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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
KASA Radio Hogar, Inc. ) File No. EB-00-SD-295
Licensee of Station KDAP(AM) ) NAL/Acct. No. 200132940002
Phoenix, Arizona )
MEMORANDUM OPINION AND ORDER
Adopted: August 30, 2001 Released: September
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, we deny a
Petition for Reconsideration filed by KASA Radio Hogar, Inc.
(``KASA Radio''), licensee of radio station KDAP(AM). On June 7,
2001, the Enforcement Bureau issued a Forfeiture Order1 assessing
a $15,000 forfeiture against KASA Radio for willful violation of
the following sections of the Commission's Rules (``Rules''):
73.54(d) (failure to provide a copy of the station's antenna
resistance and reactance measurements during an inspection);
73.1350(c)(1) (failure to have the proper monitoring equipment
installed at the duty operator position); 73.1590(a)(6) (failure
to conduct annual equipment performance measurements); and
73.3526(a)(2) (failure to maintain a public inspection file).2
In the Forfeiture Order, the Bureau rejected KASA Radio's
inability to pay claim because KASA Radio submitted financial
information only for KDAP(AM), not for the licensee, KASA Radio.
2. On July 6, 2001, KASA Radio filed a Petition for
Reconsideration in which it does not dispute the violations, but
contends that the Bureau should have considered the financial
information for radio station KDAP(AM) only. KASA Radio contends
that neither the statute under which the forfeiture was assessed,
nor the Commission's Rules, require that financial information
from all of a licensee's operations be evaluated in determining
whether a proposed forfeiture should be reduced because of a
licensee's ability to pay. KASA Radio also asserts that under
precedent for determining an ability to pay, entire enterprises
are generally evaluated only where violations are common to
various sections of the enterprise. In support of this
assertion, KASA Radio cites to Hill Country Radio, Inc.,3 in
which four separate Notices of Apparent Liability were issued to
Hill Country Radio for engaging in unauthorized transfers of
control of the four radio stations licensed to it. KASA Radio
contends that it was appropriate for the Mass Media Bureau to
consider the financial circumstances of Hill Country Radio in
determining whether to reduce a forfeiture based on inability to
pay because the transfer of control had occurred for the
licensee, not for any individual station.
3. In determining an appropriate forfeiture amount,
Section 503(b)(2)(D) of the Communications Act of 1934, as
amended (``Act''),4 requires the Commission to consider a
violator's ability to pay. The Commission has determined that a
company's gross receipts are generally the best indicator of its
ability to pay a forfeiture. PJB Communications of Virginia,
Inc., 7 FCC Rcd 2088, 2089 (1992). The Commission has also
concluded that it is appropriate to take into account ``income
derived from other affiliated operations, as well as the
financial status of the station(s) in question.'' Emery
Telephone, 13 FCC Rcd 23854, 23859-60 (1998), recon. denied, 15
FCC Rcd 7181 (1999) (emphasis added). As the Common Carrier
Bureau stated in Hinton Telephone Company of Hinton, Oklahoma:
reviewing the data for consolidated operations rather
than financial data limited to just [one station]
accurately portrays whether a licensee can pay a
proposed forfeiture. Our determination of a licensee's
ability to pay should reflect whether the licensee in
general is financially capable of paying a forfeiture,
not whether financial data from a limited portion of
its operations can sustain a forfeiture.
7 FCC Rcd 6643, 6644 (CCB 1992), review denied, 8 FCC Rcd 5176
(1993). Thus, it is the Commission's general practice to
consider the financial condition of a licensee's consolidated
operations, not just the financial condition of an individual
station or a limited portion of its operations.
4. KASA Radio's reliance on Hill Country Radio, Inc. is
misplaced. Nothing in Hill Country Radio, Inc. indicates that
the Mass Media Bureau would not have considered the financial
condition of the licensee's consolidated operations if the
unauthorized transfers of control had not involved all four of
its licenses. Furthermore, in KTBB Radio, Inc., the Mass Media
Bureau rejected the inability to pay claim of a licensee cited
for unauthorized broadcast of a telephone conversation at an
individual station because the licensee failed to provide profit
and loss statements for other stations under common ownership.5
Therefore, Commission precedent does not support KASA Radio's
contention that the Commission evaluates entire enterprises only
where violations are common to various sections of the
enterprise. Consequently, we deny KASA Radio's Petition for
Reconsideration and reject its request for rescission or
reduction of the forfeiture based on its purported inability to
5. Accordingly, IT IS ORDERED THAT, pursuant to Section
405 of the Act6 and Section 1.106 of the Rules,7 the Petition for
Reconsideration of the Forfeiture Order in this proceeding IS
6. IT IS FURTHER ORDERED that, pursuant to Section 503(b)
of the Act8 and Section 1.80 of the Rules,9 KASA Radio Hogar,
Inc. shall pay the amount of fifteen thousand dollars ($15,000)
for the above-stated violations within 30 days of the release
date of this Order. Payment may be made by check or money order,
drawn on a U.S. financial institution, payable to the Federal
Communications Commission. The remittance should be marked
``NAL/Acct. No. 200132940002'' and mailed to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice
for collection pursuant to Section 504(a) of the Act.10 Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Group, 445 Twelfth Street, S.W.,
Washington, D.C. 20554.11
7. IT IS FURTHER ORDERED that, a copy of this Memorandum
Opinion and Order shall be sent by Certified Mail Return Receipt
Requested to Paul Brown, Esq., counsel for KASA Radio of Hogar,
Inc., at Wood, Maines & Brown, 1827 Jefferson Place, NW,
Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 KASA Radio Hogar, Inc., 16 FCC Rcd 11934 (EB 2001).
2 47 C.F.R. §§ 73.54(d), 73.1350(c)(1), 73.1590(a)(6),
3 14 FCC Rcd 17708 (MMB 1999).
4 47 U.S.C. § 503(b)(2)(D).
5 10 FCC Rcd 13046 (MMB 1995).
6 47 U.S.C. ' 405.
7 47 C.F.R. § 1.106.
8 47 U.S.C. § 503(b).
9 47 C.F.R. § 1.80.
10 47 U.S.C. ' 504(a).
11 47 C.F.R. ' 1.1914.