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                           Before the
                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)    )
Shasta,1 California             )
Facility ID # 64414             )                            

                        FORFEITURE ORDER

   Adopted: November 28, 2001           Released:  November   30, 

By the Chief, Enforcement Bureau:

     1.   In this Forfeiture Order ("Order"), we find that M.C. 
Allen Productions (``Allen'') has 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) (``KMCA'').  
Based on our review of the facts and circumstances and after 
considering Allen's response to our Notice of Apparent Liability 
for Forfeiture, 16 FCC Rcd 9505 (Enforcement Bureau 2001) 
(``NAL''), we conclude that Allen is liable for a forfeiture in 
the amount of ten thousand dollars ($10,000). 

     2.   In Application of State of Oregon, 15 FCC Rcd 15456, 
15458 n. 13 (2000) (``State of Oregon'') (subsequent history 
omitted),2 the Commission referred to the Enforcement Bureau the 
question whether 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 determined that 
KMCA had maintained its main studio at locations authorized by 
the Commission's rules.3  However, as explained in the NAL, it 
also appeared that Allen violated various statutory and rule 
provisions in its operation of KMCA.   

     3.   At the outset, we observed in the NAL that Allen then 
held a license to operate KMCA as a nondirectional AM station in 
the community of Burney on 1450 kHz.  However, prior to its most 
recent renewal on July 14, 1999, Allen had relocated KMCA to 
Shasta, a community some 55 miles to the southwest, adjacent to 
the larger community of Redding, California.4  Allen's only 
apparent authority for this move were permits that authorized 
Allen to construct a new nondirectional AM station in Shasta.5 

     4.   Following renewal, Allen resumed broadcasting in 
Shasta, purportedly pursuant to program test authority.6  
However, Allen did not file the required license application 
until November 5, 1999.7  Moreover, in that application, Allen 
reported that it had not fully met all the terms, conditions and 
obligations set forth in the permit.8  Among other things, the 
license application reflected that the overall height of the 
antenna differed from that authorized by the permit and that the 
tower was toploaded instead of being a standard non-toploaded 
tower.  Shortly after filing the referenced license application, 
Allen obtained on December 15, 1999, special temporary 
authorization (``STA'') to operate from a site different than the 
one referenced in its license application.9  Allen began 
broadcasting from this new site on December 20, 1999.  Although 
its STA expired on May 30, 2000, Allen did not obtain additional 
STA.  Nonetheless, Allen continued to broadcast as if it had such 
authority.10  Moreover, on or about February 20, 2001,11 Allen 
commenced broadcasting (1460 kHz), purportedly in accordance with 
its modified permit (see File No. BMP-20000324AAT, granted August 
30, 2000).12  However, although the license application reflected 
that the station was an AM directional, there was no indication 
that Allen had complied with 47 C.F.R.  73.1620(a)(4).  That 
provision requires permittees of an AM station with a directional 
antenna system to submit a proof of performance and authorizes 
program tests only after issuance of staff approval.  Finally, 
once Allen had abandoned Burney, it also ceased maintaining a 
telephone number in Burney or a toll-free number.  In view of the 
above, the NAL cited Allen for apparent violations of 47 U.S.C.  
301 (License for radio communication or transmission of energy) 
and 47 C.F.R.  73.1615 (Operation during modification of 
facilities), 73.1620 (Program tests) and 73.1125(e) (Station main 
studio location).
     5.   In its response to the NAL, Allen raises several 
arguments.13  First, Allen suggests that the Bureau exceeded its 
authority by inquiring into matters that were not specifically 
referred by the Commission in State of Oregon.  Second, Allen 
objects ``strenuously'' to the NAL's conclusion that KMCA's 
operations were unauthorized, and it challenges our conclusion 
that the violations appeared intentional.  Allen suggests that 
the construction permits granted by the staff authorized its 
change of transmitter site and community of license and that it 
broadcast on KMCA only during periods of program test authority 
and STA.  Third, Allen claims that the NAL proposed a $7,000 
forfeiture for the failure to maintain a local telephone number 
even though the NAL characterized the violation as minor, and 
notwithstanding Commission precedent that assessed more modest 
forfeitures for the same violations.14  Allen suggests that 
imposition of the base amount for a main studio violation under 
the circumstances of its case is arbitrary and grossly excessive, 
in light of its ``unblemished'' record.  Finally, Allen reports 
that, upon receipt of the NAL, it ceased broadcast operations on 
KMCA before receiving STA to resume broadcasting at its now 
licensed site.15  Allen concludes that we should cancel the 
forfeiture, or, alternatively, that we should impose only a 
nominal amount.


