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


In the Matter of                )       
                                )       
A-O Broadcasting Corporation    )       File No. EB-01-DV-334
                                )
Former Licensee of Station KTMN(FM)1    )    NAL/Acct.        No. 
200332800001
Cloudcroft, New Mexico          )       FRN # 0005-0204-74
Facility ID #89049              )       
                                
                  MEMORANDUM OPINION AND ORDER

Adopted:  December 28, 2004        Released:  January 3, 2005
                                             
By the Commission:

I.   Introduction

     1.   In this Memorandum Opinion and Order (``Order''), we 
        deny a petition for reconsideration filed by A-O 
        Broadcasting Corporation (``A-O''), former licensee2 of 
        FM radio station KTMN, Cloudcroft, New Mexico, of our 
        Forfeiture Order issued December 29, 2003,3 in the 
        amount of twenty-five thousand dollars ($25,000) for 
        willful and repeated violation of Sections 1.1310, 
        11.35, 73.1125, and 73.1400 of the Commission's Rules 
        (``Rules'').4  The noted violations involve A-O's 
        failing to comply with radio frequency radiation 
        (``RFR'') maximum permissible exposure (``MPE'') limits 
        applicable to transmitters on towers, failing to have 
        Emergency Alert System (``EAS'') equipment installed and 
        operating, failing to maintain a main studio, and 
        failing to have adequate transmission system control.
II.  Background

