**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

M.C. ALLEN PRODUCTIONS ) File No. EB-00-IH-0392

) NAL/Acct. No. 200132080055

Licensee of Station KMCA(AM) )

Shasta,[^1] California )

Facility ID \# 64414 )

## FORFEITURE ORDER

**Adopted:** November 28, 2001 **Released:** November 30, 2001

By the Chief, Enforcement Bureau:

1.  In this Forfeiture Order (\"Order\"), we find that M.C. Allen
    Productions ("Allen") has violated Section 301 of the Communications
    Act of 1934, as amended (the "Act"), 47 U.S.C. § 301, and sections
    73.1125(e), 73.1615 and 73.1620 of the Commission's rules, 47 C.F.R.
    § 73.1125(e), 73.1615 and 73.1620, in connection with its operation
    of Station KMCA(AM) ("KMCA"). Based on our review of the facts and
    circumstances and after considering Allen's response to our *Notice
    of Apparent Liability for Forfeiture*, 16 FCC Rcd 9505 (Enforcement
    Bureau 2001) ("*NAL*"), we conclude that Allen is liable for a
    forfeiture in the amount of ten thousand dollars (\$10,000).

## BACKGROUND

2.  In *Application of State of Oregon*, 15 FCC Rcd 15456, 15458 n.
    13 (2000) ("*State of Oregon*") (subsequent history omitted),[^2]
    the Commission referred to the Enforcement Bureau the question
    whether KMCA's main studio location complied with section 73.1125(a)
    of the Commission's rules, 47 C.F.R. § 73.1125(a). After
    investigating the matter, we determined that KMCA had maintained its
    main studio at locations authorized by the Commission's rules.[^3]
    However, as explained in the *NAL*, it also appeared that Allen
    violated various statutory and rule provisions in its operation of
    KMCA.

3.  At the outset, we observed in the *NAL* that Allen then held a
    license to operate KMCA as a nondirectional AM station in the
    community of Burney on 1450 kHz. However, prior to its most recent
    renewal on July 14, 1999, Allen had relocated KMCA to Shasta, a
    community some 55 miles to the southwest, adjacent to the larger
    community of Redding, California.[^4] Allen's only apparent
    authority for this move were permits that authorized Allen to
    construct a new nondirectional AM station in Shasta.[^5]

4.  Following renewal, Allen resumed broadcasting in Shasta, purportedly
    pursuant to program test authority.[^6] However, Allen did not file
    the required license application until November 5, 1999.[^7]
    Moreover, in that application, Allen reported that it had not fully
    met all the terms, conditions and obligations set forth in the
    permit.[^8] Among other things, the license application reflected
    that the overall height of the antenna differed from that authorized
    by the permit and that the tower was toploaded instead of being a
    standard non-toploaded tower. Shortly after filing the referenced
    license application, Allen obtained on December 15, 1999, special
    temporary authorization ("STA") to operate from a site different
    than the one referenced in its license application.[^9] Allen began
    broadcasting from this new site on December 20, 1999. Although its
    STA expired on May 30, 2000, Allen did not obtain additional STA.
    Nonetheless, Allen continued to broadcast as if it had such
    authority.[^10] Moreover, on or about February 20, 2001,[^11] Allen
    commenced broadcasting (1460 kHz), purportedly in accordance with
    its modified permit (*see* File No. BMP-20000324AAT, granted August
    30, 2000).[^12] However, although the license application reflected
    that the station was an AM directional, there was no indication that
    Allen had complied with 47 C.F.R. § 73.1620(a)(4). That provision
    requires permittees of an AM station with a directional antenna
    system to submit a proof of performance and authorizes program tests
    only after issuance of staff approval. Finally, once Allen had
    abandoned Burney, it also ceased maintaining a telephone number in
    Burney or a toll-free number. In view of the above, the *NAL* cited
    Allen for apparent violations of 47 U.S.C. § 301 (License for radio
    communication or transmission of energy) and 47 C.F.R. §§ 73.1615
    (Operation during modification of facilities), 73.1620 (Program
    tests) and 73.1125(e) (Station main studio location).

