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                         Before the
              FEDERAL COMMUNICATIONS COMMISSION
                   Washington, D.C.  20554

In the Matter of                   )
                              )
Bay Broadcasting Corporation            )    NAL Acct. No. 
915PO0001
                              )
Licensee, KHSN(AM)                 )
Coos Bay, Oregon                   )
Facility ID # 4082                 )
                              )
Former Licensee, KACW(FM)               )
North Bend, Oregon                 )
Facility ID # 5210                 )
                              )
Former Licensee, KBBR(AM)               )
North Bend, Oregon                 )
Facility ID # 5212                 )
                              )    
Former Licensee, KOOS(FM)               )
North Bend, Oregon                 )
Facility ID # 4080                 )
                              )
Former Licensee, K299AA            )
North Bend/Coos Bay, Oregon             )
Facility ID # 5211                 ) 
                              
                      FORFEITURE ORDER

     Adopted: April 26, 2000                 Released: April 
27, 2000 

By the Chief, Enforcement Bureau:

     1.  This Forfeiture Order (``Order'') imposes a 
forfeiture against Bay Broadcasting Corporation (``Bay'') in 
the amount of nineteen thousand dollars ($19,000).  We 
conclude that Bay willfully and repeatedly violated Section 
301 of the Communications Act of 1934, as amended (the 
``Act''), and Sections 73.1201, 73.1675, 73.1690 and 74.1251 
of the Commission's rules.1  The violations include: 
operation without Commission authorization of studio-
transmitter links (``STL'') for stations KHSN(AM), Coos Bay, 
and KACW(FM) and KBBR(AM), both in North Bend, all in 
Oregon; failure to broadcast required station identification 
announcements on Station KHSN(AM); use without Commission 
authorization of a long wire antenna for KHSN(AM); 
relocation without Commission authorization of the 
transmitter and transmitter line for KHSN(AM) and of FM 
translator station K299AA.   




                         BACKGROUND

     2.  Following receipt of a complaint from Robert King, 
a former employee of Bay, the resident agent of the 
Commission's Portland Field Office conducted an inspection 
of the captioned stations.  The inspection disclosed 
numerous violations of the rules, including: those noted 
above; failure to make appropriate entries in station 
records concerning EAS required weekly and monthly tests (47 
C.F.R.  11.61(b)); reliance on an inoperable telephone 
dial-up remote control for KHSN(AM) (47 C.F.R.  
73.1350(c)); and failure to post antenna registration 
numbers at the towers for KACW(FM) and KBBR(AM) (47 C.F.R.  
17.4).  Following issuance of a Notice of Violation 
(``NOV'') on April 21, 1999, and review of the licensee's 
response, the Portland Field Office, on August 24, 1999, 
issued a Notice of Apparent Liability (``NAL'') to Bay, 
which proposed a forfeiture of $19,000.  The NAL cited the 
violations noted in paragraph one of this Order. 

     3.  In response to the NAL,2 Bay concedes the 
occurrence of the violations.  Nevertheless, Bay requests a 
substantial reduction in the forfeiture.  Bay believes that 
its prior record, small business status, presence in a small 
market, and inability to pay the proposed forfeiture without 
substantial hardship warrant reduction of the forfeiture. 

                         DISCUSSION

     4.  Section 503(b)(2)(D) of the Act directs us to 
consider two distinct matters in determining the appropriate 
amount of a forfeiture.3  First, as to the violations, we 
must take into account their nature, circumstances, extent, 
and gravity.  Second, with respect to the violator, we must 
consider the degree of culpability, history of prior 
offenses, ability to pay, and such other matters as justice 
may require. 

