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                           1.   Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
Peninsula Communications, Inc.   )    File No. EB 01-IH-0403
                                 )    NAL/Acct No. 200132080060
Former    licensee     of     FM )
translator   stations    K285EF, )
Kenai, Alaska;                   )
K283AB, Kenai/Soldotna, Alaska;  )
K257DB, Anchor Point, Alaska;    )
K265CK, Kachemak City, Alaska;   )
K272CN, Homer, Alaska; and       )
K274AB   and   K285AA,   Kodiak, 
Alaska




      NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

   Adopted:  August 23, 2001            Released: August 29, 2001

By the Commission:  

     1.  In this Notice of Apparent Liability for Forfeiture and 
Order (``NAL''), we find that Peninsula Communications, Inc. 
(``Peninsula'') has apparently violated Section 301 of the 
Communications Act of 1934, as amended (the ``Act''), 47 U.S.C.  
301.  The apparent violations arise from continued operation of 
translator stations K285EF, Kenai; K283AB, Kenai/Soldotna; 
K257DB, Anchor Point; K265CK, Kachemak City; K272CN, Homer; and 
K274AB and K285AA, Kodiak subsequent to our order to terminate 
such operations.  See Peninsula Communications, Inc., FCC 01-159, 
released May 18, 2001 (``May 2001 MO&O'').1  We conclude that 
Peninsula is apparently liable for a forfeiture in the amount of 
one hundred forty thousand dollars ($140,000).  We also order 
Peninsula to submit an affidavit informing us whether Peninsula 
has ceased operating the above-captioned translators and whether 
it intends to operate those translators at any time in the future 
absent authorization to do so.  In this regard, we note that 
continued unauthorized operation may lead to an order to show 
cause to revoke Peninsula's other Commission licenses.   

                         I.  BACKGROUND

     2.  This case involves our eligibility and licensing 
requirements for FM translators, which appear in 47 C.F.R.  
74.1232(d).  Briefly, that subsection provides that authorization 
for an ``other-area'' or ``non-fill-in'' translator will not be 
granted to persons interested in or connected with the commercial 
``primary FM station.''2  These rules became effective on June 1, 
1991, with pre-existing translators required to comply no later 
than June 1, 1994.3  As the Commission explained in establishing 
these rules, translators are intended to provide ``supplementary 
service to areas in which direct reception of FM radio broadcast 
stations is unsatisfactory due to distance or intervening terrain 
barriers,'' and the governing rules are meant ``to ensure that 
the translator service does not adversely affect the operation of 
FM radio broadcast operations.''  Amendment of Part 74 of the 
Commission's Rules Concerning FM Translator Stations, supra note 
3, 8 FCC Rcd at 5093.       

     3.  Peninsula was the licensee of the captioned FM 
translator stations K285EF, Kenai; K283AB, Kenai/Soldotna; 
K257DB, Anchor Point; K265CK, Kachemak City; K272CN, Homer; and 
K274AB and 285AA, Kodiak, Alaska.  All of those translator 
stations were non-fill-in stations that rebroadcast primary 
stations licensed to Peninsula.  All of the translators, except 
the Kodiak translators, have been operated by Peninsula in 
violation of 47 C.F.R.  74.1232(d) since at least June 1, 1994.4    

     4.  In September 1996, the staff, in addressing petitions to 
deny filed against some of the translators' 1995 renewal 
applications, 5 determined that Peninsula was operating the 
translator stations in violation of our translator rules' 
ownership restrictions.  See 47 C.F.R. 74.1232(d).  
Nevertheless, the staff deferred action on the 1995 renewal 
applications for a period of 60 days to allow Peninsula to file 
assignment applications in order to come into compliance with 47 
C.F.R. 74.1232(d).  See Letter to Jeffrey D. Southmayd, Esq., 
Ref. No. 1800B4-AJS (Chief, Audio Services Division, Mass Media 
Bureau, September 11, 1996) (``September 1996 letter'').  
Ultimately, acceptable assignment applications were filed.6  

     5.  On November 6, 1997, the staff granted the assignment 
applications, as well as Peninsula's 1995 renewal applications, 
conditioned upon consummation of the authorized assignments.  In 
addition, the staff conditioned consummation of the assignments 
on grant of the recently-filed 1997 renewal applications.  See 
Letter to Jeffrey D. Southmayd, Esq., Ref. No. 1800B3-BSH (Chief, 
Audio Services Division, Mass Media Bureau, November 6, 1997) 
(``November 1997 staff decision'').  The November 1997 staff 
decision stated that failure to meet the divestiture condition 
would render grant of the 1995 renewal applications null and 
void.  Peninsula did not seek reconsideration or review of the 
November 1997 staff decision.  However, other entities 
(collectively referred to as ``Petitioners'') filed both a 
petition for reconsideration and an application for review of the 
November 1997 staff decision. 

