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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554
      In the Matter of                                     
                              )
                              )        File Number 98080351                                      
                              )
       KENNETH PAUL HARRIS, SR.                          NAL/Acct. No. x32080019                               
                              )                                                                      
                              )
                              )
     Proposed Assignee, 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  Kenneth Paul  Harris,  Sr.  (``Harris'') 
apparently violated Section 310(d)  of the Communications Act  of 
1934  (``Act''),  as  amended1,   and  Section  73.3540  of   the 
Commission's rules2,  by  assuming control  of  commercial  radio 
Station KSRW(FM),  Childress,  TX, from  licensee  Kevin  Hackler 
(``Hackler'') without  first  obtaining Commission  approval.  We 
conclude that Harris is apparently liable for a forfeiture in the 
amount of eight thousand dollars ($8,000).

                         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 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 to  Harris took  place on  or about  July 8,  1999,  even 
though the licensee had  not obtained Commission  authorization.3  
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 requires 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,  1996.4   In 
response to our query, Harris explains that in June 1999, Hackler 
experienced financial  difficulties and  took steps  to sell  the 
station to him, a long-time station employee. 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  that he made  in 
bank financing documents.   Both Hackler  and Harris  acknowledge 
that because  they entered  this agreement  without having  first 
obtained legal counsel, their actions were ``unconventional'' and 
did  not  always  observe   the  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  to  Harris  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, neither Harris nor  Hackler 
has provided evidence that  this transaction was ever  nullified.  
Accordingly,  we   believe   a  forfeiture   is   warranted   for 
unauthorized de jure transfer of control.
     
     7.   Based on the  evidence before us,  we find that  Harris 
assumed station  control without  obtaining prior  authorization, 
and apparently willfully and  repeatedly violated Section  310(d) 
of the Act and Section  73.3540 of the Commission's rules.5   The 
Commission's Forfeiture Policy Statement6 sets a base  forfeiture 
amount of $8,000  for the unauthorized  transfer of control.   We 
have reviewed both Hackler's and Harris' responses to our  letter 
of inquiry, and we find no reason to decrease the instant penalty 
from the  base forfeiture  amount. In  this connection,  Harris's 
explanation that he was ignorant  of 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, Harris  does not  indicate that  he  took 
specific steps prior to entering his arrangement with Hackler  to 
ensure that  his actions  complied with  the Commission's  rules.  
Rather, it  appears that  relevant legal  advice was  not  sought 
until after the instant complaint was filed and the  Commission's 
inquiry was made.  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  violation  requires  the  imposition  of  the  base 
monetary forfeiture amounts.

                      IV.  ORDERING CLAUSES

     8.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of  the  Communications  Act of  1934,  as  amended7,  and 
Sections 0.111,  0.311  and  1.80  of  the  Commission's  rules8, 
Kenneth Paul  Harris,  Sr. is  hereby  NOTIFIED of  his  APPARENT 
LIABILITY FOR  A  FORFEITURE  in the  amount  of  eight  thousand 
dollars ($8,000) for violating the provisions of the Act and  the 
Commission's  rules  requiring   persons  to  obtain   Commission 
authorization prior  to  assuming  substantial  station  control, 
pursuant to Section 310(d) of the Act and Section 73.3540 of  the 
Commission's rules. 
     
     9.   IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Commission's rules9, within thirty  days of the RELEASE  DATE 
of this NOTICE  OF APPARENT LIABILITY,  Kenneth Paul Harris,  Sr. 
SHALL PAY the  full amount  of the proposed  forfeiture or  SHALL 
FILE a written statement seeking reduction or cancellation of the 
proposed forfeiture.

     10.  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.

     11.  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.  

     12.  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.  

     13.  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. 20554.10 

     14.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall be  sent by  Certified Mail  --  Return 
Receipt Requested-- to Counsel for Kenneth Paul Harris, Sr., Cary 
Tepper, Esq., Booth, Freret, Imlay & Tepper, P.C., 5101 Wisconsin 
Avenue, N.W., Suite 307, Washington, D.C.  20016-4120.

                              FEDERAL COMMUNICATIONS COMMISSION
                         

                              David H. Solomon
                              Chief, Enforcement Bureau






_________________________

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

2 47 C.F.R  73.3540.

3 In response to the complaint and our query, the parties filed a 
Form 314 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 application 
remains pending with the Mass Media Bureau.

4 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 the parties  consummated the sales transaction.    See 
File No. BRH-970404WO.


5 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, 
Harris'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.  See Southern California Broadcasting Co., 6 FCC 
Rcd 4387-88 (1991).

6 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).

7 47 U.S.C.  503(b).

8 47 C.F.R.  0.111, 0.311, 1.80.
9
 47 C.F.R.  1.80.
10
 47 C.F.R.  1.1914.