     5.  The record before us reflects that Bay relocated 
two transmitters and operated three others without 
Commission authorization.  The unauthorized moves and/or 
operations began at various times between July 1997 and 
August 1998.  Bay also violated the terms of its license for 
KHSN(AM) by using an unauthorized antenna beginning in July 
1997.  Bay acknowledges that the violations occurred largely 
because it sought to save money by taking the actions noted.  
Bay claims it was going to seek Commission approval at a 
later undetermined time; however, it did not do so until 
after it received the NOV.  Moreover, even subsequent to the 
issuance of the NOV, Bay continued to operate all of the 
referenced transmitters, and, in the case of KHSN(AM), used 
the unauthorized antenna up to the dates when either 
Commission authorization occurred or, in the case of Station 
K299AA, the violation was corrected.4  As for the failure to 
broadcast station identification announcements on KHSN(AM) 
over a two-day period, Bay indicates that the violations 
occurred because it did not adequately monitor a 
malfunctioning software computer system that was supposed to 
insert commercials as well as station identifications.  

     6.  After considering the above, we conclude that all 
of the violations were willful and repeated.  In this 
regard, the term ``willful'' means that the violator knew 
that it was taking the action in question, irrespective of 
any intent to violate the Commission's rules,5 while 
``repeated'' means more than once.6  In addition, we find 
that the unauthorized moves and use of the unauthorized 
antenna were not only continuous but also intentional in 
that those violations continued even after Bay knew that its 
operations were at variance with the Act, the Commission's 
rules, and its licenses.7  In this regard, it bears 
repeating that a licensee cannot legally engage in the 
activity that it wishes the Commission to authorize until it 
receives approval to do so.8   

     7.  In mitigation, we note that, prior to the 
violations cited in the NAL, Bay and its sole owner, 
Laurence Goodman, had a history of overall compliance, 
dating back to December 1989. Further, it appears that Bay's 
stations are licensed to relatively small-market 
communities, a factor that has served as a basis for 
reducing a proposed forfeiture.9  However, we believe the 
nature, circumstances, extent and gravity of the violations, 
as described above, and the culpability of Bay more than 
offset any mitigation that would be appropriate for these 
factors.  

     8.  Bay argues that additional mitigation is warranted 
in light of its status as a ``small business,'' pursuant to 
the Small Business Regulatory Enforcement Fairness Act of 
1996 (``SBREFA'').10  We disagree.  A radio broadcasting 
entity qualifies as a ``small business'' if its annual 
receipts are less than five million dollars.  13 C.F.R.  
121.201 (Major Group 48, SIC Code 4832).  Annual receipts 
for businesses more than three years old are determined by 
totaling the entity's gross income for the three most recent 
fiscal years and dividing by three.  13 C.F.R.  121.104.  
Bay's federal income tax returns for 1996-1998 demonstrate 
that it should be considered a ``small business.''  
Notwithstanding such status, however, Bay is not entitled to 
a reduction of the proposed forfeiture.  The Commission has 
previously indicated that Section 503(b) of the Act11 and 
the Commission's policies and precedent, as supplemented by 
the Forfeiture Policy Statement, comply with SBREFA.12  We find 
no basis for reduction of the forfeiture based on these 
policies and precedents.  The discovery of Bay's violations 
was unrelated to its participation in a compliance 
assistance or audit program, and Bay's subsequent actions do 
not warrant a conclusion that Bay undertook good faith 
efforts to comply with the law.  In this regard, Bay 
continued to operate its unauthorized facilities during the 
pendency of its applications for licenses and its STA 
request.  Considering such operations and the circumstances 
that led Bay to violate the Act and rules in the first 
instance (see para. 5, supra), we conclude that its 
violations were willful, which militates against reduction 
or cancellation of the proposed forfeiture.13  See 
Forfeiture Policy Statement, supra note 3, 12 FCC Rcd at 
17109.  Also, as discussed infra, we conclude that Bay has 
the ability to pay the proposed forfeiture.  Accordingly, a 
reduction of the forfeiture because of Bay's status as a 
small business is not warranted. 

