**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

Bay Broadcasting Corporation ) NAL Acct. No. x32080017

)

Licensee, KHSN(AM) )

Coos Bay, Oregon )

Facility ID \# 4082 )

)

Former Licensee, KBBR(AM) )

North Bend, Oregon )

Facility ID \# 5212 )

######### NOTICE OF APPARENT LIABILITY

**Adopted:** May 30, 2000 **Released:** May 31, 2000

By the Chief, Enforcement Bureau:

**INTRODUCTION**

1\. In this Notice of Apparent Liability, we propose to impose a
forfeiture of one thousand five hundred dollars (\$1,500) against Bay
Broadcasting Corporation ("Bay") for apparent willful and repeated
failures to broadcast required station identification announcements on
radio station KBBR(AM), North Bend, Oregon, in violation of section
73.1201 of the Commission's rules, 47 C.F.R. § 73.1201. We take this
action pursuant to section 503(b) of the Communications Act of 1934, as
amended (the "Act"), 47 U.S.C. § 503(b), and section 1.80 of the
Commission's rules, 47 C.F.R. § 1.80. We also admonish Bay for
continuing to use a long wire antenna without Commission authorization
for radio station KHSN(AM), Coos Bay, Oregon, and for continuing to
operate that station's transmitter at an unauthorized location, even
after receiving a Notice of Violation ("NOV") and a Notice of Apparent
Liability ("NAL") with respect to both matters, in violation of sections
73.1675 and 73.1690(b)(2) of the Commission's rules, 47 C.F.R. §§
73.1675 and 73.1690(b)(2).

**BACKGROUND**

2\. Following receipt of a complaint from Robert King ("Mr. King"), a
former employee of Bay, on April 13 and 14, 1999, the resident agent of
the Commission's Portland Field Office conducted an inspection of KBBR,
KHSN and three other stations then licensed to Bay. The inspection
resulted in the issuance of an NOV on April 21, 1999. Following review
of Bay's response, the Portland Field Office, on August 24, 1999, issued
an NAL, which proposed a forfeiture of \$19,000. The NAL determined that
Bay had apparently willfully and repeatedly violated section 301 of the
Act, 47 U.S.C. § 301, and various rule provisions, including sections
73.1201, 73.1675 and 73.1690, 47 C.F.R. §§ 73.1201, 73.1675 and 73.1690.
After considering Bay's response to the NAL, we issued a [Forfeiture
Order]{.underline}, DA 00-948, released April 27, 2000. Therein, we
concluded, *inter alia*, that Bay's response did not contain any
justification for reducing or canceling the forfeiture.

3\. In the meantime, Mr. King submitted additional complaints about
Bay's activities. Among other things, Mr. King alleged that,
notwithstanding the NAL, Bay continued to operate KHSN from an
unlicensed location, with an improper antenna. In addition, the
complaints alleged that Bay failed to broadcast required station
identification announcements over KBBR on September 13 and 14, 1999.
Bay, in responding to an October 5, 1999, letter of inquiry from the
Mass Media Bureau, concedes that the violations occurred. Bay argues,
however, that, at the time of Mr. King's complaints, it had pending
before the Mass Media Bureau requests for special temporary
authorization ("STA") for both the relocation of KHSN(AM) and for use of
the long wire antenna, and thus was taking steps to correct these
violations. The Mass Media Bureau ultimately granted those requests on
April 5, 2000. With respect to the failure to broadcast station
identification announcements on KBBR, Bay explains that the violations
occurred because a software automation program was not working and the
station had not been staffed.

**DISCUSSION**

4\. Section 503(b)(2)(D) of the Act directs us to consider two distinct
matters in determining the appropriate amount of a forfeiture.[^1]
First, as to the violations, we must take into account their nature,
circumstances, extent, and gravity. Second, with respect to the
violator, we must consider the degree of culpability, history of prior
offenses, ability to pay, and such other matters as justice may require.

5\. The record before us reveals that Bay operated KHSN with an
unapproved antenna from an unauthorized site. This unauthorized
operation occurred notwithstanding the issuance of an NOV and an NAL,
both of which alerted Bay that its operations were at variance with the
rules. Consequently, Bay should have terminated its operation of KHSN
until it had received authority, either pursuant to STA or following
grant of a construction permit on FCC Form 301 in accordance with
sections 73.1675 and 73.1690(b)(2) of the Commission's rules.[^2] We
have already considered Bay's violations relative to KHSN in assessing
the propriety of the forfeiture imposed by the [Forfeiture
Order]{.underline}, and believe that our action in that
[Order]{.underline} sets an appropriate fine.[^3] With respect to KBBR,
Bay apparently chose not to staff the station in order to make station
identification announcements on September 13 and 14, 1999,
notwithstanding the failure of its automated system. In essence, Bay
chose to violate the rule rather than pay to have staff available to
make the announcements. Moreover, Bay chose this course of action
notwithstanding that it had recently received an NAL, which, *inter
alia*, cited it for failing to broadcast required station identification
announcements over KHSN.

