**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | 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),    | * |                              |
| Tonopah, NV                      |   |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** May 9, 2001 **Released:** May 14, 2001

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture (NAL), we find
    that Donald W. Kaminski, Jr. (Mr. Kaminski), licensee of KHWK(FM),
    Tonopah, Nevada, apparently willfully violated section 73.1015 of
    the Commission's rules[^1] by failing to respond to a written
    Commission inquiry. Based upon the facts and circumstances
    surrounding this apparent violation, we find that Mr. Kaminski is
    apparently liable for a forfeiture in the amount of \$4,000.

**II. BACKGROUND**

2.  On November 9, 2000, we sent a letter of inquiry (LOI) to Mr.
    Kaminski concerning the ownership and operation of FM translator
    K240BS, Pahrump, NV and KHWK(FM), Tonopah, NV. Our LOI was sent
    certified mail, return receipt requested. However, the U.S. Postal
    Service certified mail receipt was not returned to the Commission.

3.  On January 3, 2001, we sent Mr. Kaminski another letter, and
    enclosed a copy of the earlier LOI. Our January 3, 2001 letter
    reminded Mr. Kaminski that section 73.1015 of the Commission's rules
    requires him to respond to our inquiry. We also provided Mr.
    Kaminski with the name, telephone number and e-mail address of the
    staff attorney assigned to this matter. Our letter of January 3,
    2001 also was sent certified mail, return receipt requested. The
    U.S. Postal Service certified mail receipt reflects that Mr.
    Kaminski received this letter, but does not indicate the date of
    delivery. Nevertheless, Mr. Kaminski did not respond to our inquiry
    following receipt of the January 3, 2001 letter.

    **III. DISCUSSION**

4.  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).

    Mr. Kaminski apparently has refused to respond in writing to our
    inquiry. Therefore, it appears that Mr. Kaminski's refusal
    constitutes a willful violation of section 73.1015 of the
    Commission's rules. Section 503(b)(1)(B) of the Act provides that
    any person who willfully or repeatedly fails to comply with the Act
    or the Commission's rules shall be liable for a forfeiture
    penalty.[^2] The Commission has ruled that an act or omission is
    "willful" if the violator knew it was taking the action in question
    whether or not there is any intent to violate the rule.[^3] Under
    these circumstances, we conclude that Mr. Kaminski's apparent
    violation of section 73.1015 warrants the imposition of a monetary
    forfeiture.

5.  In assessing a forfeiture, section 503(b)(2)(D) of the Act[^4] and
    section 1.80(b)(4)[^5] of the Commission's rules require us to
    consider 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
    other such matters as justice may require. The Commission's
    *Forfeiture Guidelines* establish a base amount of \$4,000 for
    failure to respond to Commission communications.[^6] Based upon the
    information before us, and taking into consideration the factors
    expressed in section 503(b)(2)(D) of the Act, we find that a
    forfeiture in the amount of \$4,000 is appropriate.

6.  Our action issuing this NAL does not resolve serious questions
    concerning ownership and operation of FM translator K240BS. Mr.
    Kaminski's failure to comply with section 73.1015 in the future
    would constitute a separate violation of the Commission's rules. We
    warn Mr. Kaminski that failure to respond to further Commission
    inquiries in this matter could form the basis for additional notices
    of apparent liability and may result in an order to show cause why
    FM translator K240BS should not be required to cease and desist
    operation.

    **IV. ORDERING CLAUSES**

7.  Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C. § 503(b), and
    47 C.F.R. § 1.80, Donald W. Kaminski, Jr. is hereby NOTIFIED of his
    APPARENT LIABILITY FOR A FORFEITURE in the amount of four thousand
    dollars (\$4,000) for violating section 73.1015 of the Commission's
    rules.

8.  IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R. § 1.80, within
    thirty days of this NOTICE OF APPARENT LIABILITY, Donald W.
    Kaminski, Jr. SHALL PAY the full amount of the proposed forfeiture
    or SHALL FILE a written statement seeking reduction or cancellation
    of the proposed forfeiture.

9.  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.

10. The response, if any, must be mailed to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W, Room 3-B443,
    Washington DC 20554 and MUST INCLUDE the file number listed above.

11. 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.

12. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief,
    Revenue and Receivables Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554. *See* 47 C.F.R. § 1.1914.

13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
    Liability for Forfeiture SHALL BE SENT by Certified Mail- Return
    Receipt Requested, to Mr. Donald W. Kaminski, licensee of KHWK(FM),
    at the licensee's address of record, P.O. Box 1669, Tonopah, Nevada
    89049.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 73.1015.

[^2]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. § 1.80(a)(2).

[^3]: *Southern California Broadcasting Company*, 6 FCC Rcd 4387 (1991).

[^4]: 47 U.S.C. § 503(b)(2)(D).

[^5]: 47 C.F.R. § 1.80(b)(4).

[^6]: *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)("*Forfeiture Guidelines*').