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

In the Matter of                   )
AM Broadcast Station KTNC               )    NAL/Acct.   No. 

And C.R. Communications, Inc.           )    Case        No. 

Falls City, Nebraska  68355             )    


     Adopted:  September 26, 2000                 Released:  
September 28, 2000

By the Chief, Enforcement Bureau:

     1.   In this Memorandum  Opinion and Order (``Order''), 
we deny  the Petition  for Reconsideration filed  on January 
19, 2000 by C.R. Communications, Inc. (``CRC'').1  CRC seeks 
reconsideration of  a Forfeiture Order2 in  which the Chief, 
Enforcement  Bureau,   found  CRC  liable  for   a  monetary 
forfeiture in  the amount of $8,000  for willfully violating 
Section  11.35(a) of  the  Commission's Rules  (``Rules'').3  
The forfeiture was assessed for CRC's failure to ensure that 
its Emergency Alert System (``EAS'') equipment was installed 
and functioning  when the station  was in operation,  and to 
note  in the  station log  the  reasons EAS  tests were  not 
received  for a  14-month period.   CRC paid  the forfeiture 
nine days after  the Forfeiture Order was  released, but now 
seeks a reduction and/or  refund of the forfeiture.  Because 
CRC voluntarily paid the forfeiture, it is not entitled to a 
refund.4    Accordingly,   we    deny   its   petition   for 

     2.   CRC claims that it remitted the forfeiture payment 
because it was ``[u]nder threat  of civil action by the U.S. 
Attorney  for  failure to  respond  in  30 days.''   As  the 
Commission has stated on  several occasions,5 the subject of 
an NAL  need not  pay a forfeiture  until the  United States 
seeks recovery and a final judgment is entered by a district 
court after  a trial  de novo.6  Section  504(c) of  the Act 
expressly prohibits  the Commission from  taking prejudicial 
action based on the issuance of an NAL unless the forfeiture 
has been  paid or a  court orders payment.7   Therefore, CRC 
did not  have to pay  the forfeiture until a  district court 
ruled on the matter after a  trial de novo, and, as a matter 
of law,  could not  have been penalized  for doing  so.  See 
Pleasant Broadcasting v.  FCC, 564 F.2d 496,  498 (D.C. Cir. 
1977)   (``forfeitures  imposed   by   the  Commission   are 
recoverable,  absent   voluntary  payment,  only   in  civil 
proceedings  brought  by  United  States  Attorneys  in  the 
district court.'').   We find that CRC  voluntarily paid the 
forfeiture in full on December 30, 1999.  

     3.   As   the    Commission   stated    in   Associated 
Broadcasters,  ``money  that  is paid  voluntarily  under  a 
misapprehension of  the legal rights and  obligations of the 
person  paying, but  in  the absence  of  fraud, duress,  or 
mistake of fact, is not recoverable.''8 CRC's petition makes 
no claim of fraud or mistake of fact that would allow CRC to 
recover its payment. Furthermore, CRC's payment was not made 
under duress  because it could have  simply withheld payment 
and filed for reconsideration of the Forfeiture Order within 
30 days of  its release date, pursuant to  Section 504(a) of 
the Act and Sections 1.104 and  1.106 of the Rules.9  CRC is 
thus not  entitled to  a refund  of its  forfeiture payment.  
Moreover, CRC  has not alleged facts  that would demonstrate 
that  it would  have been  entitled  to a  reduction of  its 
forfeiture   amount  had   it  not   voluntarily  paid   the 

     4.   Accordingly,  IT  IS  ORDERED  that,  pursuant  to 
Section   1.106   of   the   Rules,   CRC's   Petition   for 
Reconsideration IS DENIED.

     5.   IT IS  FURTHER ORDERED that  a copy of  this Order 
shall by  sent by certified mail,  return receipt requested, 
to  C.R. Communications,  Inc.,  P.O. Box  589, Falls  City, 
Nebraska 68355.

                         David H. Solomon
                         Chief, Enforcement Bureau

     1  CRC   captions  its  pleading  as   a  petition  for 
reconsideration of  the Forfeiture Order, but  refers in the 
body of  the document to  Section 1.115 of the  Rules, which 
governs applications for review  by the Commission.  Section 
1.104(b) of the Rules provides the choice of filing either a 
petition for reconsideration or an application for review of 
a final action, but not both.   47 C.F.R.  1.104(b).  If we 
were to  treat the  pleading as  an Application  for Review, 
CRC's  arguments would  be  procedurally  barred by  Section 
1.115(c) of the Rules, because  they raise questions of fact 
upon which  the Bureau has  been afforded no  opportunity to 
pass.   See  47  C.F.R. 1.115(c);  Courtesy  Communications, 
Inc., 14  FCC Rcd 4198,  4202-4203 (1999); Kevin  Johnson, 9 
FCC Rcd  2471, 2473 (1993);  Sherry Rullman, 8 FCC  Rcd 4012 
(1993).  We will  therefore treat this filing  as a Petition 
for Reconsideration pursuant to  Section 1.106 of the Rules, 
47 C.F.R.  1.106.
     2  C.R.  Communications,  Inc.,  DA  99-2960,  1999  WL 
1216133 (Enf. Bur., 1999).

     3 47 C.F.R. 11.35(a).

     4 Where  a party voluntarily  pays a forfeiture,  it is 
not entitled to  a refund, even if the basis  upon which the 
forfeiture was assessed  is later found to  be invalid.  See 
Eagle Radio, Inc., 12 FCC Rcd 5105 (1997).
     5 See, e.g., Associated  Broadcasters, Inc., 12 FCC Rcd 
3324  (1997); Pikes  Peak Broadcasting  Company, 14  FCC Rcd 
19011  (1999); Tri-Valley  Broadcasters,  14  FCC Rcd  19307 

     6 47 U.S.C.  504(a).

7     Section  504(c) provides:   ``[i]n any case  where the 
Commission  issues a  notice of  apparent liability  looking 
toward the imposition  of a forfeiture under  this Act, that 
fact shall not  be used, in any other  proceeding before the 
Commission,  to the  prejudice of  the person  to whom  such 
notice was issued, unless (i)  the forfeiture has been paid, 
or  (ii)  a  court  of competent  jurisdiction  has  ordered 
payment  of  such  forfeiture,  and such  order  has  become 
final.'' 47 U.S.C. 504(c).

8     Associated  Broadcasters, 12  FCC Rcd at  3327, citing 
Putnam Tool Company  v. United States, 147  F.Supp. 746, 748 
(1957), cert. denied, 355 U.S. 825 (1957).

9     47  U.S.C.   504(a); 47 C.F.R.   1.104  and 1.106.  
See also Associated Broadcasters, 12 FCC Rcd at 3327-3328.