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


In the Matter of                  )
                                 )
Pacifica Broadcasting Company     )
                                 )    EB-03-SE-289
                                 )    NAL/Acct. 
Licensee of Noncommercial         )    200432100005
Educational                       )    Facility # 51241
Television Station KALO (TV),     )    FRN # 0004075040
Honolulu,                         )
Hawaii


         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  October 29, 2003           Released: October 
30, 2003

By the Chief, Enforcement Bureau:

                       I. Introduction

     1.   In this Notice of Apparent Liability for 
Forfeiture (``NAL''), we find that Pacifica Broadcasting 
Company (``Pacifica''), licensee of noncommercial 
educational television Station KALO (TV) (formerly KAIE 
(TV)), Honolulu, Hawaii, apparently violated section 301 of 
the Communications Act of 1934, as amended (the ``Act'')1 
and section 73.1690 of the Commission's rules2 by willfully 
and repeatedly broadcasting from an unauthorized transmitter 
site.  Based upon our review of the facts and circumstances 
of this case, we conclude that Pacifica is apparently liable 
for a monetary forfeiture in the amount of four thousand 
dollars ($4,000.00). 

                                                           
II. Background  

     2.     On March 8, 2001, Pacifica filed an application 
with the Commission for a modified construction permit to 
relocate its station's transmitter from Wiliwilinui Ridge 
(the ``Wiliwilinui Site''), from which it was authorized to 
operate, to Palikea Ridge (the ``Palikea Site'').3  In 
October 2001, the Commission's Mass Media Bureau received an 
anonymous complaint that KALO (TV), Pacifica's station, was 
operating from the Palikea Site proposed in its then-pending 
modification application.  On October 18, 2001, agents from 
the FCC's Honolulu Field Office took signal measurements of 
both sites.  Those measurements confirmed that KALO (TV) was 
no longer operating from the authorized Wiliwilinui Site, 
but instead, was transmitting color bars from the proposed, 
but as yet unauthorized, Palikea Site.  On October 19, 2001, 
one of the agents confirmed that the station's signal was 
originating from the Palikea Site.  He contacted the Palikea 
Site manager by telephone, who confirmed that KALO (TV) was 
operating from a 10 foot container with a panel antenna 
mounted on an existing tower at the site.  Shortly 
thereafter, an officer of Pacifica contacted the Mass Media 
Bureau's Video Services Division staff to report the 
unauthorized construction and to request orally special 
temporary authority (``STA'') to permit the station to 
continue to operate at the Palikea Site.  The FCC staff 
member informed the Pacifica caller that a written request 
for such an STA would be necessary.                                

     3.       A week after the field agent's initial visit 
to the station facilities, by letter to the Commission dated 
October 25, 2001, counsel for Pacifica admitted that 
Pacifica had removed the broadcasting equipment from the 
Wiliwilinui Site and had installed it at the Palikea Site, 
from which it had been testing the equipment and 
broadcasting color bars since the summer of 2001.4  
According to counsel's letter, during the summer of 2001, 
Pacifica's personnel had reviewed the station's outstanding 
authorizations, had found a construction permit specifying a 
transmitter site at the Palikea Site, and had erroneously 
assumed that the permit evidenced the FCC's grant of the 
still-pending modification application.  Pacifica proceeded 
to install equipment at the Palikea Site, with the claimed 
belief that the Commission had authorized the installation.  
The station then initiated equipment tests, broadcasting 
color bars from the site. 

