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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 )    FRN: 0001-5712-15
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


                        FORFEITURE ORDER

   Adopted: February 1, 2002            Released:   February   6, 

2002

By the Commission:  

     1.  In this Forfeiture Order, we find that Peninsula 
Communications, Inc. (``Peninsula'') has willfully and repeatedly 
failed to comply with Section 301 of the Communications Act of 
1934, as amended (the ``Act''), 47 U.S.C.  301.1  The violations 
arise from continued operation of FM translator stations K285EF, 
Kenai; K283AB, Kenai/Soldotna; K257DB, Anchor Point; K265CK, 
Kachemak City; K272CN, Homer; and K274AB and K285AA, Kodiak, all 
in Alaska, subsequent to our order to terminate such operations.  
See Peninsula Communications, Inc., 16 FCC Rcd 11364 (2001) 
(``May 2001 MO&O'').2  Based on our review of the facts and 
circumstances of this case and after considering Peninsula's 
response3 to our Notice of Apparent Liability and Order, 16 FCC 
Rcd 16124 (2001), released August 29, 2001 (``NAL''), we conclude 
that Peninsula is liable for a forfeiture in the amount of one 
hundred forty thousand dollars ($140,000), the amount proposed in 
the NAL.  Moreover, as explained herein, our order to terminate 
operations on the seven translators continues to be valid, and 
Peninsula is obligated to comply with it.   
                         I.  BACKGROUND

     2.  The background pertinent to this forfeiture is discussed 
at length in the NAL and will be referenced only briefly here.  
Our FM translator rules provide that an 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'' that the translator will rebroadcast.4  
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.

     3.  In addressing petitions to deny filed against 
Peninsula's 1995 renewal applications, the staff determined that 
Peninsula was operating the translator stations in violation of 
our translator rules' ownership restrictions.  Nevertheless, the 
staff deferred action on the 1995 renewal applications to allow 
Peninsula to file assignment applications in order to come into 
compliance.  See Letter to Jeffrey D. Southmayd, Esq., Ref. No. 
1800B4-AJS (Chief, Audio Services Division, Mass Media Bureau, 
September 11, 1996) (``September 1996 letter'').  After 
acceptable assignment applications were filed, the staff granted 
the assignment applications, as well as Peninsula's 1995 renewal 
applications, conditioned upon consummation of the authorized 
assignments.  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'').  However, 
Peninsula and the proposed assignee never consummated the 
assignments.  Moreover, at that time, Peninsula did not reject 
any of the conditional grants.  

     4.  Subsequently, the Commission issued two related 
decisions,5 and the Court of Appeals for the District of Columbia 
Circuit dismissed an appeal filed by Peninsula.6  While its 
appeal was pending, Peninsula filed a pleading styled ``Rejection 
of Conditional License Renewal and Assignment of License Grants'' 
(``Rejection of Conditional Grants''), which we dismissed as 
untimely.  See May 2001 MO&O.  In addition, because Peninsula 
never fulfilled the condition imposed, we rescinded the grants of 
the 1995 renewal applications, dismissed those applications as 
well as subsequent related applications, cancelled the stations' 
call signs, and ordered Peninsula to cease broadcast operations 
on the FM translators by midnight of the day following the 
release of the May 2001 MO&O, that is, by midnight May 19, 2001.  
Although Peninsula received the May 2001 MO&O no later than May 
30, 2001 (and its counsel was notified of the order to cease 
operations on May 21, 2001), it did not shut down any of the 
seven captioned FM translators.  Indeed, by its counsel, 
Peninsula related that it had no intention of terminating its 
operations on the translators.  Consequently, we issued the NAL.   
                         II.  DISCUSSION
 
     5.  In responding to the NAL, Peninsula acknowledges that it 
continued to operate the FM translators following its receipt of 
the May 2001 MO&O.  Peninsula seeks to justify its continued 
operation by claiming that its renewal applications are still 
``pending'' pursuant to sections 1.62 and 73.3523 of the 
Commission rules, 47 C.F.R.  1.62 and 73.3523, and that those 
rules therefore permit Peninsula to continue operation.  We 
disagree.  As a preliminary matter, we note that even if the 
rules did permit Peninsula to continue operation, a licensee 
cannot ignore a Commission order simply because it believes such 
order to be unlawful.  As the Act specifically provides:

