**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+--------------------------------+
| In the Matter of                | ) | File Number EB-06-SD-108       |
|                                 |   |                                |
| CC Licenses, LLC                | ) | NAL/Acct. No 200632940007      |
|                                 |   |                                |
| Licensee of KXEW(AM)            | ) | FRN: 0001587971                |
|                                 |   |                                |
| South Tucson, Arizona           | ) |                                |
|                                 |   |                                |
| Facility ID No. 8144            | ) |                                |
|                                 |   |                                |
|                                 | ) |                                |
+---------------------------------+---+--------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: September 8, 2006

By the District Director, San Diego District Office, Western Region,
Enforcement Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that CC Licenses, LLC ("CC Licenses "), licensee of station
    KXEW(AM), South Tucson, Arizona, apparently willfully and repeatedly
    violated Section 301 of the Communications Act of 1934, as amended
    ("Act"),[^1] by operating an unlicensed Aural Broadcast Studio to
    Transmitter Link ("STL") transmitter on 944.865 MHz. We conclude,
    pursuant to Section 503(b) of the Act,[^2] that CC Licenses is
    apparently liable for a forfeiture in the amount of four thousand
    dollars (\$4,000).

# BACKGROUND

2.  On May 30, 2006, agents from the Enforcement Bureau's San Diego
    Office conducted a monitoring survey of the Aural Broadcast STL
    users in the greater Tucson, Arizona area. The agents, utilizing
    mobile direction finding techniques, located and confirmed that a
    transmitter was active on frequency 944.865 MHz. This signal was
    emanating from the studios of KXEW(AM), located at 3202 N. Oracle
    Road, Tucson, Arizona. The programming material heard on KXEW(AM) at
    1600 kHz matched exactly that of the audio of the 944.865 MHz
    station. The San Diego agents researched the Commission's records
    for any authorized transmitters in the greater Tucson area and
    determined that the transmitter observed on 944.865 MHz was not
    licensed.

3.  On June 1, 2006, the San Diego agents returned to the KXEW(AM)
    studios and by utilizing mobile direction finding techniques
    confirmed again that the STL transmitter operating on frequency
    944.865 MHz was emanating from 3202 N. Oracle Road, Tucson, Arizona.

4.  On June 22, 2006, the San Diego Office issued a Letter of Inquiry
    ("LOI") to CC Licenses concerning their ownership and operation of
    the unlicensed Aural Broadcast STL station for KXEW(AM) at 3202 N.
    Oracle Road, Tucson, Arizona. CC License sent a response
    ("Response") to the LOI on July 20, 2005. In its Response, CC
    Licenses acknowledges it did not have an authorization for the STL
    transmitter on frequency 944.865 MHz for the location at 3202 N.
    Oracle Road. CC Licenses states that under Section 74.24 of the
    Commission's Rules ("Rules"),[^3] KXEW(AM) could operate this STL
    transmitter up to 720 hours under the short-term operation
    provision. CC Licenses admits, however, that this STL transmitter
    had been in year-round operation and exceeded the 720 hour limit. CC
    Licenses states it has an authorization for an Aural Broadcast STL
    station, WLJ389, associated with another of its stations, KWFM(AM),
    for use on different frequencies, 948.375 MHz and 948.625 MHz, at a
    different location, the previous KWFM(AM) studio located on 3222
    South Richey Avenue, Tucson, Arizona. CC Licenses also states that
    it will file an application with appropriate frequency coordination,
    to obtain appropriate licensing for the STL used with KXEW(AM)[^4].

# DISCUSSION

5.  Section 503(b) of the Act provides that any person who willfully or
    repeatedly fails to comply substantially with the terms and
    conditions of any license, or willfully or repeatedly fails to
    comply with any of the provisions of the Act or of any rule,
    regulation or order issued by the Commission thereunder, shall be
    liable for a forfeiture penalty.[^5] The term \"willful\" as used in
    Section 503(b) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^6] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^7]

6.  Section 301 of the Act requires that no person shall use or operate
    any apparatus for the transmission of energy or communications or
    signal by radio within the United States except under and in
    accordance with the Act and with a license.[^8] Under Section 74.24
    of the Rules, broadcasters are given great flexibility to use
    auxiliary broadcast stations for short-term operations. Such
    operation, however, must be done on a secondary, non-interference
    basis to regularly authorized stations, and may not exceed 720 hours
    annually.[^9] CC Licenses acknowledges its operation of the STL
    transmitter at issue here did not comply with the short-term
    operation authorized by Section 74.24.[^10] CC Licenses also
    acknowledges it did not have an authorization to operate this STL
    transmitter. Therefore, CC Licenses' violation was willful. The
    operation occurred for more than one day, therefore, the violation
    was repeated. Based on the evidence before us, we find that CC
    Licenses apparently willfully and repeatedly violated Section 301 of
    the Act by operating an unlicensed STL transmitter on 944.865 MHz.

