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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554
      In the Matter of                                     
                              )
                              )        File Number 98080351                                      
                              )
                  KEVIN HACKLER                                                  NAL/Acct. No. x32080020                               
            )                 )
                              )
    Licensee,  Station KSRW(FM)                                 
                        )     )
                                                                              
               )
               Childress, Texas                                                  
                              )
                              )




           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  July 13, 2000                   Released:  July  14, 
2000 

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
("NAL"), we  find  that Kevin  Hackler  (``Hackler'')  apparently 
violated  Section  310(d)  of  the  Communications  Act  of  1934 
(``Act''), as amended1, and  Section 73.3540 of the  Commission's 
rules2, by  transferring  control  of  commercial  radio  Station 
KSRW(FM),  Childress,  TX,  without  first  obtaining  Commission 
approval, and Section  73.3615(c) of the  Commission's rules3  by 
failing to file an updated ownership report with the  Commission.  
We conclude  that  Kevin  Hackler  is  apparently  liable  for  a 
forfeiture in the amount of eleven thousand dollars ($11,000).





                         II.  BACKGROUND

     2.   By  inquiry  letter  dated   September  23,  1999,   we 
commenced  an  investigation   into  allegations  that   Hackler, 
licensee of  commercial radio  Station KSRW(FM),  Childress,  TX, 
violated Section 310(d)  of the  Communications Act  of 1934,  as 
amended ("the  Act"), and  Section  73.3540 of  the  Commission's 
rules by  transferring control  of the  station to  Kenneth  Paul 
Harris,   Sr.   (``Harris'')   without   obtaining   the    prior 
authorization of the Commission.  The allegations were  contained 
in a  confidential  complaint  filed on  August  12,  1999.   The 
complaint  cites  locally  published   lien  transfer  and   sale 
documents which suggest that transfer  of the station took  place 
on or about July 8, 1999,  even though the licensee had not  then 
obtained prior  Commission authorization.4   After examining  our 
files, it  also  appeared that  the  licensee had  not  submitted 
required station ownership information  and documentation to  the 
Commission, in possible  violation of Section  73.3615(c) of  the 
Commission's rules.   We made  further  inquiry by  letter  dated 
April 6, 2000.  Hackler and Harris filed submissions in  response 
to our inquiries on October 18, 1999, February 11, 2000, and  May 
11, 2000.
     
                        III.  DISCUSSION

     3.   Unauthorized Transfer  of Control.   Section 310(d)  of 
the Act prohibits the transfer  of control of a station  license, 
and any rights thereunder, without prior Commission consent.  See 
47 C.F.R.  73.3540 and 73.3541.   There is no exact formula  by 
which control of a  broadcast station can  be determined.  It  is 
well settled that  "control," as  used in the  Act and  pertinent 
Commission rules,  encompasses all  forms of  control, actual  or 
legal, direct or indirect, negative or affirmative, and that  the 
passage of de facto as well as de jure control demands the  prior 
consent of the Commission.  See, e.g., Stereo Broadcasters, Inc., 
55 FCC 2d 819, 821 (1975), modified, 59 FCC 2d 1002 (1976).  

     4.   We traditionally look beyond the legal title to whether 
a new entity or  individual has obtained  the right to  determine 
the basic  operating  policies  of the  station  in  ascertaining 
whether a transfer of control  has occurred.  See WHDH, Inc.,  17 
FCC 2d 856 (1969) aff'd sub nom. Greater Boston Television  Corp. 
v. FCC, 444 F.2d 841 (D.C. Cir. 1970) cert. denied, 403 U.S.  923 
(1971).  Specifically,  we  look  to  three  essential  areas  of 
station operation:   programming, personnel  and finances.   See, 
e.g., Stereo  Broadcasters, Inc.,  87 FCC  2d 87  (1981),  recon. 
denied, 50 RR 2d  1346 (1982).  A  licensee may delegate  certain 
functions on a day-to-day basis to an agent or employee, but such 
delegation cannot  be  wholesale.   See,  e.g.,  Southwest  Texas 
Public Broadcasting Council, 85 FCC 2d 713, 715 (1981).  That is, 
those persons assigned a task must  be guided by policies set  by 
the permittee or licensee.  See David A. Davila, 6 FCC Rcd  2897, 
2899 (1991).  Moreover, the standards by which we measure control 
are equally applicable in situations involving ``time brokerage'' 
or ``management agreements.''  Choctaw Broadcasting  Corporation, 
12 FCC Rcd 8534, 8538 (1997).

