Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File No. EB 01-IH-0403       |
|                                  | * |                              |
| **Peninsula Communications,      | ) | NAL/Acct No. 200132080060    |
| Inc.**                           | * |                              |
|                                  | * |                              |
| Former licensee of FM translator |   |                              |
| stations K285EF, Kenai, Alaska;  | * |                              |
|                                  | * |                              |
| K283AB, Kenai/Soldotna, Alaska;  | ) |                              |
|                                  | * |                              |
| K257DB, Anchor Point, Alaska;    | * |                              |
|                                  |   |                              |
| K265CK, Kachemak City, Alaska;   | * |                              |
|                                  | * |                              |
| K272CN, Homer, Alaska; and       | ) |                              |
|                                  | * |                              |
| K274AB and K285AA, Kodiak,       | * |                              |
| Alaska                           |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER**

**Adopted:** August 23, 2001 **Released:** August 29, 2001

By the Commission:

1\. In this Notice of Apparent Liability for Forfeiture and Order
("NAL"), we find that Peninsula Communications, Inc. ("Peninsula") has
apparently violated Section 301 of the Communications Act of 1934, as
amended (the "Act"), 47 U.S.C. § 301. The apparent violations arise from
continued operation of translator stations K285EF, Kenai; K283AB,
Kenai/Soldotna; K257DB, Anchor Point; K265CK, Kachemak City; K272CN,
Homer; and K274AB and K285AA, Kodiak subsequent to our order to
terminate such operations. *See Peninsula Communications, Inc.*, FCC
01-159, released May 18, 2001 ("*May 2001 MO&O*").[^1] We conclude that
Peninsula is apparently liable for a forfeiture in the amount of one
hundred forty thousand dollars (\$140,000). We also order Peninsula to
submit an affidavit informing us whether Peninsula has ceased operating
the above-captioned translators and whether it intends to operate those
translators at any time in the future absent authorization to do so. In
this regard, we note that continued unauthorized operation may lead to
an order to show cause to revoke Peninsula's other Commission licenses.

**I. BACKGROUND**

2\. This case involves our eligibility and licensing requirements for FM
translators, which appear in 47 C.F.R. § 74.1232(d). Briefly, that
subsection provides that authorization for an "other-area" or
"non-fill-in" translator will not be granted to persons interested in or
connected with the commercial "primary FM station."[^2] These rules
became effective on June 1, 1991, with pre-existing translators required
to comply no later than June 1, 1994.[^3] As the Commission explained in
establishing these rules, translators are intended to provide
"supplementary service to areas in which direct reception of FM radio
broadcast stations is unsatisfactory due to distance or intervening
terrain barriers," and the governing rules are meant "to ensure that the
translator service does not adversely affect the operation of FM radio
broadcast operations." *Amendment of Part 74 of the Commission's Rules
Concerning FM Translator Stations*, *supra* note 3, 8 FCC Rcd at 5093.

3\. Peninsula was the licensee of the captioned FM translator stations
K285EF, Kenai; K283AB, Kenai/Soldotna; K257DB, Anchor Point; K265CK,
Kachemak City; K272CN, Homer; and K274AB and 285AA, Kodiak, Alaska. All
of those translator stations were non-fill-in stations that rebroadcast
primary stations licensed to Peninsula. All of the translators, except
the Kodiak translators, have been operated by Peninsula in violation of
47 C.F.R. § 74.1232(d) since at least June 1, 1994.[^4]

4\. In September 1996, the staff, in addressing petitions to deny filed
against some of the translators' 1995 renewal applications, [^5]
determined that Peninsula was operating the translator stations in
violation of our translator rules' ownership restrictions. *See* 47
C.F.R. § 74.1232(d). Nevertheless, the staff deferred action on the 1995
renewal applications for a period of 60 days to allow Peninsula to file
assignment applications in order to come into compliance with 47 C.F.R.
§ 74.1232(d). *See Letter to Jeffrey D. Southmayd, Esq*., Ref. No.
1800B4-AJS (Chief, Audio Services Division, Mass Media Bureau, September
11, 1996) ("*September 1996 letter*"). Ultimately, acceptable assignment
applications were filed.[^6]

5\. On November 6, 1997, the staff granted the assignment applications,
as well as Peninsula's 1995 renewal applications, conditioned upon
consummation of the authorized assignments. In addition, the staff
conditioned consummation of the assignments on grant of the
recently-filed 1997 renewal applications. *See* *Letter to Jeffrey D.
Southmayd, Esq*., Ref. No. 1800B3-BSH (Chief, Audio Services Division,
Mass Media Bureau, November 6, 1997) ("*November 1997 staff decision*").
The *November 1997 staff decision* stated that failure to meet the
divestiture condition would render grant of the 1995 renewal
applications null and void. Peninsula did not seek reconsideration or
review of the *November 1997 staff decision*. However, other entities
(collectively referred to as "Petitioners") filed both a petition for
reconsideration and an application for review of the *November 1997
staff decision.*

