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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').