Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


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

In the Matter of                  )
DONALD W.  KAMINSKI, JR.          )    File No. EB-00-IH-0348
                                 )    NAL/ Acct. No. 200132080012
Licensee  of  Station  KHWK(FM),  )    FRN 0010014504
Tonopah, NV                       )    Facility ID No. 17239

                      FORFEITURE ORDER

   Adopted:  December 15, 2003          Released:   December 
17, 2003

By the Chief, Enforcement Bureau:

                      I.   INTRODUCTION

In this Forfeiture Order,  issued pursuant to section 503(b) 
of the Communications Act of 1934, as amended (the ``Act''), 
and section  1.80 of  the Commission's  rules,1 we  impose a 
monetary forfeiture of Four  Thousand Dollars ($4,000.00) on 
Donald  W.  Kaminski,  Jr., licensee  of  Station  KHWK(FM), 
Tonopah, Nevada,  for his  willful failure  to respond  to a 
written Commission  inquiry in violation of  section 73.1015 
of the Commission's rules.2 

                    II.       BACKGROUND

The  Commission, by  the Chief,  Enforcement Bureau,  acting 
pursuant to delegated authority, issued a Notice of Apparent 
Liability  for  Forfeiture  (``NAL'') proposing  a  monetary 
forfeiture based  upon Mr. Kaminski's failure  to respond to 
our  inquiry  concerning  the  ownership  and  operation  of 
Station  KHWK(FM),   Tonopah,  Nevada   and  a   related  FM 
translator, K240BS.3  The NAL was  sent by certified mail to 
Mr.  Kaminski,  and  the  return receipt  reflects  that  he 
received it.4  However, Mr. Kaminski  did not file a written 
statement in response to the NAL.5 

                     III.    DISCUSSION

Section 73.1015 of the Commission's rules provides:

          The Commission  or its  representatives may, 
          in  writing,  require  from  any  applicant, 
          permittee, or licensee written statements of 
          fact relevant to  a determination whether an 
          application should be  granted or denied, or 
          to a determination  whether a license should 
          be revoked,  or to  any other  matter within 
          the jurisdiction  of the  Commission, or, in 
          the case of a  proceeding to amend the FM or 
          Television Table of Allotments, require from 
          any person filing an expression of interest, 
          written statements of  fact relevant to that 
          allotment    proceeding.    No    applicant, 
          permittee, licensee, or  person who files an 
          expression of interest shall in any response 
          to Commission  correspondence or  inquiry or 
          in any application,  pleading, report or any 
          other  written  statement  submitted  to the 
          Commission,  make  any  misrepresentation or 
          willful  material  omission  bearing  on any 
          matter  within   the  jurisdiction   of  the 
          Commission.  (note omitted).

As detailed  in the NAL,  Mr. Kaminski failed to  respond in 
writing to our  inquiry.  In addition, Mr.  Kaminski did not 
file a  written response  to the  NAL to  suggest otherwise.  
Therefore, we  conclude that  imposition of a  forfeiture is 

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  monetary  forfeiture 
penalty.6  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.7  
The Commission will then issue a forfeiture if it finds by a 
preponderance of  the evidence that the  person has violated 
the  Act or  a Commission  rule.8   As set  forth above,  we 
conclude under this standard that Mr. Kaminski is liable for 
a  forfeiture  for the willful violation  of section 73.1015 
of the Commission's rules.

The  Commission's Forfeiture  Policy Statement  sets a  base 
forfeiture  amount of  $4,000.00 for  failure to  respond to 
Commission communications.9  The Forfeiture Policy Statement 
also specifies that the Commission shall adjust a forfeiture 
based  upon  consideration  of  the  factors  enumerated  in 
section 503(b)(2)(D)  of the Act, 47  U.S.C.  503(b)(2)(D), 
such as  ``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.''10  In 
this case,  taking all of these  factors into consideration, 
we  find  that  the  NAL properly  proposed  that  the  base 
forfeiture  amount  is  the  appropriate  sanction  for  the 
violation  described above.   Consequently, Mr.  Kaminski is 
liable   for  a   forfeiture   of   Four  Thousand   Dollars 

                  IV.     ORDERING CLAUSES

Accordingly, IT  IS ORDERED  THAT, pursuant  to 47  U.S.C.  
503(b), and  47 C.F.R.   0.111, 0.311 and 1.80,  Donald W. 
Kaminski, Jr. FORFEIT  to the United States the  sum of Four 
Thousand  Dollars  ($4,000.00)  for willfully  violating  47 
C.F.R.  73.1015.

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) (0010014504), and also should note 
the NAL/Acct.  No. (200132080012). If the  forfeiture is not 
paid  within that  time, the  case  may be  referred to  the 
Department of Justice for collection pursuant to 47 U.S.C.  

IT IS FURTHER  ORDERED that a copy of  this Forfeiture Order 
SHALL BE  SENT, by Certified Mail  Return Receipt Requested, 
to Mr.  Donald W.  Kaminski, Jr. at  his address  of record, 
P.O. Box 1669, Tonopah, Nevada  89049.  



                         David H. Solomon
                         Chief, Enforcement Bureau


1 47 U.S.C.  503(b) (2002);  47 C.F.R.  1.80 (2002).

2  47 C.F.R.  73.1015 (2002).

3  Donald  W. Kaminski,  Jr., Notice of  Apparent Liability 
for Monetary Forfeiture, 16 FCC Rcd 10707 (EB 2001). 

4   The NAL  was sent  to  Mr. Kaminski  by Certified  Mail 
Return  Receipt  Requested to  the  address  of record  for 
Station  KHWK(FM).    The  United  States   Postal  Service 
certified mail return receipt does not indicate the date of 
delivery but bears his signature.  

5 See Donald W. Kaminski, Jr., 16 FCC Rcd at 10709,  8.  

6 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.    

7 47 U.S.C.  503(b); 47 C.F.R.  1.80(f).

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

9   The  Commission's   Forfeiture  Policy   Statement  and 
Amendment of Section  1.80 of the Rules  to Incorporate the 
Forfeiture  Guidelines, 12  FCC  Rcd  17087, 17113  (1997), 
recon. denied  15 FCC  Rcd 303 (1999)  (``Forfeiture Policy 
Statement''); 47 C.F.R.  1.80(b).

10 Forfeiture Policy  Statement, 12 FCC Rcd  at 17100-01,