6\. In December 1998, the Commission dismissed and denied, respectively,
Petitioners' petition for reconsideration and their application for
review. *See December 1998 MO&O*. Essentially, Petitioners had argued
that the staff should have revoked Peninsula's licenses because of the
rule violations and that the staff erred in concluding instead that
Peninsula could sell the subject translator stations. In our decision,
we noted that, in the absence of an unresolved basic character
qualification issue, "there can be no doubt as to the Commission's
authority to cure or remedy \[the violation of the ownership
restrictions\] by granting the renewal applications conditioned on
divestiture of the translators." *December 1998 MO&O,* 13 FCC Rcd at
23996*.* In the *December 1998 MO&O*, we also granted Peninsula's 1997
renewal applications,[^7] conditioned on consummation of the authorized
assignments, and denied requests for waiver of 47 C.F.R. § 74.1231(b),
the over-the-air delivery restrictions, filed by Coastal for the Kodiak
translators.[^8]

7\. Peninsula and Glacier Communications, Inc. sought reconsideration of
the *December 1998 MO&O*. Peninsula disputed, for the first time, the
conditional grants of the 1995 and 1997 renewal applications and the
determination that the seven subject translators had been operating in
violation of 47 C.F.R. § 74.1232(d) since June 1, 1994. In addition,
Peninsula, but not Coastal, requested reconsideration of the denial of
requests for waivers of 47 C.F.R. § 74.1231(b) for the Kodiak
translators.

8\. On February 14, 2000, we dismissed Peninsula's petition for
reconsideration of the *December 1998 MO&O*. *Peninsula Communications,
Inc.*, 15 FCC Rcd 3293 (2000) ("*February 2000 MO&O*"). We ordered
Peninsula to consummate the authorized assignments within thirty days of
the decision, and we directed the staff to rescind the conditional
grants of the 1995 and 1997 license renewal applications, cancel the
relevant call signs and terminate the translators' operating authority
if Peninsula did not comply with the divestiture requirement. *February
2000 MO&O*, 15 FCC Rcd at 3294, 3296. On February 23, 2000, Peninsula
filed with the Commission a motion to stay the effect of the *December
1998 MO&O* and the *February 2000 MO&O* pending the filing and
resolution of an appeal it intended to file.

9\. On March 8, 2000, Peninsula filed an appeal of the Commission's
*February 2000 MO&O* with the United States Court of Appeals for the
District of Columbia Circuit ("Court"). That same day, Peninsula filed
an Emergency Motion for Stay of the *February 2000 MO&O* with the Court.
On March 14, 2000, the Court denied Peninsula's Emergency Motion for
Stay. The next day Peninsula filed with the Commission a pleading styled
"Rejection of Conditional License Renewal and Assignment of License
Grants" ("Rejection of Conditional Grants"). By order dated July 11,
2000, the Court dismissed Peninsula's appeal without prejudice to
refiling following the Commission's resolution of the "Rejection of
Conditional Grants."

10\. In our *May 2001 MO&O*, we dismissed as untimely Peninsula's
"Rejection of Conditional Grants." In addition, we rescinded the 1995
and 1997 conditional grants of renewal; rescinded the conditional grants
of assignment; dismissed the 1995 and 1997 renewal applications;
dismissed the 1997 assignment applications; canceled the call signs and
terminated Peninsula's operating authority for the seven captioned
translator stations. In this regard, we ordered Peninsula to terminate
operations for the translator stations effective at 12:00 midnight on
the day after release of that order, and we warned Peninsula that
further operations by it after that time may subject it to serious
sanctions, including but not limited to forfeitures.[^9] Thus, in order
to comply with our *May 2001 MO&O*, Peninsula was obligated to cease
operations by 12:00 midnight on May 19, 2001.

11\. Commission records reflect that Peninsula and its counsel were
served with our *May 2001 MO&O* on May 21, 2001, and that Peninsula
itself was served with the *May 2001 MO&O* no later than May 30, 2001.
Nonetheless, information provided to the Commission by our field
personnel in Alaska and by competitors indicates that Peninsula has not
shut down any of the translators and is continuing to broadcast the
signals of its primary stations. In addition, Peninsula's counsel has
informed Commission staff in a telephone conversation that Peninsula has
no intention of terminating its operations on the captioned translators.

**II. DISCUSSION**

12\. Section 301 of the Act, 47 U.S.C. § 301, prohibits radio operation
"except under and in accordance with this Act and with a license in that
behalf granted under the provisions of this Act." As explained above,
Peninsula's licenses for the seven captioned translators were canceled
as of midnight May 19. Nevertheless, Peninsula has continued to operate
those stations in apparent defiance of our order to terminate such
operations.

