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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AM Broadcast Station KTNC ) NAL/Acct. No.
915KC0001
And C.R. Communications, Inc. ) Case No.
99KC194
Falls City, Nebraska 68355 )
MEMORANDUM OPINION AND ORDER
Adopted: September 26, 2000 Released:
September 28, 2000
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''),
we deny the Petition for Reconsideration filed on January
19, 2000 by C.R. Communications, Inc. (``CRC'').1 CRC seeks
reconsideration of a Forfeiture Order2 in which the Chief,
Enforcement Bureau, found CRC liable for a monetary
forfeiture in the amount of $8,000 for willfully violating
Section 11.35(a) of the Commission's Rules (``Rules'').3
The forfeiture was assessed for CRC's failure to ensure that
its Emergency Alert System (``EAS'') equipment was installed
and functioning when the station was in operation, and to
note in the station log the reasons EAS tests were not
received for a 14-month period. CRC paid the forfeiture
nine days after the Forfeiture Order was released, but now
seeks a reduction and/or refund of the forfeiture. Because
CRC voluntarily paid the forfeiture, it is not entitled to a
refund.4 Accordingly, we deny its petition for
reconsideration.
2. CRC claims that it remitted the forfeiture payment
because it was ``[u]nder threat of civil action by the U.S.
Attorney for failure to respond in 30 days.'' As the
Commission has stated on several occasions,5 the subject of
an NAL need not pay a forfeiture until the United States
seeks recovery and a final judgment is entered by a district
court after a trial de novo.6 Section 504(c) of the Act
expressly prohibits the Commission from taking prejudicial
action based on the issuance of an NAL unless the forfeiture
has been paid or a court orders payment.7 Therefore, CRC
did not have to pay the forfeiture until a district court
ruled on the matter after a trial de novo, and, as a matter
of law, could not have been penalized for doing so. See
Pleasant Broadcasting v. FCC, 564 F.2d 496, 498 (D.C. Cir.
1977) (``forfeitures imposed by the Commission are
recoverable, absent voluntary payment, only in civil
proceedings brought by United States Attorneys in the
district court.''). We find that CRC voluntarily paid the
forfeiture in full on December 30, 1999.
3. As the Commission stated in Associated
Broadcasters, ``money that is paid voluntarily under a
misapprehension of the legal rights and obligations of the
person paying, but in the absence of fraud, duress, or
mistake of fact, is not recoverable.''8 CRC's petition makes
no claim of fraud or mistake of fact that would allow CRC to
recover its payment. Furthermore, CRC's payment was not made
under duress because it could have simply withheld payment
and filed for reconsideration of the Forfeiture Order within
30 days of its release date, pursuant to Section 504(a) of
the Act and Sections 1.104 and 1.106 of the Rules.9 CRC is
thus not entitled to a refund of its forfeiture payment.
Moreover, CRC has not alleged facts that would demonstrate
that it would have been entitled to a reduction of its
forfeiture amount had it not voluntarily paid the
forfeiture.
4. Accordingly, IT IS ORDERED that, pursuant to
Section 1.106 of the Rules, CRC's Petition for
Reconsideration IS DENIED.
5. IT IS FURTHER ORDERED that a copy of this Order
shall by sent by certified mail, return receipt requested,
to C.R. Communications, Inc., P.O. Box 589, Falls City,
Nebraska 68355.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 CRC captions its pleading as a petition for
reconsideration of the Forfeiture Order, but refers in the
body of the document to Section 1.115 of the Rules, which
governs applications for review by the Commission. Section
1.104(b) of the Rules provides the choice of filing either a
petition for reconsideration or an application for review of
a final action, but not both. 47 C.F.R. § 1.104(b). If we
were to treat the pleading as an Application for Review,
CRC's arguments would be procedurally barred by Section
1.115(c) of the Rules, because they raise questions of fact
upon which the Bureau has been afforded no opportunity to
pass. See 47 C.F.R. 1.115(c); Courtesy Communications,
Inc., 14 FCC Rcd 4198, 4202-4203 (1999); Kevin Johnson, 9
FCC Rcd 2471, 2473 (1993); Sherry Rullman, 8 FCC Rcd 4012
(1993). We will therefore treat this filing as a Petition
for Reconsideration pursuant to Section 1.106 of the Rules,
47 C.F.R. § 1.106.
2 C.R. Communications, Inc., DA 99-2960, 1999 WL
1216133 (Enf. Bur., 1999).
3 47 C.F.R. § 11.35(a).
4 Where a party voluntarily pays a forfeiture, it is
not entitled to a refund, even if the basis upon which the
forfeiture was assessed is later found to be invalid. See
Eagle Radio, Inc., 12 FCC Rcd 5105 (1997).
5 See, e.g., Associated Broadcasters, Inc., 12 FCC Rcd
3324 (1997); Pikes Peak Broadcasting Company, 14 FCC Rcd
19011 (1999); Tri-Valley Broadcasters, 14 FCC Rcd 19307
(1999).
6 47 U.S.C. § 504(a).
7 Section 504(c) provides: ``[i]n any case where the
Commission issues a notice of apparent liability looking
toward the imposition of a forfeiture under this Act, that
fact shall not be used, in any other proceeding before the
Commission, to the prejudice of the person to whom such
notice was issued, unless (i) the forfeiture has been paid,
or (ii) a court of competent jurisdiction has ordered
payment of such forfeiture, and such order has become
final.'' 47 U.S.C. § 504(c).
8 Associated Broadcasters, 12 FCC Rcd at 3327, citing
Putnam Tool Company v. United States, 147 F.Supp. 746, 748
(1957), cert. denied, 355 U.S. 825 (1957).
9 47 U.S.C. § 504(a); 47 C.F.R. §§ 1.104 and 1.106.
See also Associated Broadcasters, 12 FCC Rcd at 3327-3328.