          All such orders shall continue in force for the 
          period of time specified in the order or until the 
          Commission or a court of competent jurisdiction 
          issues a superseding order.7

          It shall be the duty of every person, its agents 
          and employees, and any receiver or trustee 
          thereof, to observe and comply with such orders so 
          long as the same shall remain in effect.8
 
 In any event, neither rule cited by Peninsula authorized it to 
  continue broadcasting after the date specified in the May 2001 
  MO&O.  Section 1.62 of our rules provides that a renewal 
  applicant's license ``shall continue in effect ... until such 
  time as the Commission shall make a final determination with 
  respect to the renewal application.''9  Here, the Commission 
  made such a final determination.  The fact that an appeal is 
  pending is irrelevant for purposes of section 1.62, as the 
  Commission held in Mobilcom Pittsburg, Inc., 9 FCC Rcd 509 
  (1994).  As for 47 C.F.R.  73.3523, the definition of a 
  pending application on which Peninsula relies is expressly 
  restricted by subsection (d) of that rule to the operation of 
  that rule alone.  Section 73.3523 seeks to prevent a competing 
  applicant who filed against a renewal application from 
  receiving ``greenmail'' from the renewal applicant.  That rule 
  has absolutely nothing to do with this case.  Hence, neither 
  rule provides any justification whatsoever for Peninsula's 
  continued  operation of the captioned translators after the date 
  specified in the May 2001 MO&O (that is, after midnight May 
  19, 2001).10    
 
     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.''  As explained above, Peninsula's licenses for the seven 
captioned translators were canceled as of midnight May 19, 2001.  
Nevertheless, Peninsula continued to operate those stations in 
defiance of our order to terminate such operations.      

     7.  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.11  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,12 while ``repeatedly'' means 
more than once.13  The information before us clearly reflects 
that Peninsula has knowingly operated its translators subsequent 
to receipt of a direct order from us to cease.  The only 
reasonable inference to draw is that Peninsula's violations with 
respect to unauthorized operations were not only willful but also 
were intentional.  We also conclude that each of the violations 
described occurred on more than one day; thus, they were 
repeated. 

     8.  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.14  We 
find 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, we also find that Peninsula has 
unlawfully operated the translators following receipt of our May 
2001 MO&O, which unequivocally cancelled the licenses and ordered 
Peninsula to cease operations.  We therefore conclude that 
Peninsula's unauthorized operation has been intentional in that 
it continued operation of the FM translators even though it knew 
it no longer held licenses for them, which warrants an upward 
adjustment of the forfeiture amount.15  Moreover, in view of the 
intentional nature of Peninsula's current violations, we do not 
find that Peninsula's past broadcast record warrants a downward 
adjustment.  Accordingly, we find that the proposed $140,000 
forfeiture is appropriate and should be imposed.  

                   III.      ORDERING CLAUSES

     9.  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. FORFEIT to the United States the sum 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.  

     10.  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, within thirty (30) days of 
the release of this Forfeiture Order.  See 47 C.F.R.  1.80(h).  
The payment MUST INCLUDE the FCC Registration Number (FRN) 
referenced above, and should also note the NAL/Acct. No. 
referenced above.  If the forfeiture is not paid within the 
period specified, the case may be referred to the Department of 
Justice for collection pursuant to 47 U.S.C.  504.  A request 
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.  See 47 C.F.R.  1.1914.
     11.  IT IS FURTHER ORDERED THAT a copy of this FORFEITURE 
ORDER shall be sent by Certified Mail Return Receipt Requested to 
David F. Becker, President, 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
          




                              William F. Caton
                              Acting Secretary 
_________________________

1  This day we also release an Order to Show Cause (FCC  02-32), 
which  commences  a  hearing  proceeding  to  determine  whether 
Peninsula's full  service broadcast  and FM  translator  station 
licenses should be revoked. 

2  That order  also dealt with  Peninsula's FM translators  that 
are  licensed  in  Seward,  Alaska.   The  operation  of   those 
translators is not  pertinent to this  Forfeiture Order, and  no 
further reference will be made to them. 