13\. Section 503(b)(1) of the Act, 47 U.S.C. § 503(b)(1) provides that
any person who willfully or repeatedly fails to comply with the
provisions of the Communications Act or a Commission order shall be
liable for a forfeiture penalty.[^10] In this context, the term
"willful" means that the violator knew it was taking the action in
question, irrespective of any intent to violate the Communications
Act,[^11] while "repeatedly" means more than once.[^12] The information
before us clearly reflects that Peninsula has knowingly operated its
translators subsequent to receipt of a direct order from us to stop. It
thus appears that Peninsula's violations with respect to unauthorized
operations were not only willful but also were intentional. It further
appears that each of the violations described occurred on more than one
day; thus, they were repeated.

14\. In assessing a forfeiture, we take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Act, 47 U.S.C. §
503(b)(2)(D), which include 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. The Commission's forfeiture
guidelines currently establish a base amount of \$10,000 for operation
without an instrument of authorization for the service.[^13] It appears
that Peninsula has willfully and repeatedly operated seven stations
without authorization, thereby bringing the total base amount of the
forfeiture to \$70,000. In considering whether adjustments are
appropriate, it further appears that Peninsula has unlawfully operated
the translators following receipt of our *May 2001 MO&O*, which
unequivocally ordered Peninsula to cease operations by midnight May 19,
2001. It thus appears that Peninsula's unauthorized operation has been
intentional, which warrants an upward adjustment of the forfeiture
amount.[^14] Moreover, we are not currently aware of any facts that
would mitigate Peninsula's apparent violations. Accordingly, we believe
that a \$140,000 forfeiture is appropriate.

15\. Finally, in light of Peninsula's apparent defiance of our *May 2001
MO&O*, we hereby notify Peninsula that further violation of Section 301
of the Act and our *May 2001 MO&O* may raise serious questions about
Peninsula's qualifications to be a Commission licensee. It thus may be
necessary to institute further proceedings pursuant to Section 312(a) of
the Act, 47 U.S.C. § 312(a), with respect to its full service radio
station licenses and other translator station licenses. Such proceedings
could lead to issuance of an order revoking one or more of those
licenses. In this regard, we emphasize that the mere pendency of an
appeal of our *May 2001 MO&O* will not suffice to avoid further
enforcement action.[^15] To assist the Commission in making a
determination whether such a proceeding should be instituted, Peninsula
is ordered to file with the Commission's Secretary, with a copy to the
Chief, Enforcement Bureau, an affidavit by an officer or director
indicating (1) whether Peninsula has ceased operating the relevant
translator stations; and (2) whether it intends to operate the relevant
translator stations at any time in the future absent further Commission
or court action giving it authority to do so. Such affidavit shall be
filed no later than 10 days from the release of this order.

# ORDERING CLAUSES

> 16\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of
> the Act, 47 U.S.C. § 503(b), and section 1.80 of the Commission\'s
> rules, 47 C.F.R. § 1.80, Peninsula Communications, Inc. is hereby
> NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
> one hundred forty thousand dollars (\$140,000) for violating Section
> 301 of the Act, 47 U.S.C. § 301, by operating the seven captioned
> translator stations subsequent to midnight May 19, 2001.

17\. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission\'s rules, 47 C.F.R.§ 1.80, within thirty days of this NOTICE
OF APPARENT LIABILITY FOR FORFEITURE, Peninsula Communications, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.

18\. 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. The payment should note the NAL/Acct. No. referenced above.

19\. The response, if any, must be mailed to the Federal Communications
Commission, Enforcement Bureau, Investigations and Hearings Division,
445 12^th^ Street, S.W., Washington, D.C. 20554 and MUST INCLUDE the
NAL/Acct. No. referenced above.

20\. 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.

21\. Requests for payment of the full amount of this NOTICE OF APPARENT
LIABILITY FOR FOFFEITURE under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.[^16]

22\. IT IS FURTHER ORDERED THAT, no later than 10 days after release of
this NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER, Peninsula
shall file with the Secretary of the Commission, with a copy to the
Chief, Enforcement Bureau, an affidavit signed by one of its officers or
directors indicating (1) whether Peninsula has ceased operating each and
every one of the above-captioned translator stations; and (2) whether
Peninsula intends to operate any or all of the above-captioned
translator stations at any time in the future absent further Commission
or court action giving it authority to do so.

