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

In the Matter of                 )
BEAR VALLEY BROADCASTING, INC.   )    File No. 99100489
                                )    NAL/Acct. No. 20013208006
Proposed Assignee of Low Power   )    Facility #63149
Television Station K06MU, Big    )    JWS
Bear Lake, California            )


   Adopted:  October 18, 2000           Released:   October   20, 

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture, we 
find that  Bear  Valley  Broadcasting,  Inc.  (``Bear  Valley''), 
proposed assignee of low power television station K06MU, Big Bear 
Lake, California, has apparently  violated Section 310(d) of  the 
Communications Act of  1934, as  amended (``Act''),  47 U.S.C.   
310(d), and  Section 73.3540(a)  of  the Commission's  rules,  47 
C.F.R.  73.3540(a), by  assuming de facto  control of the  K06MU 
license without obtaining prior Commission approval.  We conclude 
that Bear  Valley  is apparently  liable  for an  eight  thousand 
dollar ($8,000) forfeiture.

                         II.  BACKGROUND

     2.   The Enforcement  Bureau received  a complaint  alleging 
that K.I.D.S. - TV6, the licensee of K06MU, had sold the  license 
for K06MU without obtaining Commission approval.  As a result  of 
that complaint, on  January 31, 2000,  the Chief,  Investigations 
and Hearings Division,  sent a  letter of inquiry  to K.I.D.S.  - 
TV6.  Although K.I.D.S. -  TV6 did not respond  to the letter  of 
inquiry, Bear Valley  filed a  response on March  23, 2000.   The 
staff then sent two additional letters of inquiry to Bear Valley.

     3.   The staff's  investigation revealed  that on  September 
17, 1999,  K.I.D.S.  -  TV61  and Bear  Valley  entered  into  an 
agreement to sell  the K06MU  license and  station facilities  to 
Bear Valley.  On September 19,  1999, those parties also  entered 
into an  ``Interim  Management  Agreement.''   The  term  of  the 
agreement was through November 30, 1999, but Bear Valley has  the 
right to  ``extend the  term for  such time  as is  necessary  to 
obtain the approval'' for the  assignment of the license to  Bear 
Valley.  Under  the agreement,  Bear Valley  acquired ``full  and 
complete power and exclusive authority  to conduct, on behalf  of 
[the licensee], all  business operations and  transactions on  or 
pertaining to''  K06MU.  The  agreement also  provided that  Bear 
Valley (1) receives all  monies derived from station  operations, 
except for  certain  insurance benefits,  (2)  has the  right  to 
establish all policies for the television station, (3) can employ 
personnel for  the operation  of the  station, and  (4) can  make 
whatever changes to the station's  property or equipment that  it 
deems appropriate.  Bear Valley also assumed any loss that  might 
result  from  the  station's  operation  during  the   management 
agreement.  K.I.D.S. - TV6 may terminate the management agreement 
only if  Bear  Valley  files  for bankruptcy  or  was  placed  in 
receivership,  or  if  Bear  Valley  defaults  on  any   material 
provision of the agreement, and  the default is not cured  within 
60 days or such longer period as is reasonable.

     4.   Bear Valley states that under the management agreement, 
its principal Robert Cartwright controls the station's  financial 
records and  books, pays  the station's  operating expenses,  and 
establishes the station's  management.  Mr.  Cartwright and  Bear 
Valley principal  Jacque P.  Montero  interview, hire,  and  fire 
station personnel, establish station management, and maintain the 
programming format (which is the  same format used by K.I.D.S.  - 
TV6).  Bear  Valley  pays a  contract  engineer to  maintain  the 
station's facilities.

     5.   On December 22,  1999, Chuck Foster,  the principal  of 
K.I.D.S. -  TV6, pled  guilty  in the  Superior Court,  State  of 
California, County of  San Bernardino,  to a  criminal charge  of 
felony insurance fraud.   See People  v. Chuck  Foster, Case  No. 
FVI009947.  Mr.  Foster was  incarcerated  in state  prison.   On 
February 9, 2000, Mr. Foster was sentenced to two years in prison 
(with credit for time previously served).  Bear Valley represents 
that prior to Mr. Foster's incarceration, Mr. Cartwright and  Mr. 
Foster discussed  the  station's  operations on  almost  a  daily 
basis.  As  of June  22, 2000,  Mr. Cartwright  had not  received 
permission to  visit  Mr. Foster  in  prison, although  they  had 
spoken on the telephone ``on  a number of occasions.''  See  Bear 
Valley June 23, 2000 Response to Letter of Inquiry, Response 3.

     6.   K.I.D.S. - TV6 and Bear Valley filed an application for 
the Commission's  consent to  assign the  K06MU license  to  Bear 
Valley on January  12, 2000 (File  No. BALTVL-20000112ABO).  That 
application remains pending.

                      III.      DISCUSSION

     7.        Section 310(d) of  the Act  provides in  pertinent 

     No . .  . station  license, or  any rights  thereunder, 
     shall be transferred, assigned,  or disposed of in  any 
     manner,  voluntarily  or  involuntarily,  directly   or 
     indirectly,  or   by  transfer   of  control   of   any 
     corporation holding such permit license, to any  person 
     except upon  application  to the  Commission  and  upon 
     finding by  the Commission  that the  public  interest, 
     convenience, and necessity will be served thereby.

