Click here for Microsoft Word Version
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
Word or WordPerfect version or Adobe Acrobat version (above).
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
M.C. ALLEN PRODUCTIONS ) File No. EB-00-IH-0392
) NAL/Acct. No. 200132080055
Licensee of Station KMCA(AM) )
Burney, California )
Facility ID # 64414 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 7, 2001 Released: May 9, 2001
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that M.C. Allen Productions (``Allen'') has
apparently violated Section 301 of the Communications Act of
1934, as amended (the ``Act''), 47 U.S.C. § 301, and sections
73.1125(e), 73.1615 and 73.1620 of the Commission's rules, 47
C.F.R. § 73.1125(e), 73.1615 and 73.1620, in connection with its
operation of Station KMCA(AM), Burney, California. The apparent
violations include periods of operation at unauthorized locations
and on an unauthorized frequency, and a failure to maintain a
local or toll-free telephone number in its community of license.
We conclude that Allen is apparently liable for a forfeiture in
the amount of fifteen thousand dollars ($15,000).
2. In Application of State of Oregon, 15 FCC Rcd 15456,
15458 n. 13 (2000) (subsequent history omitted),1 the Commission
referred to the Enforcement Bureau the question whether Station
KMCA's main studio location complied with section 73.1125(a) of
the Commission's rules, 47 C.F.R. § 73.1125(a). After
investigating the matter, we have determined that Station KMCA
has maintained its main studio at locations authorized by the
Commission's rules.2 However, as explained below, we have also
determined that Allen has apparently violated various statutory
and rule provisions in its operation of Station KMCA. In
addition, it appears that Allen does not currently have authority
to operate Station KMCA in Shasta on 1460 kHz.
3. Allen holds a license to operate Station KMCA as a
nondirectional AM station in the community of Burney on 1450 kHz.
Its license was last renewed on July 14, 1999. Prior to that
time, however, Allen had relocated Station KMCA to Shasta, a
community some 55 miles to the southwest, adjacent to the larger
community of Redding, California. Allen's only apparent
authority for this move was a permit, which then authorized Allen
to construct a new nondirectional AM station in Shasta. See File
Nos. BP-19970903AA, granted June 12, 1998, and BMP-19980901AA,
granted January 19, 1999.3 In this regard, the Commission's
files reflect that Allen did not have special temporary
authorization (``STA'') to operate a broadcast station in Shasta
until December 15, 1999. Moreover, upon expiration of that
authority on May 30, 2000, Allen did not obtain additional STA.
Rather, Allen continued to broadcast in Shasta as if it had such
authority. Further, even though it did not file a license
application that reflected completion of construction of its new
directional AM station on 1460 kHz in accordance with its
modified permit (see File No. BMP-20000324AAT, granted August 30,
2000) until February 2000, Allen's submissions reflect that it
began to broadcast Station KMCA on 1460 kHz upon grant of its
construction permit application, rather than upon issuance of
staff approval following submission of its license application.
See File No. BL-20010227ABW. In addition, once Station KMCA
abandoned Burney, it also ceased maintaining a telephone number
in Burney or a toll-free number.
4. Section 301 of the Act, 47 U.S.C. § 301, prohibits
radio operation ``except under and in accordance with this Act
and with a license in that behalf granted under the provisions of
this Act.'' Section 73.1615 of the Commission's rules, 47 C.F.R.
§ 73.1615, allows AM licensees that hold a permit to modify their
facilities to discontinue operation or operate with temporary or
reduced facilities for a period of no more than 30 days unless
they receive authority to do otherwise upon notification to the
Commission in Washington. Operation beyond the 30th day in
accordance with the rule can occur only if the licensee (or its
representative) signs and submits an informal letter requesting
such authority to operate prior to the 30th day. Section
73.1620(a)(4) of the Commission's rules, 47 C.F.R. §
73.1620(a)(4), authorizes the permittee of a directional AM
station to commence program tests but only after certain provisos
are met. First, construction must be completed in accordance
with the terms of the permit. Second, the permittee must submit
its license application with a request for program test authority
at least ten days ``prior to the date on which it desires to
commence program test operations.'' Third, the applicant must
submit a proof of performance containing exhibits required by
section 73.186 of the Commission's rules.4 Finally, program test
operations may not commence prior to issuance of staff approval.