     5.   Review of our records reveals that Hackler has been the 
station's licensee  since  approximately August  20,  1996.5   In 
response to our  query, Hackler  explains that in  June 1999,  he 
experienced financial  difficulties and  took steps  to sell  the 
station  to   long-time  station   employee  Harris.    In   this 
connection, Hackler  first  assigned his  outstanding  promissory 
note and station equipment lien,  held by NationsBank, to  Harris 
in July  1999 to  avoid  foreclosure.  Hackler  argues,  however, 
that, pursuant to an oral  management agreement, he retained  the 
right to ``full and unlimited  access to [the] equipment''  until 
such time  as the  Commission approved  Harris as  the  assignee.  
Hackler emphasizes that he has remained in control of the station 
at all times, notwithstanding contrary representations he made in 
bank financing documents.   Both Hackler  and Harris  acknowledge 
that because  they entered  this agreement  without first  having 
obtained legal counsel, their actions were ``unconventional'' and 
did not always observe  pertinent Commission policies  concerning 
station control.   However, it  was not  until October  6,  1999, 
subsequent to the complaint and our September 23, 1999,  inquiry, 
that the  parties  entered  into a  revised,  written  management 
agreement that purports to comply with those policies.
          
     6.   In this case, we find that an unauthorized transfer  of 
control took place at Station KSRW(FM) on or about July 8,  1999, 
and has continued since that time.  While accepting the  parties' 
representations  that  de  facto  control  of  the  station   was 
ultimately restored  to the  status quo  ante, we  note that  the 
record indicates that de jure control of the station shifted from 
the licensee on  July 8, 1999,  and has not  been restored.    In 
this regard, the lien transfer documents executed by and  between 
Hackler and Harris on  July 8, 1999 and  July 12, 1999,  indicate 
that Hackler conveyed all pertinent station ``equipment, accounts 
receivable, inventory,  furniture, fixtures  .  . .  radio  tower 
equipment, transmitters, FCC licenses,  and all other  properties 
related   thereto''   to   Harris.    Moreover,   the   documents 
specifically refer to  Harris as the  radio station's  ``owner.''  
Hackler contends  that the  documents in  question do  not  truly 
reflect events at the station, because they were executed  merely 
to appease the  station's lenders.   However, Hackler's  argument 
ignores that the documents'  execution improperly transferred  de 
jure control of the station  from him, which we cannot  overlook.  
Moreover, Hackler provides no evidence that this transaction  was 
ever nullified.   Accordingly,  a  forfeiture  is  warranted  for 
unauthorized de jure transfer of control.
 
     7.   Failure to  File  Required Forms  or  Information.   As 
noted  above,  on  August   20,  1996,  the  Commission   granted 
assignment of  the station's  license to  Hackler from  Eddie  J. 
Leary.  Our records do not reflect that the date of  consummation 
of that transaction was ever  reported to the Commission  through 
an updated  Form 323  ownership report,  as required  by  Section 
73.3615(c) of the Commission's rules.   In response to our  query 
on this issue, Hackler indicates that he ``believes he  forwarded 
all  documents  and  ownership   reports  to  the   Commission.''  
However, despite  our  specific  request that  he  indicate  when 
consummation  occurred  and   submit  appropriate   documentation 
therefor, he declined to answer or provide proof that an  updated 
ownership report was filed within thirty days of consummation, or 
at any  time.  Consequently,  it appears  that the  licensee  has 
violated   Section   73.3615(c)   of   the   Commission's   rules 
continuously since failing to  report consummation of the  August 
20,  1996,  license   assignment.  Accordingly,   we  believe   a 
forfeiture is warranted. 

     8.   Based on  the  evidence before  us,  we find  that  the 
licensee transferred  station  control  without  obtaining  prior 
authorization, and apparently  willfully and repeatedly  violated 
Section 310(d) of the Act and Sections 73.3540 and 73.3615(c)  of 
the Commission's  rules.6   The  Commission's  Forfeiture  Policy 
Statement7 sets  a  base  forfeiture amount  of  $8,000  for  the 
unauthorized substantial transfer of  control and $3,000 for  the 
failure to file required forms or information.  We have  reviewed 
Hackler's response  to our  letter  of inquiry,  and we  find  no 
reason to decrease  the instant  proposed penalty  from the  base 
forfeiture amount. In this connection, Hackler's explanation that 
he ``never intended'' to violate the Commission's rules does  not 
excuse or mitigate  his actions.  Empire  Broadcasting Corp.,  25 
FCC 2d 68 (1970); Victor Valley Broadcasting, Inc., 2 FCC 2d  495 
(1966).   Moreover,  Hackler  does  not  indicate  that  he  took 
specific steps prior to entering into the arrangement with Harris 
to ensure that his actions complied with the Commission's  rules.  
See, e.g., Liability of Monte Corporation, 11 FCC Rcd 20535  (MMB 
1996) (reliance upon prior  advice given by recognized  authority 
may, in appropriate cases, demonstrate licensee's ``good  faith'' 
effort to comply with  Commission rules and justify  mitigation).  
In sum, we  believe that  the nature of  the apparent  violations 
require the imposition of the respective base monetary forfeiture 
amounts.