     2.   On November 14, 2001, agents from the FCC's Denver, 
        Colorado Field Office (``Denver Office'') investigated a 
        complaint against KTMN alleging that the station was not 
        operating at its authorized power and was not in 
        compliance with the FCC's RFR tower guidelines.  As part 
        of the investigation, the agents conducted an inspection 
        of KTMN's transmitting facility in Cloudcroft, New 
        Mexico.5  The agents, relying on a laser range finder, 
        found that the KTMN transmitting antenna was 
        approximately five meters below the authorized level on 
        a United States Forest Service (``USFS'') fire lookout 
        tower.  The top bay of the antenna was level with the 
        lookout platform.  The lookout tower was in a gated and 
        locked area approximately 30 meters from Forest Service 
        Road 175.   USFS personnel had unrestricted access to 
        the lookout tower.
     3.   When the agents arrived at the transmitter site, the 
        station was not operating.  KTMN's owner told the agents 
        that the station had been off the air for one week, 
        following a November 7, 2001, electrical surge which 
        affected the programming capabilities of KTMN.  Upon the 
        agents' request, the owner turned the transmitter on to 
        40% of the authorized power and transmitted an 
        unmodulated carrier.  The owner was not able to achieve 
        100% authorized power and admitted the most the station 
        ever achieved was about 60% of its authorized power.  At 
        40% of the authorized power, the agents found publicly 
        accessible areas outside the fence surrounding the 
        lookout tower that significantly exceeded the FCC's RFR 
        MPE limits for the general population by over 200%.  The 
        agents also found numerous areas on the stairway of the 
        lookout tower in excess of the public MPE limits by over 
        1400%.  Inside the lookout platform, RFR fields exceeded 
        the public MPE limits by over 200%.
     4.   On November 18, 2002, the Commission issued a Notice of 
        Apparent Liability (``NAL'') to A-O for a forfeiture in 
        the amount of twenty-eight thousand dollars ($28,000) 
        for willful and repeated violation of Sections 1.1310, 
        11.35, 73.1125 and 73.1400 of the Rules.6  In its 
        response, filed on December 18, 2002, A-O sought 
        reduction or cancellation of the proposed monetary 
        forfeiture.  A-O argued that it did not willfully 
        violate any FCC rule; that the violations alleged in the 
        NAL ``do not relate to silent stations''; that A-O's 
        actions ``complied substantially'' with Sections 1.1310, 
        11.35, 73.1125 and 73.1400 of the Rules; that ``the 
        inspection was not conducted in accordance with the 
        Rules''; that A-O is unable to pay any forfeiture amount 
        whatsoever; that A-O has a record of overall compliance; 
        that A-O acted in good faith; that A-O was not required 
        to have EAS equipment installed because it was within a 
        60 day grace period; that KTMN's transmitter site is 
        ``not readily accessible to the public''; that the 
        Commission cannot now penalize A-O for violation of the 
        RFR rules after having reviewed A-O's RFR analysis; and 
        that the Commission ``articulated no rational basis'' 
        for specifying a $10,000 base forfeiture amount for 
        violation of Section 73.1310 of the Rules.  On December 
        29, 2003, we issued a Forfeiture Order to A-O imposing a 
        forfeiture of $25,000 for the violations alleged in the 
        NAL.  In the Forfeiture Order, we rejected all of A-O's 
        arguments except the ``good faith'' argument and, 
        because A-O demonstrated good faith by obtaining EAS 
        equipment before the inspection of KTMN and by starting 
        construction of a main studio before the inspection, we 
        reduced the portion of the forfeiture proposed for the 
        EAS and main studio violations from $15,000 to $12,000.  
     5.   In its petition for reconsideration of the Forfeiture 
        Order, filed January 28, 2004, A-O argues that the 
        violations noted in the Forfeiture Order ``were the 
        direct result of FCC actions''; that the Commission 
        granted KTMN's construction permit (for its original 
        site) after A-O's ``detailed disclosure of the nature of 
        the proposed facility''; that the ``alleged five meter 
        difference [between the authorized level of A-O's  
        antenna and the lower level observed by FCC agents] is 
        not material to the existence of excessive RF levels''; 
        that the Commission has never demonstrated ``by anything 
        other than the say-so of FCC agents'' that A-O's antenna 
        was not mounted at its authorized level; that A-O's 
        owner ``had no reason to suppose'' that A-O's antenna 
        was mounted lower than authorized; that, by suspending 
        the operation of KTMN, A-O ``was doing what it could to 
        avoid any prohibitive RF exposure''; that KTMN did not 
        broadcast continuously between October 5 and November 7, 
        2001, but operated for ``less  than 40 hours total''; 
        that it was not required to have a main studio or 
        functional EAS equipment because it was silent; that it 
        is a victim of entrapment; and that it is unable to pay 
        the assessed forfeiture.
     6.   In addition to the instant proceeding, we note that A-O 
        has a relevant parallel proceeding regarding its 
        operation of station KTMN currently before the Media 
        Bureau.  Specifically, by letter filed with the 
        Commission on January 9, 2002, A-O notified the 
        Commission that KTMN ceased transmitting on November 7, 
        2001, as a result of a transient failure of the 
        station's computer and would remain silent in order to 
        complete new studio facilities and to make some 
        adjustments to its transmitting facilities.  On March 
        14, 2002, approximately four months after KTMN suspended 
        operations, A-O filed a request (amended on June 10 and 
        21, 2002) with the Media Bureau for special temporary 
        authority (``STA'') for KTMN to remain silent.  In its 
        STA request, A-O stated that, in November 2001, the 
        Denver Office determined that KTMN's transmitting 
        antenna on the USFS lookout tower created a risk of 
        excessive RFR exposure to nearby persons; that on March 
        4, 2002, the USFS requested that the transmitter and 
        antenna bays be removed from the authorized site; and 
        that it was negotiating with the USFS to relocate the 
        transmitter to a new site.  On June 25, 2002, the Media 
        Bureau granted A-O an STA for KTMN to remain silent 
        through November 7, 2002.  On August 22, 2002, A-O filed 
        an application seeking authorization to relocate the 
        transmitter for KTMN to a new site.7  This application 
        was granted on September 30, 2002.  Following a finding 
        by the Media Bureau that A-O's license for KTMN 
        cancelled automatically as of 12:01 a.m. November 8, 
        2002, for extended silence,8 A-O filed an application 
        for a license to cover the facilities constructed at the 
        new site on April 30, 2003, and for renewal of that 
        license on July 3, 2003.  These applications were not 
        acceptable for filing because there was no currently 
        authorized station warranting a covering license or a 
        license renewal.  Accordingly, on July 31, 2003, the 
        Media Bureau dismissed both of these applications as 
        inadvertently accepted for filing.9  On April 13 and 15, 
        2004, A-O filed applications for an STA to construct and 
        operate a radio station at its new site.10
III.      Discussion