     4.      According to counsel's letter, sometime 
thereafter, another Honolulu broadcaster informed ``Pacifica 
that Pacifica's installation of equipment at Palikea had not 
been authorized'' by the Commission.5  Counsel represents 
that Pacifica then ``doublechecked the station's 
authorization and determined, to its surprise, that the 
authorization which had previously been reviewed was a prior 
permit and that the above-referenced application had not 
theretofore been granted.''6  Counsel further represents 
that, upon learning that the FCC would not grant an STA to 
continue operations at the unauthorized site based upon an 
oral request, Pacifica immediately ceased broadcasting color 
bars and ``began to make arrangements for the relocation of 
the station's equipment back to Wiliwilinui.'' 7  On October 
30, 2001, counsel filed a written request for an STA to 
continue KALO (TV)'s operations at the Palikea Site, pending 
action on the modification application, claiming that 
reinstalling the equipment at the authorized Wiliwilinui 
Site ``would impose a significant expense on Pacifica and 
would entail considerable logistical inconvenience.''8  On 
December 20, 2001, the Chief, Television Branch of the Video 
Services Division granted Pacifica's modification 
application to move the KALO (TV) transmitter to the Palikea 
Site, mooting the need for action on the STA request. 

                     III.     DISCUSSION

     5.   Under section 503(b)(1) of the Act, any person who 
is determined by the Commission to have willfully  or 
repeatedly failed to comply with any provision of the Act or 
any rule, regulation, or order issued by the Commission 
shall be liable to the United States for a forfeiture 
penalty.9  In order to impose such a forfeiture penalty, the 
Commission must issue a notice of apparent liability, the 
notice must be received, and the person against whom the 
notice has been issued must have an opportunity to show, in 
writing, why no such forfeiture penalty should be imposed.  
The Commission will then issue forfeiture if it finds by a 
preponderance of the evidence that the person has violated 
the Act or a Commission rule.10  As we set forth in greater 
detail below, we conclude under this standard that Pacifica 
is apparently liable for a forfeiture for its apparent 
willful and repeated violations of section 301 of the Act 
and section 73.1690(b)(2) of the Commission's rules.  

     6.   Section 301 of the Act prohibits radio operation 
``except under and in accordance with this Act and with a 
license ... granted under the provisions of this Act.''11  
Section 73.1690(b)(2) of the Commission's rules, 12 which 
implements section 301 of the Act, provides that 
noncommercial educational broadcast stations must be 
operated in accordance with a proper authorization granted 
by the Commission and that changes to facilities such as the 
modification of the KALO (TV) site at issue here may only be 
made after the grant of a construction permit application 
submitted on FCC Form 340.  Pacifica's admissions, coupled 
with the uncontroverted evidence that it installed and 
tested over several days KALO (TV)'s equipment at the 
Palikea Site in the absence of Commission authorization, 
lead to the conclusion that Pacifica apparently willfully 
and repeatedly violated section 301 of the Act and section 
73.1690 of the rules.  

     7.   Forfeiture Amount.  The forfeiture guidelines 
establish a base forfeiture amount of four thousand dollars 
($4,000.00) for constructing and operating facilities at an 
unauthorized location.13  In assessing a forfeiture, the 
Commission also takes into account the statutory factors set 
forth in section 503(b)(2)(D) of the Act,14 including 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 requires.  Under the 
circumstances, we believe a forfeiture of four thousand 
dollars ($4,000.00) is apparently warranted.

                    IV. ORDERING CLAUSES

     8.   Accordingly, pursuant to section 503(b) of the 
Communications Act of 1934, as amended, and section 1.80 of 
the Commission's rules, 15  Pacifica Broadcasting Company is 
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in 
the amount of four thousand dollars ($4,000.00) for its 
willful and repeated violation of section 301 of the Act and 
section 73.1690 of the Commission's rules.16

     9.   Therefore, IT IS HEREBY ORDERED, pursuant to 
section 1.80 of the Commission's Rules that within thirty 
(30) days of the release date of this Notice, Pacifica 
Broadcasting Company SHALL PAY the full amount of the 
proposed forfeiture or shall file a written statement 
seeking reduction or cancellation of the proposed 
forfeiture.17

     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 Forfeiture Collection 
Section, Finance Branch, Federal Communications Commission, 
Post Office Box 73482, Chicago, Illinois 60673-7482.  The 
payment must include the FCC Registration Number (FRN) 
referenced above and must also note the NAL/Acct Number 
referenced above.