                      IV.  ORDERING CLAUSES

     9.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of  the  Communications  Act of  1934,  as  amended8,  and 
Sections 0.111, 0.311 and 1.80 of the Commission's rules9,  Kevin 
Hackler is  hereby  NOTIFIED  of his  APPARENT  LIABILITY  FOR  A 
FORFEITURE in the amount of eleven thousand dollars ($11,000) for 
violating the provisions  of the Act  and the Commission's  rules 
requiring licensees to obtain  Commission authorization prior  to 
transferring substantial  station  control, pursuant  to  Section 
310(d) of the Act and Section 73.3540 of the Commission's  rules, 
and for failing to  file required forms  or information with  the 
Commission, pursuant to  Section 73.3615(c)  of the  Commission's 
rules. 

     
     10.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Commission's rules10, within thirty days of the RELEASE  DATE 
of this NOTICE OF APPARENT LIABILITY, Kevin Hackler SHALL PAY the 
full amount of the  proposed forfeiture or  SHALL FILE a  written 
statement seeking  reduction  or  cancellation  of  the  proposed 
forfeiture.

     11.  Payment of the  forfeiture may be  made by credit  card 
through the  Commission's Credit  and Debt  Management Center  at 
(202) 418-1995  or  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.  The payment should note the NAL/Acct. No. referenced 
above.

     12.  The  response,   if  any,   must  be   mailed  to   the 
Commission's Investigations  and Hearings  Division,  Enforcement 
Bureau, 445 Twelfth Street,  S.W., Room 3-B443, Washington,  D.C. 
20554, and MUST INCLUDE the file number referenced above.  

     13.  The Commission will not consider reducing or  canceling 
a forfeiture in response  to a claim of  inability to pay  unless 
the petitioner  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 petitioner'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.  

     14.  Requests for payment of the full amount of this  Notice 
of Apparent Liability  under an installment  plan should be  sent 
to: Chief, Credit  and Debt Management  Center, 445 12th  Street, 
S.W., Washington, D.C. 20554.11 

     15.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall be  sent by  Certified Mail  --  Return 
Receipt Requested to Kevin  Hackler, 1511 Avenue  F, P.O. Box  5, 
Childress, Texas 79201.



                              FEDERAL COMMUNICATIONS COMMISSION
                         

                              David H. Solomon
                              Chief, Enforcement Bureau






_________________________

1 47 U.S.C.  310(d).

2 47 C.F.R  73.3540.

3 47 C.F.R  73.3615(c).

4 In response to the complaint and our query, the parties filed a 
Form 315 application proposing assignment of the station's 
license from Hackler to Harris (File No. BALH-990927AAM) and 
entered into a written interim ``Management Agreement'' which 
specifies Harris as the station's manager.  That assignment 
application remains pending with the Mass Media Bureau.

5 This  reflects the  date that  the Commission's  staff  granted 
assignment of  the station's  license to  Hackler from  Eddie  J. 
Leary.  Our records do not reflect that the date of  consummation 
of that transaction was ever  reported to the Commission  through 
an updated  Form 323  ownership  report, as  required.   However, 
noting grant of  the subsequent  license renewal  to Hackler,  we 
infer that consummation occurred.   See File No. BRH-970404WO.


6 We note that the statute requires only that the conduct in 
question, in order to be sanctionable, be either ``willful'' or 
``repeated.''  See 47 U.S.C.  503(b)(1)(B).  In this case, 
Hackler's apparent violation of Section 73.3540 of the 
Commission's rules is both ``willful'' and ``repeated'' because 
he intended to engage in the transaction that resulted in the 
unauthorized transfer of de jure control, and the violation has 
been continuous.  Hackler's apparent violation of Section 
73.3615(c) of the Commission's rules is ``repeated'' because his 
failure to file the required information has been continuous.  
See Southern California Broadcasting Co., 6 FCC Rcd 4387-88 
(1991).

7 See Report and Order, The Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Commission's 
Rules, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 
(1999).

8 47 U.S.C.  503(b).

9 47 C.F.R.  0.111, 0.311, 1.80.
10
 47 C.F.R.  1.80.
11
 47 C.F.R.  1.1914.