Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
DONALD W. KAMINSKI, JR. ) File No. EB-00-IH-0348
) NAL/ Acct. No. 200132080012
Licensee of Station KHWK(FM), ) FRN 0010014504
Tonopah, NV ) Facility ID No. 17239
)
)
)
FORFEITURE ORDER
Adopted: December 15, 2003 Released: December
17, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
In this Forfeiture Order, issued pursuant to section 503(b)
of the Communications Act of 1934, as amended (the ``Act''),
and section 1.80 of the Commission's rules,1 we impose a
monetary forfeiture of Four Thousand Dollars ($4,000.00) on
Donald W. Kaminski, Jr., licensee of Station KHWK(FM),
Tonopah, Nevada, for his willful failure to respond to a
written Commission inquiry in violation of section 73.1015
of the Commission's rules.2
II. BACKGROUND
The Commission, by the Chief, Enforcement Bureau, acting
pursuant to delegated authority, issued a Notice of Apparent
Liability for Forfeiture (``NAL'') proposing a monetary
forfeiture based upon Mr. Kaminski's failure to respond to
our inquiry concerning the ownership and operation of
Station KHWK(FM), Tonopah, Nevada and a related FM
translator, K240BS.3 The NAL was sent by certified mail to
Mr. Kaminski, and the return receipt reflects that he
received it.4 However, Mr. Kaminski did not file a written
statement in response to the NAL.5
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).
As detailed in the NAL, Mr. Kaminski failed to respond in
writing to our inquiry. In addition, Mr. Kaminski did not
file a written response to the NAL to suggest otherwise.
Therefore, we conclude that imposition of a forfeiture is
warranted.
Under section 503(b)(1) of the Act, any person who is
determined by the Commission to have willfully or repeatedly
failed to comply with any provision of the Act or any rule,
regulation, or order issued by the Commission shall be
liable to the United States for a monetary forfeiture
penalty.6 In order to impose such a forfeiture penalty, the
Commission must issue a notice of apparent liability, the
notice must be received, and the person against whom the
notice has been issued must have an opportunity to show, in
writing, why no such forfeiture penalty should be imposed.7
The Commission will then issue a forfeiture if it finds by a
preponderance of the evidence that the person has violated
the Act or a Commission rule.8 As set forth above, we
conclude under this standard that Mr. Kaminski is liable for
a forfeiture for the willful violation of section 73.1015
of the Commission's rules.
The Commission's Forfeiture Policy Statement sets a base
forfeiture amount of $4,000.00 for failure to respond to
Commission communications.9 The Forfeiture Policy Statement
also specifies that the Commission shall adjust a forfeiture
based upon consideration of the factors enumerated in
section 503(b)(2)(D) of the Act, 47 U.S.C. § 503(b)(2)(D),
such as ``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 such other matters as justice may require.''10 In
this case, taking all of these factors into consideration,
we find that the NAL properly proposed that the base
forfeiture amount is the appropriate sanction for the
violation described above. Consequently, Mr. Kaminski is
liable for a forfeiture of Four Thousand Dollars
($4,000.00).
IV. ORDERING CLAUSES
Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C. §
503(b), and 47 C.F.R. §§ 0.111, 0.311 and 1.80, Donald W.
Kaminski, Jr. FORFEIT to the United States the sum of Four
Thousand Dollars ($4,000.00) for willfully violating 47
C.F.R. § 73.1015.
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, within thirty
(30) days of the release of this Forfeiture Order. See 47
C.F.R. § 1.80(h). The payment MUST INCLUDE the FCC
Registration Number (FRN) (0010014504), and also should note
the NAL/Acct. No. (200132080012). If the forfeiture is not
paid within that time, the case may be referred to the
Department of Justice for collection pursuant to 47 U.S.C. §
504(a).
IT IS FURTHER ORDERED that a copy of this Forfeiture Order
SHALL BE SENT, by Certified Mail Return Receipt Requested,
to Mr. Donald W. Kaminski, Jr. at his address of record,
P.O. Box 1669, Tonopah, Nevada 89049.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 503(b) (2002); 47 C.F.R. § 1.80 (2002).
2 47 C.F.R. § 73.1015 (2002).
3 Donald W. Kaminski, Jr., Notice of Apparent Liability
for Monetary Forfeiture, 16 FCC Rcd 10707 (EB 2001).
4 The NAL was sent to Mr. Kaminski by Certified Mail
Return Receipt Requested to the address of record for
Station KHWK(FM). The United States Postal Service
certified mail return receipt does not indicate the date of
delivery but bears his signature.
5 See Donald W. Kaminski, Jr., 16 FCC Rcd at 10709, ¶ 8.
6 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see
also 47 U.S.C. § 503(b)(1)(D) (forfeitures for violation of
14 U.S.C. § 1464). Section 312(f)(1) of the Act defines
willful as ``the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to
violate'' the law. 47 U.S.C. § 312(f)(1). The legislative
history to section 312(f)(1) of the Act clarifies that this
definition of willful applies to both sections 312 and
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d
Sess. 51 (1982), and the Commission has so interpreted the
term in the section 503(b) context. See, e.g., Application
for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991)
(``Southern California Broadcasting Co.''). The Commission
may also assess a forfeiture for violations that are merely
repeated, and not willful. See, e.g., Callais Cablevision,
Inc., Grand Isle, Louisiana, Notice of Apparent Liability
for Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage).
``Repeated'' merely means that the act was committed or
omitted more than once, or lasts more than one day.
Southern California Broadcasting Co., 6 FCC Rcd at 4388, ¶
5; Callais Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
7 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
8 See, e.g., SBC Communications, Inc., Apparent Liability
for Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶
4 (2002) (forfeiture paid).
9 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997),
recon. denied 15 FCC Rcd 303 (1999) (``Forfeiture Policy
Statement''); 47 C.F.R. § 1.80(b).
10 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, ¶
27.