     6.  In December 1998, the Commission dismissed and  denied, 
respectively,  Petitioners'  petition  for  reconsideration  and 
their  application  for   review.   See   December  1998   MO&O.  
Essentially, Petitioners had argued  that the staff should  have 
revoked Peninsula's licenses because of the rule violations  and 
that the staff erred in concluding instead that Peninsula  could 
sell the subject translator stations.  In our decision, we noted 
that,  in  the   absence  of  an   unresolved  basic   character 
qualification  issue,  ``there  can  be  no  doubt  as  to   the 
Commission's authority to cure or  remedy [the violation of  the 
ownership restrictions]  by  granting the  renewal  applications 
conditioned on divestiture of the translators.''  December  1998 
MO&O, 13 FCC Rcd at 23996.   In the December 1998 MO&O, we  also 
granted Peninsula's 1997  renewal applications,7 conditioned  on 
consummation of the authorized assignments, and denied  requests 
for waiver of 47 C.F.R. 74.1231(b), the over-the-air  delivery 
restrictions, filed by Coastal for the Kodiak translators.8 

     7.  Peninsula and Glacier Communications, Inc. sought 
reconsideration of the December 1998 MO&O.  Peninsula disputed, 
for the first time, the conditional grants of the 1995 and 1997 
renewal applications and the determination that the seven subject 
translators had been operating in violation of 47 C.F.R.  
74.1232(d) since June 1, 1994.  In addition, Peninsula, but not 
Coastal, requested reconsideration of the denial of requests for 
waivers of 47 C.F.R. 74.1231(b) for the Kodiak translators. 

     8.  On February 14, 2000, we dismissed Peninsula's petition 
for reconsideration of the December 1998 MO&O.  Peninsula 
Communications, Inc., 15 FCC Rcd 3293 (2000) (``February 2000 
MO&O'').  We ordered Peninsula to consummate the authorized 
assignments within thirty days of the decision, and we directed 
the staff to rescind the conditional grants of the 1995 and 1997 
license renewal applications, cancel the relevant call signs and 
terminate the translators' operating authority if Peninsula did 
not comply with the divestiture requirement.  February 2000 MO&O, 
15 FCC Rcd at 3294, 3296.  On February 23, 2000, Peninsula filed 
with the Commission a motion to stay the effect of the December 
1998 MO&O and the February 2000 MO&O pending the filing and 
resolution of an appeal it intended to file. 

     9.  On March 8, 2000, Peninsula filed an appeal of the 
Commission's February 2000 MO&O with the United States Court of 
Appeals for the District of Columbia Circuit (``Court'').  That 
same day, Peninsula filed an Emergency Motion for Stay of the 
February 2000 MO&O with the Court.  On March 14, 2000, the Court 
denied Peninsula's Emergency Motion for Stay.  The next day 
Peninsula filed with the Commission a pleading styled ``Rejection 
of Conditional License Renewal and Assignment of License Grants'' 
(``Rejection of Conditional Grants'').  By order dated July 11, 
2000, the Court dismissed Peninsula's appeal without prejudice to 
refiling following the Commission's resolution of the ``Rejection 
of Conditional Grants.'' 

     10.  In our May 2001 MO&O, we dismissed as untimely 
Peninsula's ``Rejection of Conditional Grants.''  In addition, we 
rescinded the 1995 and 1997 conditional grants of renewal; 
rescinded the conditional grants of assignment; dismissed the 
1995 and 1997 renewal applications; dismissed the 1997 assignment 
applications; canceled the call signs and terminated Peninsula's 
operating authority for the seven captioned translator stations.  
In this regard, we ordered Peninsula to terminate operations for 
the translator stations effective at 12:00 midnight on the day 
after release of that order, and we warned Peninsula that further 
operations by it after that time may subject it to serious 
sanctions, including but not limited to forfeitures.9  Thus, in 
order to comply with our May 2001 MO&O, Peninsula was obligated 
to cease operations by 12:00 midnight on May 19, 2001.  

     11.  Commission records reflect that Peninsula and its 
counsel were served with our May 2001 MO&O on May 21, 2001, and 
that Peninsula itself was served with the May 2001 MO&O no later 
than May 30, 2001.  Nonetheless, information provided to the 
Commission by our field personnel in Alaska and by competitors 
indicates that Peninsula has not shut down any of the translators 
and is continuing to broadcast the signals of its primary 
stations.  In addition, Peninsula's counsel has informed 
Commission staff in a telephone conversation that Peninsula has 
no intention of terminating its operations on the captioned 
translators.   

