Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  | File No. 00-IH-0283          |
|                                  | *) |                              |
| **CITICASTERS CO.**              | ** | NAL/Acct. No.                |
|                                  |    | 200132080019/MG              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted:** July 13, 2001 **Released:** July 20, 2001

By the Commission:

1.  In this Order, we dismiss an application for review filed May 4,
    2001 by Citicasters Co. ("Citicasters"). Citicasters seeks review of
    a forfeiture order issued by the Chief, Enforcement Bureau.[^1] In
    that forfeiture order, the Bureau concluded that Citicasters
    willfully and repeatedly violated section 310(d) of the
    Communications Act of 1934, as amended ("Act"), 47 U.S.C. § 310(d),
    and section 73.3540(a) of the Commission\'s rules, 47 C.F.R. §
    73.3540(a), and ordered Citicasters to forfeit a total of
    twenty-five thousand dollars (\$25,000) to the United States.

2.  On February 13, 2001, the Enforcement Bureau issued a *Notice of
    Apparent Liability for Forfeiture* ("*NAL*") to Citicasters,
    proposing a \$25,000 forfeiture because it appeared that Citicasters
    had assumed control of WBTJ(FM) while acting as the station's
    programmer under a time brokerage agreement ("TBA"), in violation of
    section 310(d) of the Act and section 73.3540 of the rules.[^2]
    Citicasters did not respond to the *NAL*. Accordingly, the Bureau
    concluded that the unauthorized transfer occurred and that
    imposition of the \$25,000 forfeiture was warranted. Thus, the
    Bureau issued its forfeiture order. Citicasters thereafter filed its
    application for review.

3.  This case arose as a result of a complaint filed by Stop
    26-Riverbend, Inc. (Stop 26), the licensee of WBTJ(FM), Hubbard,
    Ohio.[^3] The gravamen of that complaint was that Citicasters had
    improperly taken control of WBTJ(FM) from Stop 26. The Bureau issued
    a letter of inquiry, which Citicasters answered. The Bureau then
    began a forfeiture proceeding through issuance of the NAL.[^4]
    Because Citicasters did not participate in the forfeiture proceeding
    prior to the filing of its application for review, section 1.115(a)
    of the Commission's rules requires Citicasters to show good cause
    why it "was not possible" for it to do so.[^5] Citicasters has not
    made the requisite good cause showing. The mere fact that it
    answered the Bureau's letter of inquiry regarding investigation of
    the complaint does not constitute participation in the forfeiture
    proceeding. We note that the Application for Review includes a
    number of arguments not raised in response to the Bureau's letter of
    inquiry in that they address the reasoning of the NAL. This is a key
    reason why parties are not entitled to sit back and not participate
    before the Bureau and wait to participate in the first instance with
    the Commission.[^6] Under these circumstances, Citicasters is barred
    from filing an application for review.

    **ORDERING CLAUSES**

4.  ACCORDINGLY, IT IS ORDERED That, pursuant to section 1.115(a) of the
    Commission's rules, 47 C.F.R. § 1.115(a), the application for review
    of the Forfeiture Order for NAL No. 200132080019/MG IS HEREBY
    DISMISSED.

5.  IT IS FURTHER ORDERED That the opposition to the application for
    review filed by Stop 26-Riverbend, Inc. IS HEREBY DISMISSED as moot.

6.  Payment of the forfeiture shall be made in the manner provided for
    in section 1.80 of the Commission's rules[^7] within 30 days of the
    date of the release of this 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(a) of
    the Act.[^8] Payment 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 full payment under an installment plan should be
    sent to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^9]

7.  IT IS FURTHER ORDERED That a copy of this Memorandum Opinion and
    Order shall be sent by Certified Mail Return Receipt Requested to
    Citicasters Co., 50 E. RiverCenter Blvd., 12^th^ Floor, Covington,
    KY 41011 and to Citicaster's counsel, Marissa G. Repp, Esq., Hogan &
    Hartson, L.L.P., 555 13^th^ Street, N.W., Washington, DC 20004-1109.

    FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

> Secretary

[^1]: *Citicasters Co.*, DA 01-823 (EB Apr. 4, 2001)(*Forfeiture
    Order)*.

[^2]: *Citicasters Co.*, DA 01-344 (EB Feb.13, 2001)(*NAL)*.

[^3]: The call sign of the station was changed to WRBP on April 10,
    2001. For consistency, we will refer to the station by its former
    call sign, WBTJ. In addition, we note that Stop 26 filed an
    opposition to Citicasters' application for review. Stop 26's
    opposition will be dismissed as moot.

[^4]: As set forth in the forfeiture order, the *NAL* was delivered by
    certified mail to Citicasters' counsel and received by counsel.
    *See* *Forfeiture Order* at ¶ 3. In addition, the forfeiture order
    was sent both to Citicasters and to its counsel of record by
    certified mail, and received by both. Citicasters also did not file
    a petition for reconsideration of the forfeiture order.

[^5]: 47 C.F.R.§ 1.115(a).

[^6]: *See also* 47 C.F.R. § 1.115(c)(requiring that matters of fact and
    law be raised in the first instance with the Bureau); *Mark H.
    Fulling*, 15 FCC Rcd 6020 (2000).

[^7]: 47 C.F.R. § 1.80.

[^8]: 47 U.S. C. § 504(a).

[^9]: *See* 47 C.F.R. § 1.1914.