5.  In its response to the *NAL*, Allen raises several arguments.[^13]
    First, Allen suggests that the Bureau exceeded its authority by
    inquiring into matters that were not specifically referred by the
    Commission in *State of Oregon*. Second, Allen objects "strenuously"
    to the *NAL*'s conclusion that KMCA's operations were unauthorized,
    and it challenges our conclusion that the violations appeared
    intentional. Allen suggests that the construction permits granted by
    the staff authorized its change of transmitter site and community of
    license and that it broadcast on KMCA only during periods of program
    test authority and STA. Third, Allen claims that the *NAL* proposed
    a \$7,000 forfeiture for the failure to maintain a local telephone
    number even though the *NAL* characterized the violation as minor,
    and notwithstanding Commission precedent that assessed more modest
    forfeitures for the same violations.[^14] Allen suggests that
    imposition of the base amount for a main studio violation under the
    circumstances of its case is arbitrary and grossly excessive, in
    light of its "unblemished" record. Finally, Allen reports that, upon
    receipt of the *NAL*, it ceased broadcast operations on KMCA before
    receiving STA to resume broadcasting at its now licensed site.[^15]
    Allen concludes that we should cancel the forfeiture, or,
    alternatively, that we should impose only a nominal amount.

## 

## DISCUSSION

6.  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." Section
    73.1615 of the Commission's rules, 47 C.F.R. § 73.1615, allows AM
    licensees that hold a permit to modify their facilities to
    discontinue operation or operate with temporary or reduced
    facilities for a period of no more than 30 days. To extend its
    authority beyond 30 days, the licensee must submit an informal
    request prior to the 30^th^ day. Moreover, when the licensee holds a
    permit that authorizes both a change in frequencies and directional
    facilities, the licensee must request and obtain authority from the
    Commission prior to using any new installation authorized by the
    permit. Section 73.1620(a)(1) of the Commission's rules, 47 C.F.R. §
    73.1620(a)(1), authorizes the permittee of a non-directional AM
    station to commence program tests. However, program test authority
    is conditioned, *inter alia*, upon completion of construction in
    accordance with the terms of the permit. Moreover, section
    73.1620(a)(4) of the Commission's rules, 47 C.F.R. § 73.1620(a)(4),
    authorizes the permittee of a directional AM station to commence
    program tests, but only after certain additional provisos are met.
    Specifically, in addition to completion of construction in
    accordance with the terms of the permit, the permittee must submit
    its license application with a request for program test authority at
    least ten days "prior to the date on which it desires to commence
    program test operations." Further, the applicant must submit a proof
    of performance containing exhibits required by section 73.186 of the
    Commission's rules.[^16] Finally, a permittee may not commence
    program tests prior to issuance of staff approval. With respect to
    the main studio, section 73.1125(e) of the Commission's rules, 47
    C.F.R. § 73.1125(e), requires broadcast licensees to maintain a
    local telephone number in their community of license or a toll-free
    number.

7.  Initially, we reject Allen's argument that we had no authority to
    investigate and act upon matters in addition to the one referred by
    the Commission. Sections 0.111 and 0.311 of the Commission's rules,
    47 C.F.R. §§ 0.111 and 0.311, give the Enforcement Bureau primary
    responsibility for enforcing the Commission's rules relative to
    broadcast operations. Our investigation into whether Allen operated
    KMCA in accordance with those rules involves nothing more than
    action within the scope of that authority. Further, nothing in the
    Commission's Order limited the scope of the Enforcement Bureau's
    authority to investigate and assess a forfeiture against Allen for
    violations.

