Click here for Microsoft Word Version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from
WordPerfect or Word to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).

*****************************************************************



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


In the Matter of                 )
                                )
DONALD W.  KAMINSKI, JR.         )
                                )    EB-00-IH-0348
Licensee  of  Station  KHWK(FM), )    NAL Acct. No.  200132080012
Tonopah, NV                      )
                                )
                                )
                                )


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  May 9, 2001                Released:  May 14, 2001

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

In this Notice  of Apparent  Liability for  Forfeiture (NAL),  we 
find that Donald  W. Kaminski,  Jr. (Mr.  Kaminski), licensee  of 
KHWK(FM), Tonopah, Nevada, apparently willfully violated  section 
73.1015 of the  Commission's rules1  by failing to  respond to  a 
written  Commission   inquiry.   Based   upon   the   facts   and 
circumstances surrounding this apparent  violation, we find  that 
Mr. Kaminski is apparently liable for a forfeiture in the  amount 
of  $4,000.  


                      II.       BACKGROUND

On November 9,  2000, we sent  a letter of  inquiry (LOI) to  Mr. 
Kaminski concerning the ownership and operation of FM  translator 
K240BS, Pahrump, NV and KHWK(FM),  Tonopah, NV. Our LOI was  sent 
certified mail,  return  receipt requested.   However,  the  U.S. 
Postal Service certified  mail receipt  was not  returned to  the 
Commission.  

On January  3, 2001,  we sent  Mr. Kaminski  another letter,  and 
enclosed a copy of the earlier  LOI.  Our January 3, 2001  letter 
reminded Mr. Kaminski  that section 73.1015  of the  Commission's 
rules requires him to respond  to our inquiry.  We also  provided 
Mr. Kaminski with the name,  telephone number and e-mail  address 
of the staff  attorney assigned  to this matter.   Our letter  of 
January 3,  2001 also  was sent  certified mail,  return  receipt 
requested.   The  U.S.  Postal  Service  certified  mail  receipt 
reflects that Mr.  Kaminski received  this letter,  but does  not 
indicate the date  of delivery.  Nevertheless,  Mr. Kaminski  did 
not respond to our  inquiry following receipt  of the January  3, 
2001 letter.



                       III.    DISCUSSION

Section 73.1015 of the Commission's rules provides:

          The Commission or its representatives may, in  writing, 
          require from  any  applicant,  permittee,  or  licensee 
          written statements of fact relevant to a  determination 
          whether an application should be granted or denied,  or 
          to a determination whether a license should be revoked, 
          or to any other matter  within the jurisdiction of  the 
          Commission, or, in  the case of  a proceeding to  amend 
          the FM or Television Table of Allotments, require  from 
          any person filing  an expression  of interest,  written 
          statements  of   fact   relevant  to   that   allotment 
          proceeding.  No  applicant,  permittee,  licensee,   or 
          person who files an expression of interest shall in any 
          response to Commission correspondence or inquiry or  in 
          any application, pleading, report or any other  written 
          statement  submitted  to   the  Commission,  make   any 
          misrepresentation or willful material omission  bearing 
          on  any   matter  within   the  jurisdiction   of   the 
          Commission.  (note omitted).

Mr. Kaminski apparently has refused to respond in writing to  our 
inquiry.  Therefore,  it  appears  that  Mr.  Kaminski's  refusal 
constitutes  a  willful  violation  of  section  73.1015  of  the 
Commission's rules.   Section 503(b)(1)(B)  of the  Act  provides 
that any person who willfully or repeatedly fails to comply  with 
the  Act  or  the  Commission's  rules  shall  be  liable  for  a 
forfeiture penalty.2  The  Commission has  ruled that  an act  or 
omission is ``willful'' if  the violator knew  it was taking  the 
action in question whether or not there is any intent to  violate 
the rule.3   Under  these  circumstances, we  conclude  that  Mr. 
Kaminski's apparent  violation of  section 73.1015  warrants  the 
imposition of a monetary forfeiture.     

In assessing a forfeiture, section  503(b)(2)(D) of the Act4  and 
section 1.80(b)(4)5  of  the  Commission's rules  require  us  to 
consider the  nature, circumstances,  extent and  gravity of  the 
violation, and,  with  respect to  the  violator, the  degree  of 
culpability, any history of prior  offenses, ability to pay,  and 
other such  matters as  justice  may require.   The  Commission's 
Forfeiture Guidelines  establish  a  base amount  of  $4,000  for 
failure to respond to Commission communications.6  Based upon the 
information before us, and taking into consideration the  factors 
expressed in  section 503(b)(2)(D)  of the  Act, we  find that  a 
forfeiture in the amount of $4,000 is appropriate. 

Our action issuing  this NAL does  not resolve serious  questions 
concerning ownership and operation of FM translator K240BS.   Mr. 
Kaminski's failure to comply with  section 73.1015 in the  future 
would constitute a separate violation of the Commission's  rules.  
We  warn  Mr.  Kaminski  that  failure  to  respond  to   further 
Commission inquiries  in this  matter could  form the  basis  for 
additional notices of  apparent liability  and may  result in  an 
order to  show  cause why  FM  translator K240BS  should  not  be 
required to cease and desist operation.



                    IV.     ORDERING CLAUSES

Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C.   503(b), 
and 47 C.F.R.  1.80, Donald W. Kaminski, Jr. is hereby  NOTIFIED 
of his APPARENT LIABILITY FOR A FORFEITURE in the amount of  four 
thousand dollars ($4,000)  for violating section  73.1015 of  the 
Commission's rules.

IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R.  1.80,  within 
thirty days  of  this NOTICE  OF  APPARENT LIABILITY,  Donald  W. 
Kaminski,  Jr.  SHALL  PAY  the  full  amount  of  the   proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

Payment of  the forfeiture  may be  made 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.

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.

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.

Requests for  payment  of  the  full amount  of  this  Notice  of 
Apparent Liability under an installment  plan should be sent  to: 
Chief, Revenue and Receivables Operations Group, 445 12th Street, 
S.W., Washington, D.C. 20554.  See 47 C.F.R.  1.1914.

IT IS FURTHER  ORDERED that  a copy  of this  Notice of  Apparent 
Liability for Forfeiture SHALL BE SENT by Certified Mail-  Return 
Receipt  Requested,  to  Mr.  Donald  W.  Kaminski,  licensee  of 
KHWK(FM), at the  licensee's address  of record,  P.O. Box  1669, 
Tonopah, Nevada  89049.  


                         FEDERAL COMMUNICATIONS COMMISSION
                    

     

                         David H. Solomon
                         Chief, Enforcement Bureau




_________________________

1  47 C.F.R.  73.1015.

2   47 U.S.C.  503(b)(1)(B).  See also 47 C.F.R.  1.80(a)(2).  

3   Southern  California Broadcasting  Company, 6  FCC Rcd  4387 
(1991).

4  47 U.S.C.  503(b)(2)(D).

5  47 C.F.R.   1.80(b)(4).  

6   The Commission's Forfeiture  Policy Statement and  Amendment 
of Section  1.80  of the  Rules  to Incorporate  the  Forfeiture 
Guidelines, 12 FCC Rcd 17087  (1997), recon. denied, 15 FCC  Rcd 
303 (1999)(``Forfeiture Guidelines').