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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 )
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
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
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.
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,
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. IT IS FURTHER ORDERED THAT a copy of this FORFEITURE
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
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
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.