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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,
Adopted: February 1, 2002 Released: February 6,
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.
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
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.
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
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
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
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
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
15 See WRHC Broadcasting Corp., Notice of Apparent Liability,
15 FCC Rcd 5551 (Enforcement Bureau 2000) (subsequent history