     6.   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.  To 
extend its authority beyond 30 days, the licensee must submit an 
informal request prior to the 30th day.  Moreover, when the 
licensee holds a permit that authorizes both a change in 
frequencies and directional facilities, the licensee must request 
and obtain authority from the Commission prior to using any new 
installation authorized by the permit.  Section 73.1620(a)(1) of 
the Commission's rules, 47 C.F.R.  73.1620(a)(1), authorizes the 
permittee of a non-directional AM station to commence program 
tests.  However, program test authority is conditioned, inter 
alia, upon completion of construction in accordance with the 
terms of the permit.  Moreover, 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 additional provisos are met.  
Specifically, in addition to completion of construction in 
accordance with the terms of the permit, 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.''  Further, the 
applicant must submit a proof of performance containing exhibits 
required by section 73.186 of the Commission's rules.16  Finally, 
a permittee may not commence program tests prior to issuance of 
staff approval.  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-free number.

     7.   Initially, we reject Allen's argument that we had no 
authority to investigate and act upon matters in addition to the 
one referred by the Commission.  Sections 0.111 and 0.311 of the 
Commission's rules, 47 C.F.R.  0.111 and 0.311, give the 
Enforcement Bureau primary responsibility for enforcing the 
Commission's rules relative to broadcast operations.  Our 
investigation into whether Allen operated KMCA in accordance with 
those rules involves nothing more than action within the scope of 
that authority.  Further, nothing in the Commission's Order 
limited the scope of the Enforcement Bureau's authority to 
investigate and assess a forfeiture against Allen for violations.   

     8.   After carefully considering all the facts and 
circumstances surrounding Allen's operation of KMCA, we remain 
convinced that Allen broadcast over KMCA without authority over 
an extended period.  As admitted repeatedly by Allen,17 it ceased 
broadcasting from its licensed facilities in Burney well before 
its most recent license renewal.  Subsequent to renewal (July 14, 
1999), Allen resumed broadcast operations on KMCA from its 
construction permit site.  Allen did so without complying with 47 
C.F.R.  73.1615 in that it failed to submit the appropriate 
request.  Moreover, Allen failed to obtain program test 
authority.  Contrary to 47 C.F.R.  73.1620(a)(1), Allen 
commenced broadcasting on KMCA in September 1999, nearly two 
months before it filed the necessary license application, not the 
ten days allowed by the rule.  See note 6, supra.  Even then, 
Allen's license application reveals that Allen did not complete 
construction in accordance with its permit.  Thus, prior to 
December 15, 1999, Allen never had authority to begin broadcast 
operations in Shasta.  Allen's permits authorized construction of 
facilities there, not commencement of broadcast operations, and 
Allen never fulfilled the conditions necessary to authorize 
program tests.  Likewise, subsequent to the expiration of STA, 
which it held between December 15, 1999, and May 30, 2000, Allen 
again continued to broadcast from its STA site even though it did 
not have authority to do so.  Its June 5, 2000, request for STA 
remained merely a request, nothing more.  In similar situations, 
we have observed that the mere filing of an application does not 
constitute authority to operate.18  Moreover, the filing of 
Allen's penultimate license application in February 2001, 
following partial completion of construction, conferred no right 
to resume broadcasting.  The record reveals that Allen had not 
completed construction of its nighttime directional array, did 
not submit a proof of performance, and did not request or wait 
for staff approval before commencing broadcast operations.  Thus, 
Allen had not fulfilled the requirements of 47 C.F.R. 
73.1620(a)(4) and therefore did not have program test authority.  
In short, beginning in September 1999 and concluding with its 
cessation of broadcast operations following issuance of the NAL, 
Allen's operation of KMCA was not in accordance with its license 
or in accordance with any other grant of authority, except for 
the six-month period covered by the STA.  Rather, Allen operated 
from an unauthorized location and, beginning in February 2001, 
operated on an unauthorized frequency.  Finally, Allen did not 
maintain a local telephone number or a toll-free number in 
Burney, contrary to 47 C.F.R.  73.1125(e), since its last 
renewal of license. 

     9.   Section 503(b)(1) of the Act, 47 U.S.C.  503(b)(1),19 
provides that any person who willfully or repeatedly fails to 
comply with the terms and conditions of his license, the 
Communications Act 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,20 while ``repeatedly'' means more than once.21  After 
considering the record, including Allen's response to the NAL, we 
conclude that Allen, for most of the time following renewal of 
license to the present, operated KMCA without authority.22  Allen 
commenced broadcasting without complying either with the 
requirements for operation during modification of facilities or 
for obtaining program test authority.  Upon expiration of STA, 
Allen continued to broadcast even though the staff did not act 
favorably on its request to renew STA.  Upon partial completion 
of construction of its new facilities, Allen commenced broadcast 
operations, again without qualifying for program test authority.  
In this regard, contrary to 47 C.F.R.  73.1620(a)(4), Allen did 
not request or receive explicit staff approval.  We thus conclude 
that Allen's violations with respect to unauthorized operations 
were both willful and repeated.  Finally, we also conclude that 
Allen's failure to maintain an appropriate telephone number in 
Burney was both willful and repeated.