8.  After carefully considering all the facts and circumstances
    surrounding Allen's operation of KMCA, we remain convinced that
    Allen broadcast over KMCA without authority over an extended period.
    As admitted repeatedly by Allen,[^17] it ceased broadcasting from
    its licensed facilities in Burney well before its most recent
    license renewal. Subsequent to renewal (July 14, 1999), Allen
    resumed broadcast operations on KMCA from its construction permit
    site. Allen did so without complying with 47 C.F.R. § 73.1615 in
    that it failed to submit the appropriate request. Moreover, Allen
    failed to obtain program test authority. Contrary to 47 C.F.R. §
    73.1620(a)(1), Allen commenced broadcasting on KMCA in September
    1999, nearly two months before it filed the necessary license
    application, not the ten days allowed by the rule. *See* note 6,
    *supra*. Even then, Allen's license application reveals that Allen
    did not complete construction in accordance with its permit. Thus,
    prior to December 15, 1999, Allen never had authority to begin
    broadcast operations in Shasta. Allen's permits authorized
    construction of facilities there, not commencement of broadcast
    operations, and Allen never fulfilled the conditions necessary to
    authorize program tests. Likewise, subsequent to the expiration of
    STA, which it held between December 15, 1999, and May 30, 2000,
    Allen again continued to broadcast from its STA site even though it
    did not have authority to do so. Its June 5, 2000, request for STA
    remained merely a request, nothing more. In similar situations, we
    have observed that the mere filing of an application does not
    constitute authority to operate.[^18] Moreover, the filing of
    Allen's penultimate license application in February 2001, following
    partial completion of construction, conferred no right to resume
    broadcasting. The record reveals that Allen had not completed
    construction of its nighttime directional array, did not submit a
    proof of performance, and did not request or wait for staff approval
    before commencing broadcast operations. Thus, Allen had not
    fulfilled the requirements of 47 C.F.R. 73.1620(a)(4) and therefore
    did not have program test authority. In short, beginning in
    September 1999 and concluding with its cessation of broadcast
    operations following issuance of the *NAL*, Allen's operation of
    KMCA was not in accordance with its license or in accordance with
    any other grant of authority, except for the six-month period
    covered by the STA. Rather, Allen operated from an unauthorized
    location and, beginning in February 2001, operated on an
    unauthorized frequency. Finally, Allen did not maintain a local
    telephone number or a toll-free number in Burney, contrary to 47
    C.F.R. § 73.1125(e), since its last renewal of license.

9.  Section 503(b)(1) of the Act, 47 U.S.C. § 503(b)(1),[^19] provides
    that any person who willfully or repeatedly fails to comply with the
    terms and conditions of his license, the Communications Act or the
    Commission's rules shall be liable for a forfeiture penalty. 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 Commission's rules,[^20] while "repeatedly" means more than
    once.[^21] After considering the record, including Allen's response
    to the *NAL*, we conclude that Allen, for most of the time following
    renewal of license to the present, operated KMCA without
    authority.[^22] Allen commenced broadcasting without complying
    either with the requirements for operation during modification of
    facilities or for obtaining program test authority. Upon expiration
    of STA, Allen continued to broadcast even though the staff did not
    act favorably on its request to renew STA. Upon partial completion
    of construction of its new facilities, Allen commenced broadcast
    operations, again without qualifying for program test authority. In
    this regard, contrary to 47 C.F.R. § 73.1620(a)(4), Allen did not
    request or receive explicit staff approval. We thus conclude that
    Allen's violations with respect to unauthorized operations were both
    willful and repeated. Finally, we also conclude that Allen's failure
    to maintain an appropriate telephone number in Burney was both
    willful and repeated.