     7.   We reject A-O's contention that the violations noted in 
        the Forfeiture Order resulted from the FCC agents' 
        request for test transmissions on November 14, 2001, 
        while KTMN was silent.  All of the violations that 
        served as the basis for the Forfeiture Order occurred 
        during KTMN's period of operation between October 5, 
        2001 (the date the Commission granted the license for 
        KTMN), and November 7, 2001 (the date A-O said it 
        discontinued operation of KTMN).11  Therefore, the 
        violations, some of which were the subject of a 
        complaint to the FCC, had already occurred at the time 
        of the test transmissions and were not the result of the 
        agents' request for test transmissions.
     8.   We also reject A-O's implication that our imposition of 
        a forfeiture for A-O's RFR violations (Section 1.1310) 
        is inconsistent with the prior grant of a construction 
        permit on the basis of A-O's ``detailed disclosure of 
        the nature of the proposed facility.''  We sufficiently 
        addressed this argument in the Forfeiture Order12 and A-
        O has raised nothing new.
     9.   Additionally, we reject A-O's claim that the ``alleged 
        five meter difference [between the authorized level of 
        A-O's antenna and the lower level observed by FCC 
        agents] is not material to the existence of excessive RF 
        levels.''  A-O provides no basis for its claim. The 
        agents' measurements and calculations with A-O's antenna 
        at 13 meters, however, show that the five meter 
        difference did, in fact, lead to an excessive RFR level 
        on the ground.  Further, the terms and conditions upon 
        which A-O's license was granted were based on A-O's 
        representation in its application  that the antenna 
        would be mounted at 18 meters AGL.
     10.  A-O implies that our finding that its antenna was not 
        mounted at its authorized level is inadequately 
        supported because it is based solely on the information 
        from FCC agents.  The agents determined the level of A-
        O's antenna through the use of a laser range finder.  We 
        find that this evidence adequately supports our finding 
        that A-O's antenna was not mounted at its authorized 
        level.  A-O provides no contrary evidence.
     11.  We reject A-O's contention that its owner ``had no 
        reason to suppose'' A-O's antenna was mounted lower than 
        authorized.  We sufficiently addressed this argument in 
        the Forfeiture Order,13 and A-O has raised nothing new 
        with respect to it.
     12.  A-O's claim that it ``was doing what it could to avoid 
        any prohibitive RF exposure'' when it suspended the 
        operation of KTMN on November 7, 2001, is not 
        credible.14  This is the first time A-O has made such a 
        claim.  On November 14, 2001, A-O's President stated to 
        the FCC agents that KTMN had been off the air since 
        November 7, 2001, because of damage resulting from a 
        power surge and, in its letter filed with the Commission 
        on January 9, 2002, A-O stated that KTMN ceased 
        transmitting on November 7, 2001, ``as a result of a 
        transient failure of the station's computer.''
     13.  With respect to the Section 1.1310 violation, A-O now 
        claims that KTMN did not broadcast continuously between 
        October 5 and November 7, 2001, and operated for ``less 
        than 40 hours total'' during that period.  A-O does not 
        specify the dates or times of its operation for ``less 
        than 40 hours total'' and does not provide any 
        documentary support for its claim such as logs or sworn 
        statements.   In the absence of adequate support we 
        cannot accept this claim, but even if we were to accept 
        it, we would not reduce the portion of the forfeiture 
        imposed for A-O's RFR violation (Section 1.1310) because 
        the hazard to human health would still have been 
        significant.
     14.  A-O's contention that it was not required to have a 
        main studio or functional EAS equipment because it was 
        silent is not material because, as noted above, the main 
        studio and EAS violations existed during the period of 
        KTMN's operation (between October 5 and November 7, 
        2001), before it went silent.15  Further, A-O provides 
        no evidence that it complied with these rules during 
        this period of operation.
     15.  A-O argues that it is a victim of entrapment, citing 
        Sorrells v. United States, 287 U.S. 435, 442 (1932) 
        (``Sorrells'').  The alleged entrapment apparently 
        refers to the November 14, 2001, test transmissions made 
        at the request of FCC agents.  The defense of entrapment 
        is generally limited to criminal proceedings16 but may 
        also be available in ``quasi-criminal'' administrative 
        proceedings.17  Because FCC enforcement actions are not 
        criminal or quasi-criminal proceedings, but are 
        administrative proceedings to enforce public safety and 
        other rules by seeking recovery of civil penalties, the 
        defense of entrapment is not available to A-O.  
        Moreover, willful and repeated violations18 sufficient 
        to support the forfeiture occurred between October 5 and 
        November 7, 2001, KTMN's period of operation.  This was 
        prior to November 14, 2001, the date of the alleged 
        entrapment.  Even assuming arguendo that the entrapment 
        defense would be available in this case, we could not 
        find that there was entrapment.  The defense of 
        entrapment can be maintained ``only where, as a result 
        of inducement, the accused is placed in the attitude of 
        having committed a crime which he did not intend to 
        commit, or where, by reason of the consent implied in 
        the inducement, no crime has in fact been committed.''19  
