******************************************************** 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, if available. ***************************************************************** 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.