Similarly, Section  73.3540(a)  of  the  Commission's  rules,  47 
C.F.R.  73.3540(a), provides, ``Prior consent of the FCC must be 
obtained for a voluntary assignment or transfer of control.''

     8.   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 to situations involving ``time brokerage'' 
or ``management agreements.''  Choctaw Broadcasting  Corporation, 
12 FCC Rcd 8534, 8538 (1997).

     9.   In this case,  Bear Valley appears  to have assumed  de 
facto control  of the  station through  the management  agreement 
with K.I.D.S. - TV6.  The  terms of the management agreement  and 
the actual  conduct of  the  parties show  that Bear  Valley  has 
actually set station policies, as opposed to simply managing  the 
station under Mr. Foster's direction.  Under the agreement,  Bear 
Valley has ``full and complete power and exclusive authority'' to 
operate the station.   Moreover, Bear Valley  assumed all of  the 
financial risks and the financial benefits from the operation  of 
the station.  All  of the station's  employees are Bear  Valley's 
employees, and  Bear  Valley  has  the  exclusive  right  to  set 
personnel policies for the station.   Mr. Foster appears to  have 
no  current  role  in  the  station's  operation  because  he  is 
incarcerated.  Under these circumstances, Bear Valley appears  to 
have acquired ultimate  control over  station operations  without 
prior Commission approval.

     10.   Section 503(b) of the Communications Act, 47 U.S.C.   
503(b), and Section 1.80(a) of the Commission's rules, 47  C.F.R. 
 1.80(a), each state that any person who willfully or repeatedly 
fails to comply with the provisions of the Communications Act  or 
the Commission's rules shall be liable for a forfeiture  penalty.  
For purposes of  Section 503(b)  of the  Communications Act,  the 
term ``willful'' means that the  violator knew it was taking  the 
action in question,  irrespective of  any intent  to violate  the 
Commission's rules.  See Southern California Broadcasting Co.,  6 
FCC Rcd  4387  (1991).  Furthermore, a  continuing  violation  is 
``repeated'' if it lasts  more than one day.   Id., 6 FCC Rcd  at 

     11.   The Commission's  Forfeiture Policy  Statement sets  a 
base forfeiture amount of $8,000 for an unauthorized  substantial 
transfer  of   control.   The   Commission's  Forfeiture   Policy 
Statement and  Amendment  of  Section 1.80  of  the  Commission's 
Rules, 12 FCC Rcd 17087, 17113  (1997), recon. denied 15 FCC  Rcd 
303 (1999).  Currently,  there is  nothing before  us to  suggest 
that  the  base   amount  should  be   increased  or   decreased.  
Accordingly,  we  believe   that  a  forfeiture   of  $8,000   is 

                      IV.  ORDERING CLAUSES

     12.   ACCORDINGLY, IT IS ORDERED pursuant to Section  503(b) 
of the  Communications  Act of  1934,  as amended,  47  U.S.C.   
503(b), and Sections  0.111, 0.311 and  1.80 of the  Commission's 
rules, 47  C.F.R.   0.111,  0.311 and  1.80, that  Bear  Valley 
Broadcasting, Inc. is hereby  NOTIFIED of its APPARENT  LIABILITY 
FOR FORFEITURE in the amount  of eight thousand dollars  ($8,000) 
for willfully  and repeatedly  violating  Section 310(d)  of  the 
Communications Act of  1934, as  amended (``Act''),  47 U.S.C.   
310(d), and  Section 73.3540(a)  of  the Commission's  rules,  47 
C.F.R.  73.3540(a).

     13.   IT IS FURTHER ORDERED, pursuant to Section 1.80 of the 
Commission's rules, that  within thirty  days of  the release  of 
this Notice, Bear Valley SHALL PAY to the United States the  full 
amount of  the  proposed  forfeiture  or  SHALL  FILE  a  written 
statement seeking  reduction  or  cancellation  of  the  proposed 

     14.   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 

     15.   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 

     16.   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.  See 47 C.F.R.  1.1914.

     17.   The response,  if any,  must be mailed  to Charles  W. 
Kelley, Chief, Investigations and Hearings Division,  Enforcement 
Bureau, Federal Communications Commission, 445 12th Street,  S.W, 
Room 3-B443, Washington DC 20554 and MUST INCLUDE the file number 
listed above.

     18.   IT IS FURTHER ORDERED that a copy of this Notice shall 
be sent, by Certified  Mail/Return Receipt Requested, to  counsel 
for Bear Valley, Howard J.  Barr, Esq., Pepper & Corazzini,  LLP, 
1776 K Street, N.W., Suite 200, Washington, DC 20006-2334.


          David H. Solomon
          Chief, Enforcement Bureau

1  The seller was originally named ``American Sports Kids 
Association.'' The agreement was later amended to substitute 
K.I.D.S. - TV6 as the seller.