10. 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). They 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 base amounts of \$4,000
    for operation at an unauthorized location, \$4,000 for operation on
    an unauthorized frequency, and \$7,000 for a violation of the main
    studio rule.[^23] Thus, the total base amount is \$15,000. As for
    adjustments, after considering the entire record, we now believe
    that insufficient evidence exists to justify a conclusion that
    Allen's violations were intentional. There is simply nothing before
    us that shows that Allen knew that it was violating the rules but
    continued to do so despite that knowledge. Thus, we do not include
    any upward adjustment for either the unauthorized location or
    unauthorized frequency violations. Further, in mitigation, we find
    that Allen's main studio violation was relatively minor in
    nature.[^24] Consequently, we do not assess the base amount for a
    main studio violation but include in the total forfeiture only a
    minor portion of the recommended base amount for a main studio rule
    violation, or \$2,000. We therefore reject Allen's charge that the
    amount assessed for the main studio rule violation is arbitrary or
    grossly excessive. Further, we reject Allen's contention that its
    record is unblemished, thereby warranting a reduction or
    cancellation of the forfeiture. As noted, Allen relocated KMCA from
    Burney to Shasta without authority prior to its last renewal. *See*
    ¶ 3, *supra*. Even though an intervening renewal prevents imposition
    of a forfeiture for all violations related to KMCA's unauthorized
    relocation,[^25] we may still consider the facts in determining,
    among other things, whether the licensee has a history of overall
    compliance.[^26] Finally, although Allen ceased broadcast operations
    upon receipt of the *NAL*, the Commission has long held that
    remedial action to correct a violation, while commendable, will
    generally not nullify a forfeiture penalty. *See Station KGVL,
    Inc.*, 42 FCC 2d 258, 259 (1973). On balance, we find that a
    \$10,000 forfeiture should be imposed.

# ORDERING CLAUSES

11\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Act,[^27] and sections 0.111, 0.311 and 1.80 of the Commission\'s
rules,[^28] M.C. Allen Productions FORFEIT to the United States the sum
of ten thousand dollars (\$10,000) for: violating 47 U.S.C. § 301 and 47
C.F.R. §§ 73.1615 and 73.1620, regarding a licensee's operation during
modification of facilities and a permittee's commencement of program
tests; and for violating 47 C.F.R. § 73.1125(e) by failing to maintain a
local or toll-free number for the community of Burney.

12\. IT IS FURTHER ORDERED THAT, payment of the forfeiture shall be made
in the manner provided for in 47 C.F.R. § 1.80, within thirty (30) days
Order. 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 of the Act, 47 U.S.C. § 504. 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. Requests for payment of the full
amount of this Forfeiture Order under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.[^29]

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\. IT IS FURTHER ORDERED THAT a copy of this FORFEITURE ORDER shall be
sent by Certified Mail Return Receipt Requested to: M.C. Allen
Productions, 4531 Shannon Place, Redding, California 96001; with a copy
to: Christopher D. Imlay, Esq., Booth, Freret, Imlay & Tepper, P.C.,
5101 Wisconsin Avenue, N.W., Suite 307, Washington, D.C. 20006.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: On July 13, 2001, the Commission's staff granted BL-20010612AHZ,
    thereby changing KMCA's community of license from Burney to Shasta,
    California.

[^2]: In that decision, the Commission reaffirmed the dismissal of an
    application whose proposed contour overlapped KMCA's licensed
    contour in violation of section 73.37(a) of the Commission's rules,
    47 C.F.R. § 73.37(a). The Commission determined that dismissal was
    appropriate because the applicant neither had protected KMCA's
    licensed facilities in Burney nor requested a waiver of 47 C.F.R.§
    73.37(a). The applicant had contended, *inter alia*, that there was
    no need to protect KMCA's licensed facilities because Allen had
    already relocated KMCA and its main studio out of Burney. The
    Commission observed that, notwithstanding Allen's alleged move,
    protection of the licensed facilities of KMCA was still appropriate
    in the event Allen found it impossible to construct in accordance
    with its permit, which allowed KMCA to construct a new AM station in
    Shasta, California. The Commission also noted that the applicant's
    allegations regarding KMCA's main studio did not justify a waiver of
    47 C.F.R. § 73.37(a).

[^3]: We found that Allen always maintained KMCA's main studio within
    the principal community contour of Station KRRX(FM), Burney, and
    thus remained in compliance with 47 C.F.R. § 73.1125(a)(2).

[^4]: *See* letter from Mark C. Allen to Magalie Salas, Secretary,
    Federal Communications Commission, dated April 17, 1998. In that
    letter, Allen acknowledged that KMCA "went on the air for service"
    in Shasta on January 1, 1998 and had become an "established Business
    in the community." \[sic\] *See also* letters from Mark C. Allen to
    Charles W. Kelley, Chief, Investigations and Hearings Division,
    Enforcement Bureau, dated March 12, 2001 and April 9, 2001.

