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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
American Radio Brokers, Inc. ) File No. EB-00-AN-033
Licensee of Station KAXX(AM) ) NAL/Acct. No. X3278001
Eagle River, Alaska )
MEMORANDUM OPINION AND ORDER
Adopted: March 30, 2001 Released: April 3, 2001
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny a petition for reconsideration filed by American Radio
Brokers, Inc. (``American''), licensee of Station KAXX(AM),
Eagle River, Alaska, of a Forfeiture Order1 which issued a
$4,000 forfeiture against American for willful violation of
Section 1.89(b) of the Commission's Rules (``Rules'').2 The
noted violation involved the failure to respond to written
2. On January 21, 1999, agents from the FCC's Anchorage,
Alaska Resident Agent Office (``Anchorage Office'') inspected
Station KAXX(AM). During the inspection, the agents observed
numerous violations of the Commission's rules involving lack
of station authorization or renewals, equipment performance
measurements and logs, administrative and station files,
improper transmission system control and tower lighting
3. On June 11, 1999, the Anchorage Office sent a Notice of
Violation (``NOV'') to American detailing the violations
observed during the January 21, 1999 inspection and requiring
a written response from American within 20 days. American did
not respond to this NOV. On or around July 1, 1999, Chester
Coleman, president and owner of American, called the Anchorage
Office and requested an extension of time to respond to the
NOV. The Anchorage Office orally granted the request.
However, American did not respond to the NOV.
4. On November 3, 1999, the Anchorage Office sent a second
NOV to American, citing American for failing to respond to the
first NOV and directing American to provide a response to the
first NOV within 15 days. American did not respond to the
second NOV. On or around March 1, 2000, Mr. Coleman called
the Anchorage Office on a unrelated matter. At this time, an
agent from the Anchorage Office reminded Mr. Coleman that he
had not yet responded to either of the NOVs. Mr. Coleman
asked for another extension of time to respond. The Anchorage
Office granted American a 30-day extension of time to respond
to the NOVs and warned Mr. Coleman that failure to respond
within 30 days could result in administrative sanctions.
American did not respond to the NOVs within the 30-day period.
5. On July 28, 2000,3 the Anchorage Office issued a Notice
of Apparent Liability for Forfeiture (``NAL'') in the amount
of $4,000 to American for failure to respond to written
Commission inquiries in willful violation of Section 1.89(b)
of the Rules.4 American did not respond to the NAL.
6. On October 13, 2000, the Enforcement Bureau issued a
Forfeiture Order assessing a $4,000 forfeiture against
American for failure to respond to written Commission
inquiries in willful violation of Section 1.89(b) of the
Rules. American filed a petition for reconsideration of the
Forfeiture Order on November 13, 2000, seeking rescission of
the forfeiture amount. In the petition, American claims that
it cannot be charged with a violation of Section 1.89(b)
because it recently responded to the NOV and provided an
explanation as to why it was unable to respond earlier.
American also argues that the Commission ``lacks the moral
authority'' to impose forfeitures on its regulatees who
violate the Rules because the Commission itself often fails to
comply with the requirements of the Rules and the
Communications Act of 1934, as amended (``Act'').
7. We reject American's claim that it cannot be charged
with a violation of Section 1.89(b) because it recently
responded to the NOV and provided an explanation as to why it
was unable to respond earlier. Section 1.89(b) of the Rules
explicitly requires the recipient of an NOV to respond in
writing to that Notice within ten days of receipt or any other
time period specified within the NOV. If an answer or
acknowledgement of the NOV cannot be made within the specified
period due to ``illness or other unavoidable circumstance,'' a
response still must be submitted ``at the earliest practicable
date with a satisfactory explanation of the delay.''5 The
Anchorage Office issued the first NOV to American on June 11,
1999. Despite being granted two extensions of time to respond
and being explicitly warned that failure to respond could
result in administrative sanctions, American did not submit a
response to this NOV until November 9, 2000, one month after
the Forfeiture Order was issued. The only explanation that
American offers for this approximately 17 month delay in
responding is that ``[t]he press of other exigent matters has
prevented my response until now.'' We conclude that American
has not provided evidence of ``unavoidable circumstances''
that would explain its 17 month delay in responding to the
8. We also reject American's argument that the Commission
``lacks the moral authority'' to impose forfeitures on its
regulatees who violate the Rules. Section 503(b) of the Act6
and Section 1.80 of the Rules7 clearly authorize the
Commission to assess forfeiture penalties on regulatees who
violate the Act or the Rules. American's assertions
concerning the Commission's ``moral authority'' provide no
basis for reconsideration of the Forfeiture Order.
Accordingly, we deny its petition for reconsideration.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
405 of the Act,8 and Section 1.106 of the Rules,9 American
Radio Brokers, Inc.'s petition for reconsideration of the
Forfeiture Order IS DENIED.
10. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules10 within 30 days of
the release of this 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(a) of the Act.11 Payment shall be made by mailing a check
or similar instrument, payable to the order of the ``Federal
Communications Commission,'' to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should note the NAL/Acct. No. X3278001. Requests for
full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.12
11. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Chester
P. Coleman, c/o American Radio Brokers, Inc., 1255 Post
Street, Suite 1011, San Francisco, California 94109, and to
David Tillotson, Esq., 4606 Charleston Terrace, NW,
Washington, D.C. 20007-1911.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 American Radio Brokers, Inc., 15 FCC Rcd 19712 (Enf. Bur.,
2 47 C.F.R. § 1.89(b).
3 The Anchorage Office originally released the NAL and mailed
it to American via certified mail return receipt requested on
June 13, 2000. The U.S. Postal Service certified mail card came
back to the Anchorage Office unsigned on July 20, 2000, and the
unclaimed envelope containing the NAL came back to the Anchorage
Office on July 26, 2000. The Anchorage Office therefore re-
released the NAL and mailed it to American via certified mail
return receipt requested and regular first class mail on July 28,
2000. The U.S. Postal Service certified mail card and envelope
containing the re-released NAL came back to the Anchorage Office
marked ``REFUSED'' on August 9, 2000. The first class mail copy
of the re-released NAL was not returned to the Anchorage Office.
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
X3278001 (Enf. Bur., Anchorage Office, released July 28, 2000).
5 47 C.F.R. § 1.89(b).
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 405
9 47 C.F.R. § 1.106.
10 47 C.F.R. § 1.80.
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.