6\. After considering the above, we conclude that all of the violations
were willful and repeated. In this regard, the term "willful" means that
the violator knew that it was taking the action in question,
irrespective of any intent to violate the Commission's rules,[^4] while
"repeated" means more than once.[^5] In addition, we find that the
unauthorized move and use of the unauthorized antenna were not only
continuous but also intentional in that those violations continued even
after Bay knew that its operations were at variance with the Act, the
Commission's rules, and its licenses.[^6] It is axiomatic that a
licensee cannot legally engage in the activity that it wishes the
Commission to authorize until it receives approval to do so.[^7] With
respect to the apparent failure to broadcast station identification
announcements over KBBR, we find that Bay's failure was intentional in
light of its knowledge about the rule, coupled with its knowledge about
the failure of the software and the decision not to staff the station.

7\. With respect to KHSN, the violations have already been taken into
account in determining the propriety of the forfeiture imposed in the
[Forfeiture Order]{.underline}, and we think the fine in that
[Order]{.underline} is sufficient. Under the circumstances, we believe
that imposition of a separate forfeiture for unauthorized operation
after issuance of the NAL, while permissible, is unnecessary. We
conclude that an admonishment will suffice. However, with respect to
KBBR, we note that a similar problem had resulted in the failure of Bay
making station identification announcements on co-located KHSN only five
months earlier.[^8] Although Bay had recently received an NAL for such
failure, Bay chose not to staff KBBR following a repeated failure of its
automated system, thereby making it impossible to comply with the
station identification announcement rule. We conclude that the nature,
circumstances, extent and gravity of the violations, coupled with Bay's
culpability, warrants imposition of a forfeiture. In this case, we
believe the base amount of \$1,000, set by the Forfeiture Policy
Statement, is insufficient. We conclude that an upward adjustment of
\$500 is warranted for the intentional and repeated aspects of the
violation.[^9]

#### **ORDERING CLAUSES**

8\. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b) of the
Act, 47 U.S.C. § 503(b) and sections 0.111, 0.311 and 1.80(f) of the
Commission\'s rules, 47 C.F.R. §§ 0.111, 0.311 and 1.80(f), Bay
Broadcasting Corporation IS NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of one thousand five hundred dollars (\$1,500).
The forfeiture is imposed for willful and repeated violations of section
73.1201 of the Commission's rules, 47 C.F.R. § 73.1201, which requires
regular broadcasts of station identification announcements.

9\. IT IS FURTHER ORDERED that Bay Broadcasting Corporation IS
ADMONISHED for violating sections 73.1675 and 73.1690 of the
Commission's rules, 47 C.F.R. §§ 73.1675 and 73.1690, for operating with
an unauthorized antenna at an unauthorized location.

10\. IT IS FURTHER ORDERED, pursuant to section 1.80(f)(3) and (h) of
the Commission's rules, 47 C.F.R. §§ 1.80(f)(3) and (h), that Bay
Broadcasting Corporation, within 30 days of the release of this Notice
of Apparent Liability, must pay the monetary forfeiture of \$1,500 or
file a written response showing why the forfeiture should be reduced or
canceled. Any written response must include a detailed factual statement
and supporting documentation. Payment may be made by credit card through
the Commission\'s Credit and Debt Management Center at (202) 418-1995 or
by mailing a check or similar instrument, payable to the order of the
Federal Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should note the NAL /Acct. No. referenced above. Requests for full
payment under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 12th Street, S.W., Washington, D.C.
20554.[^10]

11\. IT IS FURTHER ORDERED that copies of this Notice of Apparent
Liability shall be sent by Certified Mail Return Receipt Requested to
Bay Broadcasting Corporation at P.O. Box 180, Coos Bay, Oregon 97420 and
to its counsel, Howard J. Braun, Esq. at Rosenman & Colin, LLP, 805
15^th^ Street, N.W., 9^th^ Floor, Washington, D.C. 20005-2212.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ 47 U.S.C. § 503(b)(2)(D). *See also* [The Commission's
    Forfeiture Policy Statement and Amendment of Section 1.80 of the
    Rules to Incorporate the Forfeiture Guidelines]{.underline}, 12 FCC
    Rcd 17087, 17100-01 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("[Forfeiture Policy Statement]{.underline}").

[^2]: ^?^ 47 C.F.R. §§ 73.1675, 73.1690(b)(2).

[^3]: ^?^ *See* [Forfeiture Order]{.underline}, DA 00-948, p. 2 (Enf.
    Bureau, released April 27, 2000).

[^4]: ^?^ *See* [Jerry Szoka]{.underline}, 14 FCC Rcd 9857, 9865 (1999);
    [Southern California Broadcasting Co.]{.underline}, 6 FCC Rcd 4387
    (1991).

[^5]: ^?^ *See* [Hale Broadcasting Corp.]{.underline}, 79 FCC 2d 169,
    171 (1980).

[^6]: ^?^ *See* [Supervalu, Inc.]{.underline}, DA 00-235 (Enf. Bur.,
    released February 9, 2000).

[^7]: ^?^ *See* [SouthEast Telephone Inc.]{.underline}, DA 00-325 (Enf.
    Bur., released February 22, 2000); [Andres Santos]{.underline}, 14
    FCC Rcd 6192, 6194-95 (Compl. & Inf. Bur. 1999).

[^8]: ^?^ [Id.]{.underline}, pp. 2-3.

[^9]: ^?^ *See* 47 C.F.R. § 1.80(b)(4) and accompanying Note.

[^10]: ^?^ *See* 47 C.F.R. § 1.1914.