To date, no such approval has been given. With respect to the
main studio, section 73.1125(e) of the Commission's rules, 47
C.F.R. § 73.1125(e), requires broadcast licensees to maintain a
local telephone number in their community of license or a toll-
5. The information before us indicates that Allen had no
authority to operate Station KMCA in Shasta between July 14, 1999
(the date its license for Burney was renewed) and December 15,
1999, when STA to broadcast in Shasta was granted. Likewise,
upon expiration of its STA on May 30, 2000, Allen again had no
authority to operate in Shasta and will not have such authority
to broadcast on its new frequency (1460 kHz) until it acquires
program test authority in accordance with section 73.1620(a)(4)
of the Commission's rules. In short, since July 14, 1999, except
for the six-month period covered by the STA, Allen has not
operated Station KMCA in accordance with its license or in
accordance with any other grant of authority. Rather, Allen has
operated from an unauthorized location and, since August 30,
2000, operated on an unauthorized frequency. Finally, Allen has
not maintained a local telephone number or a toll-free number in
Burney, contrary to section 73.1125(e) of the Commission's rules,
since its last renewal of license.
6. Section 503(b)(1) of the Act5 provides that any person
who willfully or repeatedly fails to comply with the terms and
conditions of his license or the Commission's rules shall be
liable for a forfeiture penalty. In this context, the term
``willful'' means that the violator knew it was taking the action
in question, irrespective of any intent to violate the
Commission's rules,6 while ``repeatedly'' means more than once.7
Considering the information before us, it appears that Allen knew
that, for most of the time following renewal of license to the
present, it was operating Station KMCA at variance from its
license. In this regard, Allen requested STA only twice (in
November 1999 and June 2000) and received it only once. It
further appears that Allen should have known that its 1999
license application did not qualify for program test authority
inasmuch as Allen acknowledged that it had not completed
construction in accordance with the 1999 permit. Moreover, in
light of the plain language of section 73.1620(a)(4) of the
Commission's rules, Allen also should have known that it did not
have program test authority to operate Station KMCA from its
present site until it received explicit staff approval, which it
does not yet have. It thus appears that Allen's violations with
respect to unauthorized operations were not only willful but also
were intentional. It further appears that each of the violations
described occurred on more than one day; thus, they were
repeated. Finally, it also appears that Allen's failure to
maintain an appropriate telephone number in Burney was both
willful and repeated.
7. In assessing a forfeiture, we take into account the
statutory factors set forth in Section 503(b)(2)(D) of the Act,8
which include 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
such other matters as justice may require. The Commission's
forfeiture guidelines currently establish base amounts of $4,000
for operation at an unauthorized location, $4,000 for operation
on an unauthorized frequency, and $7,000 for a violation of the
main studio rule.9 Thus, the total base amount is $15,000. In
considering whether adjustments are appropriate, we note that
Allen has operated from its construction permit site both before
obtaining STA and after STA had expired. It thus appears that
Allen's unauthorized operation has been both intentional and
continuous, criteria that generally would warrant an upward
adjustment of the forfeiture amount.10 In mitigation, however,
we note that Allen's main studio violation is relatively minor in
nature.11 On balance, we find that $15,000 forfeiture is
8. Finally, we are concerned that Allen has continued to
operate Station KMCA without appropriate authorization in
apparent violation of the Commission's rules. We hereby notify
Allen that if its operation of Station KMCA continues at Shasta
without a license, program test authority or STA after release of
this Notice of Apparent Liability, it may be necessary to
institute further proceedings pursuant to Section 312 of the
Act.12 Such proceedings could lead to issuance of an order
revoking the license for Station KMCA. In this regard, we
emphasize that the mere pendency of the license application or
the filing of a request for program test authority or STA will
not suffice to avoid further enforcement action. Rather, the
license application or request for program test authority or STA
must be granted or Allen must terminate all unauthorized
operation of Station KMCA immediately. Otherwise, Allen risks
loss of the license for Station KMCA as well as additional
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,13 and Sections 0.111, 0.311 and 1.80 of the
Commission's rules,14 M.C. Allen Productions is hereby NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
fifteen thousand dollars ($15,000) for: violating Section 301 of
the Act and sections 73.1615 and 73. 1620 of the Commission's
rules15 regarding a licensee's operation during modification of
facilities and a permittee's commencement of program tests; and
for violating section 73.1125(e) of the Commission's rules16 by
failing to maintain a local or toll-free number for the community
10. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of
the Commission's rules,17 within thirty days of this NOTICE OF
APPARENT LIABILITY, M.C. Allen Productions SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
11. 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 should note the
NAL/Acct. No. referenced above.
