####  Before the 

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

KASA Radio Hogar, Inc. ) File No. EB-00-SD-295

)

Licensee of Station KDAP(AM) ) NAL/Acct. No. 200132940002

)

Phoenix, Arizona )

## 

## [MEMORANDUM OPINION AND ORDER]{.underline}

**Adopted:** August 30, 2001 **Released:** September 4, 2001

By the Chief, Enforcement Bureau:

1\. In this Memorandum Opinion and Order, we deny a Petition for
Reconsideration filed by KASA Radio Hogar, Inc. ("KASA Radio"), licensee
of radio station KDAP(AM). On June 7, 2001, the Enforcement Bureau
issued a *Forfeiture Order*[^1] assessing a \$15,000 forfeiture against
KASA Radio for willful violation of the following sections of the
Commission\'s Rules ("Rules"): 73.54(d) (failure to provide a copy of
the station\'s antenna resistance and reactance measurements during an
inspection); 73.1350(c)(1) (failure to have the proper monitoring
equipment installed at the duty operator position); 73.1590(a)(6)
(failure to conduct annual equipment performance measurements); and
73.3526(a)(2) (failure to maintain a public inspection file).[^2] In the
*Forfeiture Order*, the Bureau rejected KASA Radio's inability to pay
claim because KASA Radio submitted financial information only for
KDAP(AM), not for the licensee, KASA Radio.

2\. On July 6, 2001, KASA Radio filed a Petition for Reconsideration in
which it does not dispute the violations, but contends that the Bureau
should have considered the financial information for radio station
KDAP(AM) only. KASA Radio contends that neither the statute under which
the forfeiture was assessed, nor the Commission's Rules, require that
financial information from all of a licensee's operations be evaluated
in determining whether a proposed forfeiture should be reduced because
of a licensee's ability to pay. KASA Radio also asserts that under
precedent for determining an ability to pay, entire enterprises are
generally evaluated only where violations are common to various sections
of the enterprise. In support of this assertion, KASA Radio cites to
*Hill Country Radio, Inc*.,[^3] in which four separate Notices of
Apparent Liability were issued to Hill Country Radio for engaging in
unauthorized transfers of control of the four radio stations licensed to
it. KASA Radio contends that it was appropriate for the Mass Media
Bureau to consider the financial circumstances of Hill Country Radio in
determining whether to reduce a forfeiture based on inability to pay
because the transfer of control had occurred for the licensee, not for
any individual station.

3\. In determining an appropriate forfeiture amount, Section
503(b)(2)(D) of the Communications Act of 1934, as amended ("Act"),[^4]
requires the Commission to consider a violator\'s ability to pay. The
Commission has determined that a company\'s gross receipts are generally
the best indicator of its ability to pay a forfeiture. *PJB
Communications of Virginia, Inc.*, 7 FCC Rcd 2088, 2089 (1992). The
Commission has also concluded that it is appropriate to take into
account "*income derived from other affiliated operations*, as well as
the financial status of the station(s) in question." *Emery Telephone*,
13 FCC Rcd 23854, 23859-60 (1998), *recon. denied*, 15 FCC Rcd 7181
(1999) (emphasis added). As the Common Carrier Bureau stated in *Hinton
Telephone Company of Hinton, Oklahoma*:

> reviewing the data for consolidated operations rather than financial
> data limited to just \[one station\] accurately portrays whether a
> licensee can pay a proposed forfeiture. Our determination of a
> licensee\'s ability to pay should reflect whether the licensee in
> general is financially capable of paying a forfeiture, not whether
> financial data from a limited portion of its operations can sustain a
> forfeiture.

7 FCC Rcd 6643, 6644 (CCB 1992), *review denied*, 8 FCC Rcd 5176 (1993).
Thus, it is the Commission\'s general practice to consider the financial
condition of a licensee\'s consolidated operations, not just the
financial condition of an individual station or a limited portion of its
operations.

4\. KASA Radio\'s reliance on *Hill Country Radio, Inc.* is misplaced.
Nothing in *Hill Country Radio, Inc.* indicates that the Mass Media
Bureau would not have considered the financial condition of the
licensee\'s consolidated operations if the unauthorized transfers of
control had not involved all four of its licenses. Furthermore, in *KTBB
Radio, Inc.*, the Mass Media Bureau rejected the inability to pay claim
of a licensee cited for unauthorized broadcast of a telephone
conversation at an individual station because the licensee failed to
provide profit and loss statements for other stations under common
ownership.[^5] Therefore, Commission precedent does not support KASA
Radio\'s contention that the Commission evaluates entire enterprises
only where violations are common to various sections of the enterprise.
Consequently, we deny KASA Radio\'s Petition for Reconsideration and
reject its request for rescission or reduction of the forfeiture based
on its purported inability to pay.

####  

5\. Accordingly, **IT IS ORDERED THAT**, pursuant to Section 405 of the
Act[^6] and Section 1.106 of the Rules,[^7] the Petition for
Reconsideration of the *Forfeiture Order* in this proceeding **IS**
hereby **DENIED.**

6\. **IT IS FURTHER ORDERED** that, pursuant to Section 503(b) of the
Act[^8] and Section 1.80 of the Rules,[^9] KASA Radio Hogar, Inc. shall
pay the amount of fifteen thousand dollars (\$15,000) for the
above-stated violations within 30 days of the release date of this
Order. Payment may be made by check or money order, drawn on a U.S.
financial institution, payable to the Federal Communications Commission.
The remittance should be marked "NAL/Acct. No. 200132940002" and mailed
to the Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act.[^10] Requests for full
payment under an installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 Twelfth Street, S.W., Washington, D.C.
20554.[^11]

7\. **IT IS FURTHER ORDERED** that, a copy of this Memorandum Opinion
and Order shall be sent by Certified Mail Return Receipt Requested to
Paul Brown, Esq., counsel for KASA Radio of Hogar, Inc., at Wood, Maines
& Brown, 1827 Jefferson Place, NW, Washington, DC 20036.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ *KASA Radio Hogar, Inc.*, 16 FCC Rcd 11934 (EB 2001).

[^2]: ^?^ 47 C.F.R. §§ 73.54(d), 73.1350(c)(1), 73.1590(a)(6),
    73.3526(a)(2).

[^3]: ^?^ 14 FCC Rcd 17708 (MMB 1999).

[^4]: ^?^ 47 U.S.C. § 503(b)(2)(D).

[^5]: ^?^ 10 FCC Rcd 13046 (MMB 1995).

[^6]: ^?^ 47 U.S.C.  405.

[^7]: ^?^ 47 C.F.R. § 1.106.

[^8]: ^?^ 47 U.S.C. § 503(b).

[^9]: ^?^ 47 C.F.R. § 1.80.

[^10]: 47 U.S.C.  504(a).

[^11]: 47 C.F.R.  1.1914.