3  Peninsula  styled  its  September 28,  2001,  response  as  a 
``Petition  for  Reconsideration.''   No  such  pleading   lies, 
inasmuch as  a notice  of apparent  liability is  not a  ``final 
Commission action,'' which is the  predicate for a petition  for 
reconsideration pursuant  to  47  C.F.R.    1.106.   See  Excel 
Communications, Inc., 11  FCC Rcd  19765, n.  3 (Common  Carrier 
Bureau 1995).  We will therefore treat Peninsula's pleading as a 
``response'' pursuant to 47 C.F.R.  1.80(f)(3). 

4  See 47 C.F.R.  74.1232(d).  An ``other-area'' or ``non-fill-
in'' translator is one whose coverage contour extends beyond the 
protected 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).  

5  See Peninsula Communications, Inc., 13 FCC Rcd 23992  (1998); 
Peninsula  Communications,  Inc.,   15  FCC   Rcd  3293   (2000) 
(``February 2000 MO&O'').   For a summary  of these orders,  see 
either NAL, 16 FCC Rcd at 16126 (paras. 6-8), or May 2001  MO&O, 
16 FCC Rcd 11366-67 (paras 6-8).  

6  Peninsula Communications, Inc. v. FCC, Case No. 00-1079 (D.C. 
Circuit March  8, 2000)  (dismissed without  prejudice, 2000  WL 
1225776, July 11, 2000).  For a summary of the Court of Appeals' 
actions, see either NAL, 16 FCC Rcd at 16126-27 (para. 9) or May 
2001 MO&O, 16 FCC Fcd at 11367-68 (para. 9).  

7  47 U.S.C.  408. 

8  47 U.S.C.  416(c). 

9  See also 5  U.S.C.  558(c)  (corresponding provision of  the 
Administrative Procedure Act states  that the license  continues 
until the renewal  application "has been  finally determined  by 
the agency''). 

10  Generally, we  permit a disqualified  broadcast licensee  to 
continue operations during judicial appeals to ensure service to 
the   public   until   the   court   resolves   the   licensee's 
qualifications.  See Pinelands, Inc., 7 FCC Rcd 6058, 6061 n. 12 
(1992).  In those situations, when we choose to allow  licensees 
to  continue  operations,  we  do  so  explicitly.   See,  e,g., 
Contemporary Media, Inc.,  13 FCC Rcd  14437, 14461 (1998).   In 
our May 2001 MO&O, we did not give Peninsula continued authority 
to operate.  We also note that, in light of the record, it would 
have been inappropriate for  us to do so.   As discussed in  the 
May 2001  MO&O  and NAL,  Peninsula  received in  November  1997 
conditional grants  of renewal  and assignment  applications  to 
remedy rule violations that had been ongoing since June 1, 1994.  
At the outset, Peninsula  accepted and endorsed the  conditional 
grants as fair and consistent with  the facts and the law.   See 
May 2001 MO&O, 16 FCC Rcd at 11368.  However, by the time of the 
May 2001 MO&O,  Peninsula had failed  to fulfill the  condition, 
namely,  consummating  the  assignment  of  its  FM   translator 
licenses, despite having years to do so and despite our explicit 
warning that not doing so would result in cancellation of  those 
licenses.  See February 2000 MO&O, supra note 5; May 2001  MO&O.  
Moreover, the  record  further demonstrated  beyond  doubt  that 
Peninsula would never fulfill the condition.  In light of  these 
circumstances,  granting  Peninsula  authority  to  continue  to 
operate its FM translators during  the pendency of any  judicial 
appeals of  the  May  2001 MO&O  would  have  perpetuated  long-
standing rule violations and been inconsistent with the  warning 
in our February 2000 MO&O.  We  saw no reason to do either.   We 
had given Peninsula ample time to meet the condition imposed  in 
1997 and come into compliance with 47 C.F.R.  74.1232(d).   

11  See also 47 C.F.R.  1.80(a)(1) and (2). 

12  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). 

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

14  See 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). 

15  See WRHC Broadcasting  Corp., Notice of Apparent  Liability, 
15 FCC Rcd  5551 (Enforcement Bureau  2000) (subsequent  history 
omitted).