23\. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY FOR FORFEITURE AND ORDER shall be sent by Certified Mail
Return Receipt Requested to Peninsula Communications, Inc., Post Office
Box 109, Homer, Alaska 99603, with a copy to Jeffrey D. Southmayd,
Esquire, Southmayd & Miller 1220 19^th^ Street, N.W., Suite 400,
Washington, D.C. 20036.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

> Secretary

[^1]: That order also dealt with translators licensed to Peninsula,
    which are in Seward, Alaska. The operation of those translators is
    not pertinent to this NAL, and no further reference will be made to
    them.

[^2]: An "other-area" or "non-fill-in" translator is one whose coverage
    contour extends beyond the protected service contour of its primary
    station. *See* 47 C.F.R. §74.1201(h) and (i). A "primary" FM station
    is the station whose signal a translator retransmits. 47 C.F.R
    §74.1201(d).

[^3]: *See Amendment of Part 74 of the Commission's Rules Concerning FM
    Translator Stations*, 5 FCC Rcd 7212 (1990), *modified*, 6 FCC Rcd
    2334 (1991), *recon. denied*, 8 FCC Rcd 5093 (1993).

[^4]: The Kodiak translators ceased rebroadcasting Peninsula's KPEN-FM,
    Soldotna, and KWVV-FM, Homer, Alaska, on November 12, 1997, and
    remained silent between that date and October 29, 1998. On October
    29, 1998, the Kodiak translators began rebroadcasting the signal of
    a noncommercial FM translator in Kodiak in accordance with our
    translator rules. *See Peninsula Communications, Inc.*, 13 FCC Rcd
    23992, 23998 n. 13 (1998) ("*December 1998 MO&O*"). However, in
    January 2001, Peninsula recommenced the rebroadcast of stations
    KPEN-FM and KWVV-FM in violation of 47 C.F.R. § 74.1232(d). *See May
    2001 MO&O* at p. 2, n. 4.

[^5]: The challenged translator stations included K285EF, Kenai; K283AB,
    Kenai/Soldotna; and K274AB and K285AA, Kodiak.

[^6]: Peninsula and Coastal Broadcast Communications, Inc. ("Coastal")
    originally filed applications to assign the translator stations on
    November 14, 1996. Those applications were dismissed as patently not
    in accordance with the Commission's rules. *See Letter to Jeffrey D.
    Southmayd, Esq., et. al.,* Ref. No. 1800B3-BSH (Chief, Audio
    Services Division, Mass Media Bureau, June 17, 1997) ("*June 1997
    Staff Decision*"). The June *1997 Staff Decision* afforded Peninsula
    and Coastal ten business days to file assignment applications that
    would fully comply with the Commission's rules. Peninsula and
    Coastal did so on July 1, 1997.

[^7]: The brevity of the time period between the filing of the 1995 and
    1997 renewal applications was the result of the Commission's
    decision to modify FM translator license terms to run concurrently
    with the terms of FM primary stations. *See In the Matter of
    Modifying Renewal Dates for Certain Stations Licensed under Part 74
    of the Commission's Rules and Revising FCC Form 303-S, Report and
    Order*, 9 FCC Rcd 6504 (1994).

[^8]: 47 C.F.R. § 74.1231(b) provides that other-area or non-fill-in
    translators may only retransmit primary FM station signals received
    by the translator directly over-the-air.

[^9]: *See May 2001 MO&O* at p. 7, ¶ 13.

[^10]: *See also* section 1.80(a)(1) and (2) of the Commission's rules,
    47 C.F.R. § 1.80(a)(1) and (2).

[^11]: *See* *Jerry Szoka*, 14 FCC Rcd 9857, 9865 (1999), *recon.
    denied*, 14 FCC Rcd 20147 (1999), *petition for review pending sub
    nom. Grid Radio and Jerry Szoka v. FCC*, No. 99-1463 (D.C. Cir.
    November 17, 1999); *Southern California Broadcasting Co.*, 6 FCC
    Rcd 4387 (1991).

[^12]: *See* *Hale Broadcasting Corp.*, 79 FCC 2d 169, 171 (1980).

[^13]: *See* section 1.80 of the Commission's rules, 47 C.F.R. § 1.80
    (note to paragraph (b)(4)). *See also* *The Commission's Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Rules to
    Incorporate the Forfeiture Guidelines*, 12 FCC Rcd 17087 (1997),
    *recon. denied*, 15 FCC Rcd 303 (1999).

[^14]: *See M.C. Allen Productions,* Notice of Apparent Liability, DA
    01-1166 (Enforcement Bureau May 9, 2001); *WRHC Broadcasting Corp.*,
    Notice of Apparent Liability, 15 FCC Rcd 5551 (Enforcement Bureau
    2000) (subsequent history omitted).

[^15]: *See, e.g.*, 47 U.S.C. § 416 ("It shall be the duty of every
    person ... to observe and comply with such orders so long as the
    same shall remain in effect.").

[^16]: *See* 47 C.F.R. § 1.1914.