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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            )

                        FORFEITURE ORDER

   Adopted:  December 18, 2000          Released:   December  20, 
By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

     1.  In  this  Forfeiture Order,  we  find that  Bear  Valley 
Broadcasting, Inc. (``Bear Valley'')  violated section 310(d)  of 
the Communications Act of 1934, as amended (the  ``Communications 
Act'' or the ``Act''), and section 73.3540(a) of the Commission's 
rules by willfully  and repeatedly assuming  de facto control  of 
the K06MU license without  obtaining prior Commission  approval.1  
Based on our review of the  facts and circumstances of this  case 
and after considering  Bear Valley's  response to  our Notice  of 
Apparent Liability (``NAL'')  in this matter,2  we conclude  that 
Bear Valley is  liable for a  forfeiture in the  amount of  eight 
thousand dollars ($8,000). 
                         II.  BACKGROUND

     2.  On September 17, 1999,  K.I.D.S. - TV63 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 
could ``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  is  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.

     3.   Bear  Valley acknowledges  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.

     4.  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  states 
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.

     5.  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.

     6.  We concluded in the NAL that Bear Valley had  apparently 
violated the Act  and our  rules by willfully  assuming de  facto 
control of the station by virtue of the management agreement  and 
the actual conduct of the parties, which reflect that Bear Valley 
actually set station policies and that Mr. Foster had no role  in 
the station's operation.  We further concluded that Bear Valley's 
apparent violation warranted the  base forfeiture established  by 
the  Commission  for  an  unauthorized  substantial  transfer  of 

     7.  In its response  to the NAL,  Bear Valley contends  that 
its ``violation was minor when viewed in the context in which  it 
occurred.''  Pointing  to  Mr.  Foster's  arrest  and  subsequent 
incarceration, Bear  Valley asserts  that the  station's  affairs 
were ``thrown into disarray''  and that its ``principals  stepped 
in to  save  the station  from  imminent demise.''   Bear  Valley 
requests a reduction in the proposed forfeiture. 

                      III.      DISCUSSION

     8.  Section 310(d) of the Act provides in pertinent part: 

     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.''

     9.  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).

     10.  We find, and Bear Valley essentially acknowledges, that 
it 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 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.  Thus, upon implementation of 
the agreement, Mr.  Foster ceased having  any meaningful role  in 
the station's operation.   Thus, well  before the  filing of  the 
assignment application  -  an  application that  has  yet  to  be 
granted - Mr.  Foster had ceded  control of the  station to  Bear 
Valley.   Moreover,  it   is  beyond  dispute   that,  upon   his 
incarceration, Mr. Foster ceased having any role whatsoever.   In 
view of  the foregoing,  we conclude  that Bear  Valley  acquired 
ultimate control over station operations without prior Commission 

     11.  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 

     12.  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).  That  base amount  may be adjusted  downward if  the 
violation is deemed ``minor'' in nature.  See section  1.80(b)(4) 
and accompanying note, 47 C.F.R.  1.80(b)(4).  After considering 
all of the circumstances,  we believe that  the violation is  not 
minor and that the proposed  forfeiture should be imposed.   Bear 
Valley acquired  control  well  before Mr.  Foster's  arrest  and 
incarceration and  well  before  the  filing  of  its  assignment 
application.  Bear Valley's assertion that  it acted in order  to 
``save the station  from imminent demise''  does not justify  its 
actions nor  mitigate the  significance  of its  violation.   See 
Kenneth Paul  Harris,  Sr.,  DA  00-2741 at    6  (Enf.  Bureau, 
released December 6, 2000).  

                      IV.  ORDERING CLAUSES

     13. Accordingly,  IT IS  ORDERED THAT,  pursuant to  section 
503(b) of the Act, 47 U.S.C.  503 and section 1.80(f)(4) of  the 
Commission's  rules,  47   C.F.R.     1.80(f)(4),  Bear   Valley 
Broadcasting, Inc. is LIABLE  FOR A FORFEITURE  in the amount  of 
eight thousand  dollars  ($8,000) for  willfully  and  repeatedly 
violating section  310(d) of  the Act,  47 U.S.C.   310(d),  and 
section  73.3540(a)  of  the  Commission's  rules,  47  C.F.R.   

     14.  Payment of the forfeiture  shall be made in the  manner 
provided for in section 1.80 of the Commission's rules, 47 C.F.R. 
 1.80,  within thirty  days of  the release  of this  Forfeiture 
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, 47 U.S.C.  
504.  Bear Valley  Broadcasting, Inc. may  pay the forfeiture  by 
mailing a  check or  money order,  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.  A request for payment of the 
full amount of  this Forfeiture Order  under an installment  plan 
should be sent to: Chief, Credit and Debt Management Center,  445 
12th Street, S.W., Washington, D.C. 20554.4  

     15.  IT IS FURTHER ORDERED THAT a copy of this Forfeiture 
Order shall be sent by Certified Mail Return Receipt Requested to 
Bear Valley Broadcasting, Inc., in care of Howard J. Barr, Esq., 
Pepper & Corazzini, LLP, 1776 K Street, N.W., Suite 200, 
Washington, D.C. 20006-2334.  


          David H. Solomon
          Chief, Enforcement Bureau

1  47 U.S.C.  310(d); 47 C.F.R.  73.3540(a).

2  Bear Valley Broadcasting, Inc., Notice of Apparent Liability 
for Forfeiture, DA 00-2359 (Enf. Bureau, released October 20, 

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

4 See 47 C.F.R.  1.1914.