     9.  Finally, Bay contends that it is unable to pay a 
$19,000 forfeiture, notwithstanding its sale of KACW(FM), 
KBBR(AM), KOOS(FM) and K299AA, and the impending sale of 
KHSN(AM).  Again, we disagree.  Our analysis of Bay's 
financial condition leads us to conclude that, even prior to 
the sale of KHSN(AM), Bay has the wherewithal to pay the 
proposed forfeiture.  In this regard, Commission records 
reflect that the sale of Bay's stations, except KHSN(AM), 
was consummated on September 24, 1999.  According to Bay, it 
received $475,000 in cash, which was reduced immediately by 
payments of $382,364 to creditors.  Bay's alleged remaining 
debts, which include $150,000 in current and anticipated 
expenses and a note payable of $107,000 appear to be covered 
by cash on hand plus a note receivable of $375,000 from the 
buyer of Bay's former stations.  Moreover, once the sale of 
KHSN(AM) is consummated, Bay will have additional resources 
which appear more than sufficient to retire any existing 
debt, including the forfeiture.14  The cases cited by Bay, 
both of which involved a reduction in a proposed forfeiture, 
are inapposite.15  Unlike the licensees therein, Bay is 
capable of paying the forfeiture.  Moreover, as discussed 
above, Bay continued to operate illegally long after it had 
been explicitly advised that its operations regarding the 
STLs, KHSN(AM) and K299AA were unauthorized.   
     10.  After taking all of the foregoing into account, we 
conclude that the recommended $19,000 forfeiture should not 
be reduced.  The seriousness and duration of Bay's 
violations, when coupled with its culpability, offset Bay's 
overall history and market situation.  Further, neither 
Bay's small business status nor its asserted inability to 
pay warrants reduction or cancellation of the forfeiture.  
The forfeiture is appropriate and should be imposed.   
 
                      ORDERING CLAUSES

     11.  Accordingly, IT IS ORDERED THAT, pursuant to 
Section 503(b) of the Act16, and Sections 0.111, 0.311 and 
1.80(f)(4) of the Commission's rules17, Bay Broadcasting 
Corporation IS LIABLE FOR A MONETARY FORFEITURE in the 
amount of nineteen thousand dollars ($19,000).  The 
forfeiture is imposed for willful and repeated violations of 
Section 301 of the Act and Sections 73.1201, 73.1675, 
73.1690 and 74.1251 of the Commission's rules.18  Among 
other things, those provisions proscribe operation of 
unlicensed transmitters; certain modifications to 
transmission systems without prior Commission approval; and 
omission of station identification announcements. 

     12.  Payment of the forfeiture shall be made in the 
manner provided for in Section 1.80 of the Commission's 
rules19 within 30 days of the release of this 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.20  Payment 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 Federal Communications 
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.  
The payment should note the NAL No. referenced above 
(915PO0001).  Requests for full payment under an installment 
plan should be sent to: Chief, Credit and Debt Management 
Center, 445 12th Street, S.W., Washington, D.C. 20554.21

     13.  IT IS FURTHER ORDERED that copies of this 
Forfeiture Order shall be sent by Certified Mail Return 
Receipt Requested to Bay Broadcasting Corporation at P.O. 
Box 180, Coos Bay, Oregon 97420 and to its counsel, Howard 
J. Braun, Esq. at Rosenman & Colin, LLP, 805 15th Street, 
N.W., 9th Floor, Washington, D.C. 20005-2212.