        In this case, all of the violations began well before 
        November 14, 2001, and, therefore, the agents' request 
        for test transmissions on that date could not have 
        induced A-O to commit the violations.
     16.  A-O again claims that it cannot pay the forfeiture.  In 
        the Forfeiture Order, we found that, to determine A-O's 
        ability to pay the monetary forfeiture, we needed 
        additional information about the resources available to 
        A-O such as A-O's lines of credit and liquid assets and 
        the assets and income of A-O's owner (``the additional 
        information'').  A-O argues that this is ``a radical 
        departure from precedent,'' that we did not seek such 
        information in the NAL or in previous forfeiture cases, 
        that we ignored A-O's corporate existence, and that we 
        misrepresented the meaning of the language of PJB 
        Communications of Virginia, Inc. (``PJB'').20  We reject 
        all of these arguments.  First, our ruling in the 
        Forfeiture Order did not depart from precedent.21  While 
        A-O discusses numerous FCC cases concerning the ability 
        to pay a monetary forfeiture,22 none of these cases 
        addresses the question we have here:  how the licensee 
        of a new station without revenues can establish its 
        inability to pay a monetary forfeiture.  We have 
        addressed this question for the first time in this 
        proceeding.  Second, although we did not include the 
        additional information in the NAL's description of the 
        information needed to evaluate an inability to pay claim 
        and did not do so in previous cases, we determined in 
        the Forfeiture Order that we need the additional 
        information to evaluate A-O's claim of inability to pay 
        the forfeiture.  A-O had the opportunity to provide the 
        necessary resource information in its petition for 
        reconsideration but did not do so.  Third, we did not 
        ignore A-O's corporate existence.23   In fact, it was A-
        O who put recognition of its corporate existence at 
        issue when it claimed an inability to pay the forfeiture 
        and in support of its claim provided financial 
        documentation that indicated that A-O had no revenues 
        and its primary source of funding was its sole 
        shareholder.  In a case such as this, where A-O's sole 
        shareholder appears to be providing substantial 
        resources to A-O, we need information about A-O's access 
        to these and other resources to determine whether A-O 
        can pay the forfeiture.  Finally, we did not 
        misrepresent the meaning of the language of our PJB 
        decision, which clearly allows indicators other than a 
        violator's gross revenues to be considered in 
        determining ability to pay a monetary forfeiture.24
     17.  As we stated in the Forfeiture Order, a number of 
        circumstances indicate that there are funds available to 
        A-O:  A-O's pending application for review of the Media 
        Bureau's cancellation of its license for station KTMN 
        (implying that A-O has sufficient resources to return 
        KTMN to the air and to operate it),25 and A-O's 
        application for a construction permit at a new site26 
        and subsequent license application for authority to 
        operate at the new site27 (implying that A-O had 
        sufficient funds to reconstruct KTMN at the new site and 
        did so).   After the issuance of the Forfeiture Order, 
        the Denver Office issued a new NAL to A-O on April 23, 
        2004,28 for a forfeiture in the amount of ten thousand 
        dollars ($10,000) for operation of an unlicensed full-
        service FM broadcast radio station, in apparent willful 
        and repeated violation of Section 301 of the Act.29  The 
        fact that A-O constructed and operated KTMN as a full-
        service FM broadcast station at the new site indicates 
        that A-O apparently has sufficient funding to operate a 
        radio station, and thus must provide more documentation 
        to prove its inability to pay the forfeiture.
     18.  Although A-O did not provide financial information with 
        its petition for reconsideration, we are taking official 
        notice of the financial information A-O submitted with 
        its response to the separate NAL issued on April 23, 
        2004.  That information indicates that A-O is a 
        ``development stage company'' which has no revenues and 
        little or no cash on hand or other liquid assets.  The 
        information further indicates that apparently A-O's 
        operations and capital investments are funded primarily 
        by loans and, to a lesser extent, by issuing new stock.  
        According to the financial information, A-O's loans are 
        from its shareholder and from the Southern New Mexico 
        Radio Foundation, whose president is also the owner and 
        president of A-O.  If A-O wants to continue to pursue 
        its inability to pay claim, A-O must prove that it does 
        not have access to the resources necessary to pay the 
        forfeiture.  Since A-O has not proven this, we are 
        unable to determine that it cannot pay the forfeiture 
        amount and we will not reduce the forfeiture on the 
        basis of A-O's inability to pay.
     19.  We have examined A-O's petition for reconsideration 
        pursuant to the statutory factors prescribed by Section 
        503(b)(2)(D) of the Act,30 and in conjunction with the 
        Commission's Forfeiture Policy Statement and Amendment 
        of Section 1.80 of the Rules to Incorporate the 
        Forfeiture Guidelines,31 as well.  As a result of our 
        review, we again conclude that A-O willfully and 
        repeatedly violated Sections 1.1310, 11.35, 73.1125, and 
        73.1400 of the Rules and that the appropriate forfeiture 
        amount is $25,000.
IV.  Ordering Clauses

