAL         COMMUNICATIONS 
COMMISSION



                              Nikki P. Shears
                              District    Director,   Denver 
Office

Enclosure:  FCC List of Small Entities
_________________________

1 The Commission's database now  lists the station call sign 
as "DKTMN" to reflect its deletion.

2  47 U.S.C.  301.

3  47 U.S.C.  503(b).  

4  47 U.S.C.  312(g).

5   Letter to  Paul H.  Brown, Esq.,  18 FCC  Rcd 35  (2003) 
("Media Bureau January 2003 Letter").  The Media Bureau also 
denied  A-O's  petition  for reconsideration  of  the  Media 
Bureau January  2003 Letter.  See Letter  to Paul  H. Brown, 
Esq., 18 FCC Rcd 3818  (2003).  An application for review of 
that action is pending.

6    A-O's  President   indicated  that   the  station   was 
simulcasting  100% of  KUPR's  programming,  a FM  broadcast 
station licensed to Southern  New Mexico Radio Foundation to 
serve Alamogordo, New Mexico,  operating on 91.7 MHz.  A-O's 
President, who is also the  President of Southern New Mexico 
Radio Foundation, stated that KTMN was broadcasting from the 
Wofford Mountain electronics site,  located on United States 
Forest Service  lands near  Cloudcroft, New Mexico,  and had 
been on the air for the last two days.     

7  47 C.F.R.  73.1250 (Broadcasting Emergency Information).  
See   Letter  from   A-O  Broadcasting   Corporation,  KTMN, 
Cloudcroft,  New  Mexico,   to  Marlene  Dortch,  Secretary, 
Federal Communications Commission (April 9, 2004).  A-O also 
contacted staff  in the Audio  Division of the  Media Bureau 
about receiving  temporary authority  to operate April  10 - 
11, 2004.

8  April 13, 2004, letter  from Peter H. Doyle, Chief, Audio 
Division, Media  Bureau, to  Paul H.  Brown, Wood,  Maines & 
Brown ("Media Bureau April 2004 Letter").

9   Id.

10  April 15, 2004, letter  from Barry D. Wood, Wood, Maines 
& Brown,  to Peter  H. Doyle,  Chief, Audio  Division, Media 
Bureau.

11  Section  312(f)(1) of  the Act,  47 U.S.C.   312(f)(1), 
which  applies  to  violations  for  which  forfeitures  are 
assessed  under Section  503(b)  of the  Act, provides  that 
"[t]he  term  'willful', when  used  with  reference to  the 
commission or omission  of any act, means  the conscious and 
deliberate commission or omission  of such act, irrespective 
of any  intent to violate any  provision of this Act  or any 
rule  or regulation  of  the Commission  authorized by  this 
Act...."  See  Southern California  Broadcasting Co.,  6 FCC 
Rcd 4387 (1991).

12  Section 312(f)(2)  of the  Act, 47  U.S.C.   312(f)(2), 
which also  applies to violations for  which forfeitures are 
assessed  under Section  503(b)  of the  Act, provides  that 
"[t]he  term 'repeated',  when  used with  reference to  the 
commission or omission  of any act, means  the commission or 
omission of such  act more than once or,  if such commission 
or omission is continuous, for more than one day." 

13  47 U.S.C.  301.

14  A-O operated on 97.9 MHz in Cloudcroft, N.M., from on or 
around April 6, 2004, until  approximately noon on April 19, 
2004.

15  12 FCC  Rcd 17087 (1997), recon. denied, 15  FCC Rcd 303 
(1999); 47 C.F.R. 1.80.

16  47 U.S.C.  503(b)(2)(D).

17  47  U.S.C.   301, 503(b); 47  C.F.R.   0.111, 0.311, 
1.80.

18  See 47 C.F.R.  1.1914.