     11.  The response, if any, MUST BE MAILED to Joseph P. 
Casey, Chief, Spectrum Enforcement Division, Enforcement 
Bureau, Federal Communications Commission, 445 12th Street, 
SW, Room 7-A843, Washington, D.C. 20554 and MUST INCLUDE the 
NAL/Acct. Number referenced above.

     12.  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.

     13.  Requests for payment of the full amount of the 
forfeiture proposed in this NAL under an installment plan 
should be sent to: Chief, Revenue and Receivables Operations 
Group, 445 12th Street, SW, Washington, DC 20554.18

     14.  Under the Small Business Paperwork Relief Act of 
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the 
FCC is engaged in a two-year tracking process regarding the 
size of entities involved in forfeitures.  If Pacifica 
qualifies as a small entity and if it wishes to be treated 
as a small entity for tracking purposes, please so certify 
to us within thirty (30) days of this NAL, either in its 
response to the NAL or in a separate filing to be sent to 
the Investigations and Hearings Division.  Its certification 
should indicate whether Pacifica, including its parent 
entity and its subsidiaries, meets one of the definitions 
set forth in the list provided by the FCC's Office of 
Communications Business Opportunities (``OCBO'') set forth 
in the Attachment to this NAL.  This information will be 
used for tracking purposes only.  Pacifica's response or 
failure to respond to this question will have no effect on 
its rights and responsibilities pursuant to section 503(b) 
of the Communications Act.  If Pacifica has questions 
regarding any of the information contained in the 
Attachment, it should contact OCBO at (202) 418-0990. 

     15.  IT IS FURTHER ORDERED that a copy of this Notice 
of Apparent Liability For Forfeiture shall be sent, by 
Certified Mail Return Receipt Requested, to Pacifica 
Broadcasting Company 875 Waimanu Street, Suite 110, 
Honolulu, HI. 96813, and a copy to its counsel, Harry F. 
Cole, Esq., Fletcher, Heald & Hildreth, 11th Floor, 1300 
North 17th Street, Arlington, Virginia  22209-3801.


                         FEDERAL COMMUNICATIONS COMMISSION




                         David H. Solomon
                         Chief, Enforcement Bureau                                                                                                                          
October 2002
                         ATTACHMENT 


                 FCC List of Small Entities

   As described below, a ``small entity'' may be a small 
                       organization,
  a small governmental jurisdiction, or a small business.

(1)  Small Organization 
Any not-for-profit enterprise that is independently owned 
and operated and 
is not dominant in its field.

  
(2)  Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages, 
school districts, or 
special districts, with a population of less than fifty 
thousand.


(3)  Small Business
Any business concern that is independently owned and 
operated and 
is not dominant in its field, and meets the pertinent size 
criterion described below.
  

       Industry Type          Description of Small Business 
                                     Size Standards
                 Cable Services or Systems
                             Special Size Standard - 
Cable Systems                 Small Cable Company has 400,000 
                             Subscribers Nationwide or Fewer
Cable and Other Program 
Distribution                      $12.5 Million in Annual 
                                    Receipts or Less

Open Video Systems 
        Common Carrier Services and Related Entities
Wireline Carriers and 
Service providers 
                                1,500 Employees or Fewer
Local Exchange Carriers, 
Competitive Access 
Providers, Interexchange 
Carriers, Operator Service 
Providers, Payphone 
Providers, and Resellers

Note:  With the exception of Cable Systems, all size 
standards are expressed in either millions of dollars or 
number of employees and are generally the average annual 
receipts or the average employment of a firm.  Directions 
for calculating average annual receipts and average 
employment of a firm can be found in 
13 CFR 121.104 and 13 CFR 121.106, respectively.