                         II.  DISCUSSION

     12. 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.''  As explained above, Peninsula's licenses for the seven 
captioned translators were canceled as of midnight May 19.  
Nevertheless, Peninsula has continued to operate those stations 
in apparent defiance of our order to terminate such operations.  

     13.  Section 503(b)(1) of the Act, 47 U.S.C.  503(b)(1) 
provides that any person who willfully or repeatedly fails to 
comply with the provisions of the Communications Act or a 
Commission order shall be liable for a forfeiture penalty.10  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 Communications Act,11 while ``repeatedly'' means 
more than once.12 The information before us clearly reflects that 
Peninsula has knowingly operated its translators subsequent to 
receipt of a direct order from us to stop.  It thus appears that 
Peninsula'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. 

     14.  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), 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 a base amount of $10,000 for operation 
without an instrument of authorization for the service.13  It 
appears that Peninsula has willfully and repeatedly operated 
seven stations without authorization, thereby bringing the total 
base amount of the forfeiture to $70,000.  In considering whether 
adjustments are appropriate, it further appears that Peninsula 
has unlawfully operated the translators following receipt of our 
May 2001 MO&O, which unequivocally ordered Peninsula to cease 
operations by midnight May 19, 2001.  It thus appears that 
Peninsula's unauthorized operation has been intentional, which 
warrants an upward adjustment of the forfeiture amount.14  
Moreover, we are not currently aware of any facts that would 
mitigate Peninsula's apparent violations.  Accordingly, we 
believe that a $140,000 forfeiture is appropriate.  

     15.  Finally, in light of Peninsula's apparent defiance of 
our May 2001 MO&O, we hereby notify Peninsula that further 
violation of Section 301 of the Act and our May 2001 MO&O may 
raise serious questions about Peninsula's qualifications to be a 
Commission licensee.  It thus may be necessary to institute 
further proceedings pursuant to Section 312(a) of the Act, 47 
U.S.C.  312(a), with respect to its full service radio station 
licenses and other translator station licenses.  Such proceedings 
could lead to issuance of an order revoking one or more of those 
licenses.  In this regard, we emphasize that the mere pendency of 
an appeal of our May 2001 MO&O will not suffice to avoid further 
enforcement action.15  To assist the Commission in making a 
determination whether such a proceeding should be instituted, 
Peninsula is ordered to file with the Commission's Secretary, 
with a copy to the Chief, Enforcement Bureau, an affidavit by an 
officer or director indicating (1) whether Peninsula has ceased 
operating the relevant translator stations; and (2) whether it 
intends to operate the relevant translator stations at any time 
in the future absent further Commission or court action giving it 
authority to do so.  Such affidavit shall be filed no later than 
10 days from the release of this order. 

                   III.      ORDERING CLAUSES

     16.  Accordingly, IT IS ORDERED THAT, pursuant to Section 
503(b) of the Act, 47 U.S.C.  503(b), and section 1.80 of the 
Commission's rules, 47 C.F.R.  1.80, Peninsula Communications, 
Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR A 
FORFEITURE in the amount of one hundred forty thousand dollars 
($140,000) for violating Section 301 of the Act, 47 U.S.C.  
301, by operating the seven captioned translator stations 
subsequent to midnight May 19, 2001.  

     17.  IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of 
the Commission's rules, 47 C.F.R. 1.80, within thirty days of 
this NOTICE OF APPARENT LIABILITY FOR FORFEITURE, Peninsula 
Communications, Inc. SHALL PAY the full amount of the proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

     18.  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.

     19.  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.  

     20.  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 
submitted.  

     21.  Requests for payment of the full amount of this NOTICE 
OF APPARENT LIABILITY FOR FOFFEITURE under an installment plan 
should be sent to: Chief, Revenue and Receivables Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.16 

     22.  IT IS FURTHER ORDERED THAT, no later than 10 days after 
release of this NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND 
ORDER, Peninsula shall file with the Secretary of the Commission, 
with a copy to the Chief, Enforcement Bureau, an affidavit signed 
by one of its officers or directors indicating (1) whether 
Peninsula has ceased operating each and every one of the above-
captioned translator stations; and (2) whether Peninsula intends 
to operate any or all of the above-captioned translator stations 
at any time in the future absent further Commission or court 
action giving it authority to do so. 
     
     23.  IT IS FURTHER ORDERED THAT a copy of this NOTICE OF 
APPARENT LIABILITY FOR FORFEITURE AND ORDER shall be sent by 
Certified Mail Return Receipt Requested to Peninsula 
Communications, Inc., Post Office Box 109, Homer, Alaska 99603, 
with a copy to Jeffrey D. Southmayd, Esquire, Southmayd & Miller 
1220 19th Street, N.W., Suite 400, Washington, D.C. 20036.