     20.  Accordingly, IT IS ORDERED that, pursuant to Section 
        405 of the Act32 and Section 1.106 of the Rules,33 A-O 
        Broadcasting Corporation's petition for reconsideration 
        of the Forfeiture Order IS DENIED and the Forfeiture 
        Order IS AFFIRMED.
     21.  Payment of the forfeiture shall be made in the manner 
        provided for in Section 1.80 of the Rules within 30 days 
        of the release of this Order.  If the forfeiture is not 
        paid within the period specified, the case may be 
        referred to the Department of Justice for collection 
        pursuant to Section 504(a) of the Act.34  Payment of the 
        forfeiture must be made by check or similar instrument, 
        payable to the order of the Federal Communications 
        Commission.  The payment must include the NAL/Acct. No. 
        and FRN No. referenced above.  Payment by check or money 
        order may be mailed to Forfeiture Collection Section, 
        Finance Branch, Federal Communications Commission, P.O. 
        Box 73482, Chicago, Illinois 60673-7482.  Payment by 
        overnight mail may be sent to Bank One/LB 73482, 525 
        West Monroe, 8th Floor Mailroom, Chicago, IL 60661.  
        Payment by wire transfer may be made to ABA Number 
        071000013, receiving bank Bank One, and account number 
        1165259.  Requests for full payment under an installment 
        plan should be sent to: Chief, Revenue and Receivables 
        Group, 445 12th Street, S.W., Washington, D.C. 20554.
     22.  IT IS FURTHER ORDERED THAT a copy of this Order shall 
        be sent by Certified Mail, Return Receipt Requested to 
        A-O Broadcasting Corp., Attention:  Robert Flotte, 3001 
        North Florida Avenue, Alamogordo, New Mexico 88310-9794, 
        and its counsel, Paul Brown, Esq., Wood, Maines & Brown, 
        Chartered, 1827 Jefferson Place, N.W., Washington, D.C. 
        20036.
                                FEDERAL            COMMUNICATIONS 
COMMISSION