12. The response, if any, must be mailed to the Federal
Communications Commission, Enforcement Bureau, Investigations and
Hearings Division, 445 12th Street, S.W., Washington, D.C. 20554
and MUST INCLUDE THE NAL/Acct. No. referenced above.
13. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the respondent 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 respondent's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
14. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.18
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to M.C. Allen Productions, 4531 Shannon Place, Redding,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 In that decision, the Commission reaffirmed the dismissal of
an application whose proposed contour overlapped Allen's licensed
contour in violation of section 73.37(a) of the Commission's
rules, 47 C.F.R. § 73.37(a). The Commission determined that
dismissal was appropriate because the applicant neither had
protected Allen's licensed facilities in Burney nor requested a
waiver of section 73.37(a). The applicant had contended, inter
alia, that there was no need to protect Allen's licensed
facilities because Allen had already relocated Station KMCA and
its main studio out of Burney. The Commission observed that,
notwithstanding Allen's alleged move, protection of the licensed
facilities of Station KMCA was still appropriate in the event
Allen found it impossible to construct in accordance with its
permit, which allowed Station KMCA to construct a new AM station
in Shasta, California. The Commission also noted that the
applicant's allegations regarding Station KMCA's main studio did
not justify a waiver of section 73.37(a) of the rules.
2 Our investigation reveals that Station KMCA's main studio has
always been within the principal community contour of Station
KRRX(FM), Burney, and thus in compliance with section
73.1125(a)(2) of the Commission's rules, 47 C.F.R. §
3 We are aware that Allen filed an application for license to
cover construction on November 5, 1999. See File No. BL-
19991105AAZ, dismissed August 30, 2000. However, in that
application, Allen responded ``No'' to the question: ``Have all
the terms, conditions, and obligations set forth in the above
described construction permit been fully met?'' In light of
that answer, Allen did not have authority to conduct program
tests. See section 73.1620(a)(1) of the Commission's rules, 47
C.F.R. § 73.1620(a)(1).
4 47 C.F.R. § 73.186.
5 47 U.S.C. § 503(b)(1). See also Section 1.80(a)(1) and (2),
47 C.F.R. § 1.80(a)(1) and (2).
6 See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern
California Broadcasting Co., 6 FCC Rcd 4387 (1991).
7 See Hale Broadcasting Corp., 79 FCC 2d 169, 171 (1980).
8 47 U.S.C. § 503(b)(2)(D).
9 See The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
10 See WRHC Broadcasting Corp., Notice of Apparent Liability, 15
FCC Rcd 5551 (Enforcement Bureau 2000).
11 See Rasa Communications Corp., Notice of Apparent Liability,
11 FCC Rcd 13243 (Mass Media Bureau 1996).
12 47 U.S.C. § 312.
13 47 U.S.C. § 503(b).
14 47 C.F.R. §§ 0.111, 0.311, 1.80.
15 47 U.S.C. § 301; 47 C.F.R. §§ 73.1615 and 73.1620.
16 47 C.F.R. § 73.1125(e).
17 47 C.F.R. § 1.80.
18 See 47 C.F.R. § 1.1914.