                   International Services
International Broadcast 
Stations






                                 $12.5 Million in Annual 
                                    Receipts or Less
International Public Fixed 
Radio (Public and Control 
Stations)
Fixed Satellite 
Transmit/Receive Earth 
Stations
Fixed Satellite Very Small 
Aperture Terminal Systems
Mobile Satellite Earth 
Stations
Radio Determination 
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space 
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
                    Mass Media Services
Television Services

                             $12 Million in Annual Receipts 
                                         or Less
Low Power Television 
Services and Television 
Translator Stations
TV Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Radio Services
                              $6 Million in Annual Receipts 
                                         or Less
Radio Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Multipoint Distribution       Auction Special Size Standard -
Service                       Small Business is less than 
                             $40M in annual gross revenues 
                             for three preceding years
          Wireless and Commercial Mobile Services
Cellular Licensees
                                1,500 Employees or Fewer
220 MHz Radio Service - 
Phase I Licensees
220 MHz Radio Service -       Auction special size standard -
Phase II Licensees            Small Business is average gross 
                             revenues of $15M or less for 
                             the preceding three years 
                             (includes affiliates and 
                             controlling principals)
                             Very Small Business is average 
                             gross revenues of $3M or less 
                             for the preceding three years 
                             (includes affiliates and 
                             controlling principals)
700 MHZ Guard Band Licensees


Private and Common Carrier 
Paging
Broadband Personal 
Communications Services          1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal            Auction special size standard -
Communications Services       Small Business is $40M or less 
(Block C)                     in annual gross revenues for 
                             three previous calendar years
                             Very Small Business is average 
                             gross revenues of $15M or less 
                             for the preceding three 
                             calendar years (includes 
                             affiliates and persons or 
                             entities that hold interest in 
                             such entity and their 
                             affiliates)
Broadband Personal 
Communications Services 
(Block F)
Narrowband Personal 
Communications Services


Rural Radiotelephone Service     1,500 Employees or Fewer
Air-Ground Radiotelephone 
Service
800 MHz Specialized Mobile    Auction special size standard -
Radio                         Small Business is $15M or less 
                             average annual gross revenues 
                             for three preceding calendar 
                             years
900 MHz Specialized Mobile 
Radio
Private Land Mobile Radio        1,500 Employees or Fewer
Amateur Radio Service                       N/A
Aviation and Marine Radio 
Service                          1,500 Employees or Fewer
Fixed Microwave Services
                             Small Business is 1,500 
Public Safety Radio Services  employees or less
                             Small Government Entities has 
                             population of less than 50,000 
                             persons
Wireless Telephony and 
Paging and Messaging             1,500 Employees or Fewer
Personal Radio Services                     N/A
Offshore Radiotelephone          1,500 Employees or Fewer
Service
Wireless Communications       Small Business is $40M or less 
Services                      average annual gross revenues 
                             for three preceding years
                             Very Small Business is average 
                             gross revenues of $15M or less 
                             for the preceding three years 