                                 Marlene H. Dortch
                                 Secretary
_________________________

1  The Commission's records now list the station call sign as 
``DKTMN'' to reflect its deletion.

2  On January 3, 2003, the Media Bureau notified A-O by letter 
that its license for station KTMN expired on November 7, 2002, 
pursuant to Section 312(g) of the Communications Act of 1934, as 
amended (``Act''), 47 U.S.C.  312(g), because of A-O's failure 
to transmit broadcast signals on the station for a consecutive 
12-month period. Letter to Paul H. Brown, Esq., 18 FCC Rcd 35 (MB 
2003) (license forfeited and call sign deleted). By its letter of 
March 11, 2003, the Media Bureau denied A-O's petition for 
reconsideration.  Letter to Paul H. Brown, Esq., 18 FCC Rcd 3818 
(MB 2003).  An application for review of that action is pending.

3  A-O  Broadcasting  Corporation,   18  FCC  Rcd  27069   (2003) 
(``Forfeiture Order'').

4  47 C.F.R.  1.1310, 11.35, 73.1125, and 73.1400.

5 Pursuant to its license at that time, KTMN was authorized to 
operate on frequency 97.9 MHz with an effective radiated power 
(``ERP'') of 100 kW and a center of radiation equal to 18 meters 
above ground level  (``AGL'').  See File No. BLH-20010924AAM 
granted on October 5, 2001.  

6 A-O Broadcasting, Inc., 17 FCC Rcd 24184 (2002).     

7 File No. BPH-20020822AAC.

8 See  47  U.S.C.   312(g)  (if  a broadcast  station  fails  to 
transmit broadcast signals for  any consecutive 12-month  period, 
then the  station  license  granted for  the  operation  of  that 
broadcast station expires at the end of that period).

9 A-O's petition for reconsideration  of those dismissals is  now 
before the  Media Bureau.  (File  Nos. BLH-20030703ACD  and  BRH-
20030703ACC).  See also note 2, supra.

10 These applications are now before the Media Bureau (File  Nos. 
BLSTA-20040413ABX and BLSTA-20040415AGE).

11 As indicated in the Forfeiture Order at fn. 15, we need not 
discuss whether the violations of Sections 11.35, 73.1125 and 
73.1400 of the Rules apply to KTMN's period of silence because 
these violations existed throughout KTMN's period of operation.

12 Forfeiture  Order  at  29073,   15  (where  station  was  not 
constructed as proposed, FCC's  review of RFR analysis  submitted 
with application does not prevent it from imposing forfeiture for 
excessive RFR).

13 Id  at 27093,   15  (licensee chargeable  with employee's  or 
contractor's knowledge of location of antenna).

14 Even assuming arguendo that A-O suspended operation to prevent 
excessive RFR exposure, A-O, as pointed out above and in the 
Forfeiture Order, violated Section 1.1310 of the Rules during its 
October 5 through November 7, 2001, period of operation.

15 As indicated  above in fn  10, we need  not determine  whether 
these  violations  continued  during  KTMN's  period  of  silence 
because A-O  was charged  with violating  these rules  throughout 
KTMN's period of operation.

