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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,
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.
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
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
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
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,
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.