**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | *  | Facility I.D. No. 77597      |
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| **NEWMONT GOLD COMPANY**         | ** | NAL/Acct. No.                |
|                                  |    | MB-200741410166              |
| For Renewal of License for       | *  |                              |
|                                  | *) | FRN: 0003478674              |
| FM Translator Station K253AC     | ** |                              |
|                                  |    | File No. BRFT-20050824ADK    |
| Eureka, Nevada                   | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: January 31, 2007 Released: February 15, 2007**

By the Chief, Media Bureau:

**I. INTRODUCTION**

1.  The Commission has before it the captioned application of Newmont
    Gold Company (the "Licensee"), for renewal of its license for FM
    Translator Station K253AC, Eureka, Nevada (the "Station"). In this
    *Memorandum Opinion and Order and Notice of Apparent Liability for
    Forfeiture ("NAL")* issued pursuant to Sections 309(k) and 503(b) of
    the Communications Act of 1934, as amended (the "Act"), and Section
    1.80 of the Commission's Rules (the "Rules"),[^1] by the Chief,
    Media Bureau by authority delegated under Section 0.283 of the
    Rules,[^2] we find that the Licensee apparently willfully violated
    Section 73.3539 of the Rules[^3] by failing to timely file a license
    renewal application for the Station. Based upon our review of the
    facts and circumstances before us, we conclude that the Licensee is
    apparently liable for a monetary forfeiture in the amount of one
    thousand five hundred dollars (\$1,500), and we grant the captioned
    K253AC renewal application.

    **II. BACKGROUND**

2.  Section 73.3539(a) of the Rules requires that applications for
    renewal of license for broadcast stations must be filed "not later
    than the first day of the fourth full calendar month prior to the
    expiration date of the license sought to be renewed."[^4] An
    application for renewal of the Station's license should have been
    filed by June 1, 2005, four months prior to the Station's October 1,
    2005, license expiration date,[^5] but was not. In fact, the
    Licensee did not file the renewal application until August 24, 2005.
    The Licensee provides no explanation for the untimely filing of the
    renewal application.

    **III. DISCUSSION**

3.  *Proposed Forfeiture.* In this case, the record indicates that the
    Licensee has failed to timely file a license renewal application for
    the Station, as required by Section 73.3539(a) of the Rules.
    Moreover, as noted above, the Licensee did not provide an
    explanation for the late filing.

4.  This *NAL* is issued pursuant to Section 503(b)(1)(B) of the Act.
    Under that provision, 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 forfeiture
    penalty.[^6] 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.[^7] 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,[^8] and the Commission has so interpreted the term in the
    Section 503(b) context.[^9] Section 312(f)(2) of the Act provides
    that "\[t\]he term 'repeated,' when used with reference to the
    commission or omission of any act, means the commission or omission
    of such act more than once or, if such commission or omission is
    continuous, for more than one day."[^10]

5.  The Commission\'s *Forfeiture Policy Statement* and Section
    1.80(b)(4) of the Rules establish a base forfeiture amount of
    \$3,000 for the failure to file a required form.[^11] In determining
    the appropriate forfeiture amount, we may adjust the base amount
    upward or downward by considering the factors enumerated in Section
    503(b)(2)(D) of the Act, including \"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.\"[^12]

6.  In this case, the Licensee failed to timely file the K253AC renewal
    application. Taking into consideration this fact, the fact that the
    renewal application was filed prior to expiration of the Station's
    license, and all of the factors required by Section 503(b)(2)(D) of
    the Act[^13] and the *Forfeiture Policy Statement*, we will reduce
    the forfeiture from the base amount to \$1,500 for the late filing.

7.  *License Renewal Application.* In evaluating an application for
    license renewal, the Commission's decision is governed by Section
    309(k) of the Act.[^14] That section provides that if, upon
    consideration of the application and pleadings, we find that (1) the
    station has served the public interest, convenience, and
    necessity; (2) there have been no serious violations of the Act or
    the Rules; and (3) there have been no other violations which, taken
    together, constitute a pattern of abuse, we are to grant the renewal
    application.[^15] If, however, the licensee fails to meet that
    standard, the Commission may deny the application -- after notice
    and opportunity for a hearing under Section 309(e) of the Act -- or
    grant the application "on terms and conditions that are appropriate,
    including a renewal for a term less than the maximum otherwise
    permitted."[^16]

8.  We find that the Licensee's apparent violation of Section 73.3539 of
    the Rules does not constitute a "serious violation" warranting
    designation for evidentiary hearing. Moreover, we find no evidence
    of violations that, when considered together, evidence a pattern of
    abuse.[^17] Further, we find that FM Translator Station K253AC
    served the public interest, convenience, and necessity during the
    subject license term. We will therefore grant the license renewal
    application below.