16 See Sorrells at 442.

17 See Rodriguez v. United States, 534 F. Supp. 370, 373  (D.P.R. 
1982); New York v. Adorno, 1987 WL 19642 (S.D.N.Y. 1987).

18  Sections 1.1310, 11.35, 73.1125, and 73.1400 of the Rules.

19 Sorrells  at 442.

20 7 FCC Rcd 2088 (1991).   

21 The Commission has looked to potential sources of income 
available to a violator when considering a violator's ability to 
pay a forfeiture.  See, e.g. KASA Radio Hogar, 17 FCC Rcd 6256 
(2002).   

22 Sonderling Broadcasting Corp., 69 FCC 2d 289 (1977); ABC, 
Inc., 18 FCC Rcd 25647 (Enf. Bur. 2003);  Tricounty Telephone 
Co., 54 Rad. Reg. 2d 1065 (Com. Car. Bur. 1983); PJB; First 
Greeneville Corporation, 11 FCC Rcd 7399 (1996); Benito Rish, 10 
FCC Rcd 2861 (1995); Pinnacle Communications, Inc., 11 FCC Rcd 
15496 (1996); N&W Promotions, Inc., 18 FCC Rcd 22341 (Enf. Bur. 
2003); Lighthouse Broadcasting, 18 FCC Rcd 9573 (Enf. Bur. 2003); 
C.W.H. Broadcasting, Inc., 17 FCC Rcd 14324 (Enf. Bur. 2003); 
Radio Moultrie, Inc., 8 FCC Rcd 4266 (Mass Media Bur. 1993); 
Target Telecom, Inc., 13 FCC Rcd 4456 (Com. Car. Bur. 1998); Bear 
Communications, 12 FCC Rcd 18108 (Compl. & Info. Bur. 1997); 
Kenneth Paul Harris, Sr., 15 FCC Rcd 23991 (Enf. Bur. 2000); 
Natchez Communications, inc., 15 FCC Rcd 4628 (Enf. Bur. 2000), 
recon. denied, 15 FCC Rcd 18798 (Enf. Bur. 2000); and Hill 
Country Radio, Inc., 14 FCC Rcd 17708 (Mass Media Bur. 1999).

23 By suggesting that A-O could provide financial information 
about its owner to demonstrate its inability to pay claim, we 
recognize that it may appear that we are attempting to pierce the 
corporate veil.  However, we note that we do not have sufficient 
information at this time to determine whether the corporate veil 
should be pierced, nor do we seek to do so.  Our only goal is to 
evaluate A-O's claim of inability to pay which it has raised in 
this proceeding.  We further note that an evaluation of A-O's 
separate corporate existence may become necessary if A-O wishes 
to pursue its inability to pay claim.  See Dimension Cable TV, 
Inc., 25 FCC 2d 520 (1970), reconsideration denied, 27 FCC 2d 43 
(1971); Telecable Corp., 19 FCC 2d 574 (1969) (cases in which the 
Commission pierced the corporate veil).

24 The relevant language is:  ``In general, a licensee's gross 
revenues are the best indicator of its ability to pay a 
forfeiture.  Nevertheless, we recognize that in some cases, other 
financial indicators . . . may also be relevant.'' PJB at 2089.  
We believe this is such a case.

25 See Letter to Paul H. Brown, Esq., fn 1, supra.

26 Granted September 30, 2002 (File No. BPH-20020822AAC).

27 Dismissed July 31, 2003 (File No. BLH-20030703ACD).

28 Notice  of  Apparent  Liability for  Forfeiture,  NAL/Acct  No 
200432800001 (Enf. Bur., Denver Office, released April 23, 2004).

29 47 U.S.C.  301.

30 47 U.S.C.  503(b)(2)(D).

31 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

32 47 U.S.C.  405.

33 47 C.F.R.  1.106.

34 47 U.S.C.  504(a).