                              FEDERAL COMMUNICATIONS COMMISSION
          



     

                              Magalie Roman Salas
                              Secretary 
_________________________

1  That order also dealt with translators licensed to Peninsula, 
which are in Seward, Alaska.  The operation of those translators 
is not pertinent to this NAL,  and no further reference will  be 
made to them. 

2  An ``other-area'' or ``non-fill-in'' translator is one  whose 
coverage contour extends beyond the protected service contour of 
its primary  station.  See  47 C.F.R.  74.1201(h) and  (i).   A 
``primary'' FM station is the station whose signal a  translator 
retransmits.  47 C.F.R 74.1201(d).  

3  See Amendment of Part 74 of the Commission's Rules Concerning 
FM Translator Stations, 5 FCC  Rcd 7212 (1990), modified, 6  FCC 
Rcd 2334 (1991), recon. denied, 8 FCC Rcd 5093 (1993). 

4  The  Kodiak  translators  ceased  rebroadcasting  Peninsula's 
KPEN-FM, Soldotna, and KWVV-FM,  Homer, Alaska, on November  12, 
1997, and  remained silent  between that  date and  October  29, 
1998.   On  October  29,  1998,  the  Kodiak  translators  began 
rebroadcasting the signal  of a noncommercial  FM translator  in 
Kodiak in accordance with  our translator rules.  See  Peninsula 
Communications, Inc.,  13  FCC Rcd  23992,  23998 n.  13  (1998) 
(``December 1998 MO&O'').  However,  in January 2001,  Peninsula 
recommenced the rebroadcast of  stations KPEN-FM and KWVV-FM  in 
violation of 47 C.F.R.  74.1232(d).  See May 2001 MO&O at p. 2, 
n. 4.  

5  The challenged  translator stations  included K285EF,  Kenai; 
K283AB, Kenai/Soldotna; and K274AB and K285AA, Kodiak.  

6   Peninsula   and  Coastal   Broadcast  Communications,   Inc. 
(``Coastal'')  originally  filed  applications  to  assign   the 
translator stations on  November 14,  1996.  Those  applications 
were  dismissed  as   patently  not  in   accordance  with   the 
Commission's rules.  See Letter  to Jeffrey D. Southmayd,  Esq., 
et. al., Ref.  No. 1800B3-BSH (Chief,  Audio Services  Division, 
Mass  Media   Bureau,  June   17,  1997)   (``June  1997   Staff 
Decision'').  The June  1997 Staff  Decision afforded  Peninsula 
and Coastal ten  business days to  file assignment  applications 
that would fully comply with the Commission's rules.   Peninsula 
and Coastal did so on July 1, 1997. 

7  The brevity of the time period between the filing of the 1995 
and 1997 renewal applications was the result of the Commission's 
decision  to  modify   FM  translator  license   terms  to   run 
concurrently with the terms of FM primary stations.  See In  the 
Matter of Modifying Renewal Dates for Certain Stations  Licensed 
under Part 74 of  the Commission's Rules  and Revising FCC  Form 
303-S, Report and Order, 9 FCC Rcd 6504 (1994).  

8  47 C.F.R.  74.1231(b) provides that other-area or  non-fill-
in translators may  only retransmit primary  FM station  signals 
received by the translator directly over-the-air.

9  See May 2001 MO&O at p. 7,  13. 

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

11  See  Jerry  Szoka, 14  FCC  Rcd 9857,  9865  (1999),  recon. 
denied, 14 FCC Rcd 20147 (1999), petition for review pending sub 
nom. Grid Radio and Jerry Szoka  v. FCC, No. 99-1463 (D.C.  Cir. 
November 17, 1999); Southern California Broadcasting Co., 6  FCC 
Rcd 4387 (1991). 

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

13  See section 1.80 of the Commission's rules, 47 C.F.R.  1.80 
(note  to  paragraph   (b)(4)).   See   also  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). 

14  See M.C. Allen Productions, Notice of Apparent Liability, DA 
01-1166 (Enforcement  Bureau  May 9,  2001);  WRHC  Broadcasting 
Corp.,  Notice   of  Apparent   Liability,  15   FCC  Rcd   5551 
(Enforcement Bureau 2000) (subsequent history omitted). 

15  See, e.g., 47 U.S.C.  416 (``It shall be the duty of  every 
person ... to observe and comply with such orders so long as the 
same shall remain in effect.''). 

16  See 47 C.F.R.  1.1914.