                         FEDERAL COMMUNICATIONS COMMISSION



                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1  47 U.S.C.  301; 47 C.F.R.  73.1201, 73.1675, 73.1690, 
and 74.1251.
2  Bay submitted its response on September 30, 1999 and 
supplemented it on October 6, 1999, and March 10, 2000. 
3
  47 U.S.C.  503(b)(2)(D).  See also In the Matter of the 
Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Rules to Incorporate the Forfeiture 
Guidelines, 12 FCC Rcd 17087, 17100-01 (1997), recon. 
denied, 15 FCC Rcd 303 (1999) (``Forfeiture Policy 
Statement'').   
4
  The Commission granted Bay's STL applications for 
KACW(FM), KBBR(AM) and KHSN(AM) on June 30, 1999.  Bay 
relocated the transmitter for K299AA to its licensed site on 
July 27, 1999.  Finally, although Bay, by letter dated June 
15, 1999, sought special temporary authorization (``STA'') 
for KHSN(AM)'s relocation and long wire antenna, STA was not 
granted by the Mass Media Bureau until April 5, 2000.   
5
  See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern 
California Broadcasting Co., 6 FCC Rcd 4387 (1991). 
6
  See Hale Broadcasting Corp., 79 FCC 2d 169, 171 (1980). 
7
  See Supervalu, Inc., DA 00-235 (Enf. Bur., released 
February 9, 2000).
8
  See SouthEast Telephone Inc., DA 00-325 (Enf. Bur., 
released February 22, 2000); Andres Santos, 14 FCC Rcd 6192, 
6194-95 (Compl. & Inf. Bur. 1999). 
9
  See, e.g., Benito Rish, 10 FCC Rcd 2861, 2862 (1995), 
where the Commission reduced a forfeiture from $10,000 to 
$2,500 in large part because the station in question was a 
5,000 watt daytime-only station in a community of 425, 
thereby suggesting an inherently low station value.   
10
  Pub. L. 104-121, 110 Stat. 858 (1996). 
11
  47 U.S.C.  503(b). 
12
  See Forfeiture Policy Statement, supra note 3, 12 FCC Rcd 
at 17109.   
13
  Citing Bronco Broadcasting Co., Inc., 13 FCC Rcd 9422 
(Comp. & Inf. Bur. 1999), Bay argues that its small business 
status, standing alone, should warrant reduction of the 
forfeiture.  We disagree.  As we have discussed above, 
application of the Communications Act and Commission policy 
and precedent, which reflect SBREFA, to Bay and its actions 
does not justify or require a reduction of its forfeiture.
14
  According to records supplied by Bay, it is contracted to 
receive $150,000 for the sale of KHSN(AM), consisting of 
$25,000 cash at closing and a note receivable of $125,000.  
15
  See Eddie Bond, 13 FCC Rcd 12526 (Mass Media Bur. 1998), 
recon. granted 14 FCC Rcd 5070 (Mass Media Bur. 1999) 
(reduction of forfeiture from $15,000 to $5,000 to $1,500 
based on showing that former licensee had a ``limited, fixed 
income''); and Gureckis, Michael A., 13 FCC Rcd 21757 
(Compl. & Inf. Bur. 1998) (following review of documents 
related to its ability to pay and the results of two 
inspections subsequent to the NAL, which demonstrated that 
``considerable expenditures'' had been made to come into 
compliance, a proposed forfeiture was reduced from $8,500 to 
$1,500).  Bay also cites Morradio, Inc., 14 FCC Rcd 5201 
(Compl. & Inf. Bur. 1999) and contends that although the 
proposed forfeiture of $4,000 for an unauthorized 
transmitter move was not reduced, forfeitures for other 
apparent violations were not proposed.  Although Bay 
suggests that the Bureau's decision in Morradio not to 
propose forfeitures for all possible violations should be 
followed here, we note that the NAL issued to Bay did not 
include all of the violations uncovered during the 
inspection and referenced in the NOV.  Consequently, we 
perceive no reason to reduce Bay's forfeiture because of 
Morradio. 
16
  47 U.S.C.  503(b).
17
  47 C.F.R.  0.111, 0.311, 1.80(f)(4).
18
  47 U.S.C.  301; 47 C.F.R.  73.1201, 73.1675, 73.1690, 
and 74.1251.
19
  47 C.F.R.  1.80.
20
  47 U.S.C.  504(a).
21
  See 47 C.F.R.  1.1914.