39 GHz Service
                             Auction special size standard 
                             (1996) -
Multipoint Distribution       Small Business is $40M or less 
Service                       average annual gross revenues 
                             for three preceding calendar 
                             years
                             Prior to Auction -
                             Small Business has annual 
                             revenue of $12.5M or less
Multichannel Multipoint 
Distribution Service              $12.5 Million in Annual 
                                    Receipts or Less
Instructional Television 
Fixed Service
                             Auction special size standard 
                             (1998) -
Local Multipoint              Small Business is $40M or less 
Distribution Service          average annual gross revenues 
                             for three preceding years
                             Very Small Business is average 
                             gross revenues of $15M or less 
                             for the preceding three years 
                             First Auction special size 
                             standard (1994) -
                             Small Business is an entity 
                             that, together with its 
                             affiliates, has no more than a 
218-219 MHZ Service           $6M net worth and, after 
                             federal income taxes (excluding 
                             carryover losses) has no more 
                             than $2M in annual profits each 
                             year for the previous two years
                             New Standard - 
                             Small Business is average gross 
                             revenues of $15M or less for 
                             the preceding three years 
                             (includes affiliates and 
                             persons or entities that hold 
                             interest in such entity and 
                             their affiliates)
                             Very Small Business is average 
                             gross revenues of $3M or less 
                             for the preceding three years 
                             (includes affiliates and 
                             persons or entities that hold 
                             interest in such entity and 
                             their affiliates)
Satellite Master Antenna 
Television Systems                $12.5 Million in Annual 
                                    Receipts or Less
24 GHz - Incumbent Licensees     1,500 Employees or Fewer
24 GHz - Future Licensees     Small Business is average gross 
                             revenues of $15M or less for 
                             the preceding three years 
                             (includes affiliates and 
                             persons or entities that hold 
                             interest in such entity and 
                             their affiliates)
                             Very Small Business is average 
                             gross revenues of $3M or less 
                             for the preceding three years 
                             (includes affiliates and 
                             persons or entities that hold 
                             interest in such entity and 
                             their affiliates)
                       Miscellaneous
On-Line Information Services  $18 Million in Annual Receipts 
                                         or Less
Radio and Television 
Broadcasting and Wireless 
Communications Equipment          750 Employees or Fewer
Manufacturers
Audio and Video Equipment 
Manufacturers
Telephone Apparatus 
Manufacturers (Except            1,000 Employees or Fewer
Cellular)
Medical Implant Device            500 Employees or Fewer
Manufacturers
Hospitals                     $29 Million in Annual Receipts 
                                         or Less
Nursing Homes                     $11.5 Million in Annual 
                                    Receipts or Less
Hotels and Motels              $6 Million in Annual Receipts 
                                         or Less
Tower Owners                  (See Lessee's Type of Business)

_________________________

1   47 U.S.C.  301.

2   47 C.F.R.  73.1690.

3  File No. BPET-20010308AAU. 

4  See Letter for request for expedited action on 
application, dated October 25, 2001, from Harry F. Cole, 
counsel for Pacifica Broadcasting Company (``Cole Letter''). 

5   Id at 2. 

6   Id.
7  Id.

8  Id. at 1. 

9  47 U.S.C.  503(b)(1)(B); 47 C.F.R.  1.80(a)(1); see 
also 47 U.S.C.  503(b)(1)(D) (forfeitures for violation of 
14 U.S.C.  1464).  Section 312(f)(1) of the Act defines 
willful as ``the conscious and deliberate commission or 
omission of [any] act, irrespective of any intent to 
violate'' the law.  47 U.S.C.  312(f)(1). The legislative 
history to section 312(f)(1) of the Act clarifies that this 
definition of willful applies to both sections 312 and 
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 
51 (1982), and the Commission has so interpreted the term in 
the section 503(b) context.  See, e.g., Application for 
Review of Southern California Broadcasting Co., Memorandum 
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern 
California Broadcasting Co.'').  The Commission may also 
assess a forfeiture for violations that are merely repeated, 
and not willful.  See, e.g., Callais Cablevision, Inc., 
Grand Isle, Louisiana, Notice of Apparent Liability for 
Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a 
Notice of Apparent Liability for, inter alia, a cable 
television operator's repeated signal leakage).  
``Repeated'' merely means that the act was committed or 
omitted more than once, or lasts more than one day.  
Southern California Broadcasting Co., 6 FCC Rcd at 4388,  
5; Callais Cablevision, Inc., 16 FCC Rcd at 1362,  9.

10  See, e.g., SBC Communications, Inc., Apparent Liability 
for Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591,  4 
(2002) (forfeiture paid).

11  47 U.S.C.  301.
  
12  47 C.F.R.  73.1690(b)(2).  This rule requires prior 
approval of any change in station geographic coordinates of 
more than 3 seconds latitude and/or 3 seconds longitude.  
The move of the KALO (TV) transmitter site at issue here 
substantially exceeded those parameters.

13  In  the Matter  of  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  47 U.S.C.  503(b)(2)(D).

15 47 U.S.C. 503(b), 47 C.F.R. 1.80.

16 47 U.S.C.  301, 47 C.F.R. 73.1740.

17  47 C.F.R. 1.80.

18  47 C.F.R.  1.1914.