[^5]: *See* File Nos. BP-19970903AA, granted June 12, 1998, and
    BMP-19980901AA, granted January 19, 1999. *See also* letters from
    Allen's president, Mark C. Allen, to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, dated
    March 12, 2001 and April 9, 2001; letter from Mark C. Allen to
    Magalie Salas, Secretary, Federal Communications Commission, dated
    April 17, 1998.

[^6]: *See* letter from Mark C. Allen to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, dated
    April 9, 2001. Initially, it appeared that Allen had resumed
    broadcast operations in Shasta as early as July 14, 1999. However,
    as clarified by its response to the NAL, Allen resumed daytime
    broadcasting in September 1999. In any event, as explained *infra*
    at ¶ 8, such broadcasts occurred before Allen had authority to
    broadcast in Shasta.

[^7]: *See* File No. BL-19991105AAZ, dismissed August 30, 2000.

[^8]: *See id*., Section II, Question 4.

[^9]: *See* File No. BSTA-19991112ABW, granted December 15, 1999.

[^10]: *See* letter from Mark C. Allen to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, dated
    April 9, 2001. We note that Allen filed on June 5, 2000, a request
    for further STA. However, the staff ultimately denied that request
    on May 18, 2001, subsequent to the issuance of the *NAL*.

[^11]: The *NAL* at ¶ 3 erroneously states February 2000; the context
    makes clear that we meant February 2001.

[^12]: *See* BL-20010227ABW (dismissed May 18, 2001). *See also* letter
    from Mark C. Allen to Charles W. Kelley, Chief, Investigations and
    Hearings Division, Enforcement Bureau, dated April 9, 2001.

[^13]: Allen's counsel also makes several factual assertions as to
    Allen's intent or beliefs, none of which are supported by an
    affidavit from a person with personal knowledge of the facts alleged
    or by any other reliable evidence. Hence, they will not be
    considered.

[^14]: Allen cites, for example, *Rasa Communications Corp.*, Notice of
    Apparent Liability, 11 FCC Rcd 13243, 13246 (Mass Media Bureau
    1996). In that case, the Mass Media Bureau proposed a forfeiture of
    \$2,000 for brief failures to maintain a local telephone number and
    the public file.

[^15]: *See* BSTA-20010524AAP, granted May 25, 2001.

[^16]: 47 C.F.R. § 73.186.

[^17]: *See* letters listed *supra* note 4.

[^18]: *See KNFL, Inc.*, Forfeiture Order, 15 FCC Rcd 10286 (Enforcement
    Bureau), *recon. denied*, 15 FCC Rcd 25527 (2000); *WRHC
    Broadcasting Corp.*, Notice of Apparent Liability, 15 FCC Rcd 5551,
    5553-54 (Enforcement Bureau 2000); *Southeast Telephone, Inc.*,
    Notice of Apparent Liability, 15 FCC Rcd 4222 (Enforcement Bureau
    2000).

[^19]: *See also* section 1.80(a)(1) and (2) of the Commission's rules,
    47 C.F.R. § 1.80(a)(1) and (2).

[^20]: *See* *Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^21]: *See* *Hale Broadcasting Corp.*, 79 FCC 2d 169, 171 (1980).

[^22]: We expect licensees to know and comply with the Commission's
    rules, and we will not excuse violations absent clear mitigating
    circumstances. *See KEOT, Inc.*, Forfeiture Order, 16 FCC Rcd 683
    (Enforcement Bureau 2001).

[^23]: *See* *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*").

[^24]: *See Rasa Communications Corp.*, *supra* note 14.

[^25]: See 47 U.S.C. 503(b)(6).

[^26]: *See Enserch Corporation*, 15 FCC Rcd 13551, 13554 (2000). *See
    also Forfeiture Guidelines*, 12 FCC Rcd at 17103-04.

[^27]: 47 U.S.C. § 503(b).

[^28]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^29]: *See* 47 C.F.R. § 1.1914.