     10.          In assessing a forfeiture, we take into 
account the statutory factors set forth in Section 503(b)(2)(D) 
of the Act, 47 U.S.C.  503(b)(2)(D).  They 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.23  
Thus, the total base amount is $15,000.  As for adjustments, 
after considering the entire record, we now believe that 
insufficient evidence exists to justify a conclusion that Allen's 
violations were intentional.  There is simply nothing before us 
that shows that Allen knew that it was violating the rules but 
continued to do so despite that knowledge.  Thus, we do not 
include any upward adjustment for either the unauthorized 
location or unauthorized frequency violations.  Further, in 
mitigation, we find that Allen's main studio violation was 
relatively minor in nature.24  Consequently, we do not assess the 
base amount for a main studio violation but include in the total 
forfeiture only a minor portion of the recommended base amount 
for a main studio rule violation, or $2,000.  We therefore reject 
Allen's charge that the amount assessed for the main studio rule 
violation is arbitrary or grossly excessive.  Further, we reject 
Allen's contention that its record is unblemished, thereby 
warranting a reduction or cancellation of the forfeiture.  As 
noted, Allen relocated KMCA from Burney to Shasta without 
authority prior to its last renewal.  See  3, supra.  Even 
though an intervening renewal prevents imposition of a forfeiture 
for all violations related to KMCA's unauthorized relocation,25 
we may still consider the facts in determining, among other 
things, whether the licensee has a history of overall 
compliance.26  Finally, although Allen ceased broadcast 
operations upon receipt of the NAL, the Commission has long held 
that remedial action to correct a violation, while commendable, 
will generally not nullify a forfeiture penalty.  See Station 
KGVL, Inc., 42 FCC 2d 258, 259 (1973).  On balance, we find that 
a $10,000 forfeiture should be imposed.    

                        ORDERING CLAUSES

     11.  Accordingly, IT IS ORDERED THAT, pursuant to Section 
503(b) of the Act,27 and sections 0.111, 0.311 and 1.80 of the 
Commission's rules,28 M.C. Allen Productions FORFEIT to the 
United States the sum of ten thousand dollars ($10,000) for: 
violating 47 U.S.C.  301 and 47 C.F.R.  73.1615 and 73.1620, 
regarding a licensee's operation during modification of 
facilities and a permittee's commencement of program tests; and 
for violating 47 C.F.R.  73.1125(e) by failing to maintain a 
local or toll-free number for the community of Burney. 

     12.  IT IS FURTHER ORDERED THAT, payment of the forfeiture 
shall be made in the manner provided for in 47 C.F.R.  1.80, 
within thirty (30) days Order.  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 of 
the Act, 47 U.S.C.  504.  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.  Requests 
for payment of the full amount of this Forfeiture Order under an 
installment plan should be sent to: Chief, Revenue and 
Receivables Operations Group, 445 12th Street, S.W., Washington, 
D.C. 20554.29 

     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 

ORDER shall be sent by Certified Mail Return Receipt Requested 
to: M.C. Allen Productions, 4531 Shannon Place, Redding, 
California 96001; with a copy to: Christopher D. Imlay, Esq., 
Booth, Freret, Imlay & Tepper, P.C., 5101 Wisconsin Avenue, N.W., 
Suite 307, Washington, D.C. 20006.

                              FEDERAL COMMUNICATIONS COMMISSION

                              David H. Solomon
                              Chief, Enforcement Bureau


1  On July 13, 2001, the Commission's staff granted BL-
20010612AHZ, thereby changing KMCA's community of license from 
Burney to Shasta, California. 

2  In that decision, the Commission reaffirmed the dismissal of 
an application whose proposed contour overlapped KMCA'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 KMCA's licensed facilities in Burney nor requested a 
waiver of 47 C.F.R. 73.37(a).  The applicant had contended, 
inter alia, that there was no need to protect KMCA's licensed 
facilities because Allen had already relocated KMCA and its main 
studio out of Burney.  The Commission observed that, 
notwithstanding Allen's alleged move, protection of the licensed 
facilities of KMCA was still appropriate in the event Allen found 
it impossible to construct in accordance with its permit, which 
allowed KMCA to construct a new AM station in Shasta, California.  
The Commission also noted that the applicant's allegations 
regarding KMCA's main studio did not justify a waiver of 47 
C.F.R.  73.37(a).    