7.  Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* (\"*Forfeiture Policy Statement*\"), and Section 1.80
    of the Rules, the base forfeiture amount for operation without an
    instrument of authorization for the service is \$10,000.[^11] In
    assessing the monetary forfeiture amount, we must also take into
    account the statutory factors set forth in Section 503(b)(2)(D) of
    the Act, which include the nature, circumstances, extent, and
    gravity of the violations, and with respect to the violator, the
    degree of culpability, and history of prior offenses, ability to
    pay, and other such matters as justice may require.[^12] Given that
    the unauthorized operation in this case is not a violation on the
    same order as construction and operation with no color of authority,
    we believe a reduction in the base forfeiture amount is warranted
    and, therefore, conclude a forfeiture amount of \$4,000 is
    appropriate.[^13] Applying the *Forfeiture Policy Statement*,
    Section 1.80, and the statutory factors to the instant case, we
    conclude that CC Licenses is apparently liable for a \$4,000
    forfeiture.

# ORDERING CLAUSES

8.  Accordingly**, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, 0.314 and 1.80 of the Commission\'s Rules, CC Licenses, LLC,
    is hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A
    FORFEITURE** in the amount of four thousand dollars (\$4,000) for
    violations of Section 301 of the Act.[^14]

9.  **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules within thirty days of the release date of this
    Notice of Apparent Liability for Forfeiture, CC Licenses, LLC,
    **SHALL PAY** the full amount of the proposed forfeiture or **SHALL
    FILE** a written statement seeking reduction or cancellation of the
    proposed forfeiture.

10. Payment of the 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, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911-6106.

11. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, San Diego Office,
    4542 Ruffner Street, Suite 370, San Diego, California, 92111 and
    must include the NAL/Acct. No. referenced in the caption.

12. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    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
    petitioner'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.

13. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Associate Managing Director -- Financial Operations, Room 1A625,
    445 12th Street, S.W., Washington, D.C. 20554.[^15]

14. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to CC Licenses, LLC, at its
    address of record**.**

FEDERAL COMMUNICATIONS COMMISSION

William R. Zears Jr. District Director

San Diego District Office

Western Region

Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: 47 U.S.C. § 503(b).

[^3]: 47 C.F.R. § 74.24.

[^4]: See Special Temporary Authority ("STA") Application, File No.
    0002708276, filed August 10, 2006, and STA granted September 7, 2006
    (WQFP787). See also File No. 0002727227, filed August 25, 2006.

[^5]: 47 U.S.C. § 503(b).

[^6]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that \"\[t\]he term \'willful\', when
    used with reference to the commission or omission of any act, means
    the conscious and deliberate commission or omission of such act,
    irrespective of any intent to violate any provision of this Act or
    any rule or regulation of the Commission authorized by this
    Act....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^7]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) 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."

[^8]: 47 U.S.C. § 301.

[^9]: 47 C.F.R. § 74.24.

[^10]: Additionally, CC Licenses' operation of the STL did not comply
    with Section 74.25 of the Rules, 47 C.F.R. § 74.25, which grants
    temporary conditional operating authority for broadcast auxiliary
    stations, in some situations, during the pendency of an application.
    During the time of the San Diego Office inspections, CC Licenses had
    no application on file concerning the STL at issue here.

[^11]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^12]: 47 U.S.C. § 503(b)(2)(D).

[^13]: *See* *Arnold Broadcasting Company, Inc.,* 19 FCC Rcd 14123,
    14125 (EB 2004), *aff'd* 20 FCC Rcd 10617 (EB 2005).

[^14]: 47 U.S.C. §§ 301, 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80.

[^15]: *See* 47 C.F.R. § 1.1914.