    **IV. ORDERING CLAUSES**

9.  Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Section 1.80 of the
    Commission's Rules, that Newmont Gold Company is hereby NOTIFIED of
    its APPARENT LIABILITY FOR FORFEITURE in the amount of one thousand
    five hundred dollars (\$1,500) for its apparent willful violation of
    Section 73.3539 of the Commission's Rules.

10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    Rules, that, within thirty (30) days of the release date of this
    *NAL,* Newmont Gold Company SHALL PAY the full amount of the
    proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

11. Payment of the proposed forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Acct. No. and FRN No.
    referenced above. Payment by check or money order may be mailed to
    Federal Communications Commission, at P.O. Box 358340, Pittsburgh,
    Pennsylvania 15251-8340. Payment by overnight mail may be sent to
    Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
    Pennsylvania 15251. Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account number
    911-6106.

12. The response, if any, must be mailed to Office of the Secretary,
    Federal Communications Commission, 445 12^th^ Street, S.W.,
    Washington D.C. 20554, ATTN: Peter H. Doyle, Chief, Audio Division,
    Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.

13. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the respondent
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices ("GAAP"); or (3) some other reliable
    and objective documentation that accurately reflects the
    respondent's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

14. Requests for full payment of the forfeiture proposed in this *NAL*
    under the installment plan should be sent to: Associate Managing
    Director-Financial Operations, 445 12th Street, S.W., Room 1-A625,
    Washington, D.C. 20554.[^18]

15. IT IS FURTHER ORDERED, pursuant to Section 309(k) of the
    Communications Act of 1934, as amended, that the license renewal
    application of Newmont Gold Company for Station K253AC, Eureka,
    Nevada (File No. BRFT-20050824ADK).

16. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
    First Class and Certified Mail, Return Receipt Requested, to Newmont
    Gold Company, P.O. Box 669, Carlin, Nevada 89822-0669 and to its
    contact representative, Doug Thompson, Cara Enterprises, Inc., Post
    Office Box 17503, Salt Lake City, Utah 84117-0503.

    FEDERAL COMMUNICATIONS COMMISSION

    Monica Shah Desai Chief, Media Bureau

[^1]: 47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80.

[^2]: *See* 47 C.F.R. § 0.283.

[^3]: *See* 47 C.F.R. § 73.3539.

[^4]: 47 C.F.R. § 73.3539(a).

[^5]: *See* 47 C.F.R. §§ 73.1020, 73.3539(a).

[^6]: 47 U.S.C. § 503(b)(1)(B). See also 47 C.F.R. § 1.80(a)(1).

[^7]: 47 U.S.C. § 312(f)(1).

[^8]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^9]: *See Southern California Broadcasting Co.,* Memorandum Opinion and
    Order, 6 FCC Rcd 4387, 4388 (1991).

[^10]: 47 U.S.C. § 312(f)(2).

[^11]: *See Forfeiture Policy Statement and Amendment of Section 1.80(b)
    of the Rules to Incorporate the Forfeiture Guidelines,* Report and
    Order*,* 12 FCC Rcd 17087, 17113-15 (1997) (\"*Forfeiture Policy
    Statement*\"), *recon. denied,* 15 FCC Rcd 303 (1999); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section I.

[^12]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement*,
    12 FCC Rcd at 17100; 47 C.F.R. § 1.80(b)(4).

[^13]: 47 U.S.C. § 503(b)(2)(D).

[^14]: 47 U.S.C. § 309(k).

[^15]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read
    as described by Section 204(a) of the Telecommunications Act of
    1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). *See Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures), Order,* 11 FCC Rcd 6363
    (1996).

[^16]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^17]: For example, we do not find here that the Licensee\'s operation
    of the Station \"was conducted in an exceedingly careless, inept and
    negligent manner and that the licensee is either incapable of
    correcting or unwilling to correct the operating deficiencies.\"
    *See Heart of the Black Hills Stations*, Decision, 32 FCC 2d 196,
    198 (1971). Nor do we find on the record here that \"the number,
    nature and extent\" of the violations indicate that \"the licensee
    cannot be relied upon to operate \[the Station\] in the future in
    accordance with the requirements of its licenses and the
    Commission\'s Rules.\" *Heart of the Black Hills Stations*, 32 FCC
    2d at 200. *See also Center for Study and Application of Black
    Economic Development*, Hearing Designation Order, 6 FCC Rcd 4622
    (1991), *Calvary Educational Broadcasting Network, Inc*., Hearing
    Designation Order, 7 FCC Rcd 4037 (1992).

[^18]: *See* 47 C.F.R. § 1.1914.