3  We found that Allen always maintained KMCA's main studio 
within the principal community contour of Station KRRX(FM), 
Burney, and thus remained in compliance with 47 C.F.R.  

4  See letter from Mark C. Allen to Magalie Salas, Secretary, 
Federal Communications Commission, dated April 17, 1998.  In that 
letter, Allen acknowledged that KMCA ``went on the air for 
service'' in Shasta on January 1, 1998 and had become an 
``established Business in the community.''  [sic]  See also 
letters from Mark C. Allen to Charles W. Kelley, Chief, 
Investigations and Hearings Division, Enforcement Bureau, dated 
March 12, 2001 and April 9, 2001.

5 See File Nos. BP-19970903AA, granted June 12, 1998, and BMP-
19980901AA, granted January 19, 1999.  See also letters from 
Allen's president, Mark C. Allen, to Charles W. Kelley, Chief, 
Investigations and Hearings Division, Enforcement Bureau, dated 
March 12, 2001 and April 9, 2001; letter from Mark C. Allen to 
Magalie Salas, Secretary, Federal Communications Commission, 
dated April 17, 1998.  

6  See letter from Mark C. Allen to Charles W. Kelley, Chief, 
Investigations and Hearings Division, Enforcement Bureau, dated 
April 9, 2001.  Initially, it appeared that Allen had resumed 
broadcast operations in Shasta as early as July 14, 1999.  
However, as clarified by its response to the NAL, Allen resumed 
daytime broadcasting in September 1999.  In any event, as 
explained infra at  8, such broadcasts occurred before Allen had 
authority to broadcast in Shasta. 

7  See File No. BL-19991105AAZ, dismissed August 30, 2000.   

8  See id., Section II, Question 4. 

9  See File No. BSTA-19991112ABW, granted December 15, 1999. 

10  See letter from Mark C. Allen to Charles W. Kelley, Chief, 
Investigations and Hearings Division, Enforcement Bureau, dated 
April 9, 2001.  We note that Allen filed on June 5, 2000, a 
request for further STA.  However, the staff ultimately denied 
that request on May 18, 2001, subsequent to the issuance of the 

11  The NAL at  3 erroneously states February 2000; the context 
makes clear that we meant February 2001. 

12  See BL-20010227ABW (dismissed May 18, 2001).  See also letter 
from Mark C. Allen to Charles W. Kelley, Chief, Investigations 
and Hearings Division, Enforcement Bureau, dated April 9, 2001. 

13 Allen's counsel also makes several factual assertions as to 
Allen's intent or beliefs, none of which are supported by an 
affidavit from a person with personal knowledge of the facts 
alleged or by any other reliable evidence.  Hence, they will not 
be considered.  

14  Allen cites, for example, Rasa Communications Corp., Notice 
of Apparent Liability, 11 FCC Rcd 13243, 13246 (Mass Media Bureau 
1996).  In that case, the Mass Media Bureau proposed a forfeiture 
of $2,000 for brief failures to maintain a local telephone number 
and the public file. 

15  See BSTA-20010524AAP, granted May 25, 2001. 

16  47 C.F.R.  73.186.

17  See letters listed supra note 4. 

18  See KNFL, Inc., Forfeiture Order, 15 FCC Rcd 10286 
(Enforcement Bureau), recon. denied, 15 FCC Rcd 25527 (2000);  
WRHC Broadcasting Corp., Notice of Apparent Liability, 15 FCC Rcd 
5551, 5553-54 (Enforcement Bureau 2000); Southeast Telephone, 
Inc., Notice of Apparent Liability, 15 FCC Rcd 4222 (Enforcement 
Bureau 2000). 

19  See also section 1.80(a)(1) and (2) of the Commission's 
rules, 47 C.F.R.  1.80(a)(1) and (2). 

20  See Southern California Broadcasting Co., 6 FCC Rcd 4387 

21  See Hale Broadcasting Corp., 79 FCC 2d 169, 171 (1980). 

22  We expect licensees to know and comply with the Commission's 
rules, and we will not excuse violations absent clear mitigating 
circumstances.  See KEOT, Inc., Forfeiture Order, 16 FCC Rcd 683 
(Enforcement Bureau 2001). 

23  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 303 (1999) (``Forfeiture Guidelines''). 

24  See Rasa Communications Corp., supra note 14. 

25  See 47 U.S.C. 503(b)(6). 

26  See Enserch Corporation, 15 FCC Rcd 13551, 13554 (2000).  See 
also Forfeiture Guidelines, 12 FCC Rcd at 17103-04.

27  47 U.S.C.  503(b).

28  47 C.F.R.  0.111, 0.311, 1.80.

29 See 47 C.F.R.  1.1914.