**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB-00-IH-0348       |
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| DONALD W. KAMINSKI, JR.          | ** | NAL/ Acct. No. 200132080012  |
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| Licensee of Station KHWK(FM),    | *  | FRN 0010014504               |
| Tonopah, NV                      | *) |                              |
|                                  | ** | Facility ID No. 17239        |
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**FORFEITURE ORDER**

**Adopted:** December 15, 2003 **Released:** December 17, 2003

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  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**

2.  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**

3.  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).

4.  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.

5.  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.

6.  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**

7.  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.

8.  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).

9.  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); s*ee 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, 97^th^ 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.