**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) )

Burney, California )

Facility ID \# 64414 )

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted:** May 7, 2001 **Released:** May 9, 2001

By the Chief, Enforcement Bureau:

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that M.C. Allen Productions ("Allen") has apparently 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),
    Burney, California. The apparent violations include periods of
    operation at unauthorized locations and on an unauthorized
    frequency, and a failure to maintain a local or toll-free telephone
    number in its community of license. We conclude that Allen is
    apparently liable for a forfeiture in the amount of fifteen thousand
    dollars (\$15,000).

## BACKGROUND

2.  In *Application of State of Oregon*, 15 FCC Rcd 15456, 15458 n.
    13 (2000) (subsequent history omitted),[^1] the Commission referred
    to the Enforcement Bureau the question whether Station 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
    have determined that Station KMCA has maintained its main studio at
    locations authorized by the Commission's rules.[^2] However, as
    explained below, we have also determined that Allen has apparently
    violated various statutory and rule provisions in its operation of
    Station KMCA. In addition, it appears that Allen does not currently
    have authority to operate Station KMCA in Shasta on 1460 kHz.

3.  Allen holds a license to operate Station KMCA as a nondirectional AM
    station in the community of Burney on 1450 kHz. Its license was last
    renewed on July 14, 1999. Prior to that time, however, Allen had
    relocated Station KMCA to Shasta, a community some 55 miles to the
    southwest, adjacent to the larger community of Redding, California.
    Allen's only apparent authority for this move was a permit, which
    then authorized Allen to construct a new nondirectional AM station
    in Shasta. *See* File Nos. BP-19970903AA, granted June 12, 1998, and
    BMP-19980901AA, granted January 19, 1999.[^3] In this regard, the
    Commission's files reflect that Allen did not have special temporary
    authorization ("STA") to operate a broadcast station in Shasta until
    December 15, 1999. Moreover, upon expiration of that authority on
    May 30, 2000, Allen did not obtain additional STA. Rather, Allen
    continued to broadcast in Shasta as if it had such authority.
    Further, even though it did not file a license application that
    reflected completion of construction of its new directional AM
    station on 1460 kHz in accordance with its modified permit (*see*
    File No. BMP-20000324AAT, granted August 30, 2000) until February
    2000, Allen's submissions reflect that it began to broadcast Station
    KMCA on 1460 kHz upon grant of its construction permit application,
    rather than upon issuance of staff approval following submission of
    its license application. *See* File No. BL-20010227ABW. In addition,
    once Station KMCA abandoned Burney, it also ceased maintaining a
    telephone number in Burney or a toll-free number.

## DISCUSSION

4.  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 unless they receive
    authority to do otherwise upon notification to the Commission in
    Washington. Operation beyond the 30^th^ day in accordance with the
    rule can occur only if the licensee (or its representative) signs
    and submits an informal letter requesting such authority to operate
    prior to the 30^th^ day. 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 provisos are met. First, construction must be completed in
    accordance with the terms of the permit. Second, 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." Third, the applicant must
    submit a proof of performance containing exhibits required by
    section 73.186 of the Commission's rules.[^4] Finally, program test
    operations may not commence prior to issuance of staff approval. To
    date, no such approval has been given. 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.

5.  The information before us indicates that Allen had no authority to
    operate Station KMCA in Shasta between July 14, 1999 (the date its
    license for Burney was renewed) and December 15, 1999, when STA to
    broadcast in Shasta was granted. Likewise, upon expiration of its
    STA on May 30, 2000, Allen again had no authority to operate in
    Shasta and will not have such authority to broadcast on its new
    frequency (1460 kHz) until it acquires program test authority in
    accordance with section 73.1620(a)(4) of the Commission's rules. In
    short, since July 14, 1999, except for the six-month period covered
    by the STA, Allen has not operated Station KMCA in accordance with
    its license or in accordance with any other grant of authority.
    Rather, Allen has operated from an unauthorized location and, since
    August 30, 2000, operated on an unauthorized frequency. Finally,
    Allen has not maintained a local telephone number or a toll-free
    number in Burney, contrary to section 73.1125(e) of the Commission's
    rules, since its last renewal of license.

6.  Section 503(b)(1) of the Act[^5] provides that any person who
    willfully or repeatedly fails to comply with the terms and
    conditions of his license 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,[^6]
    while "repeatedly" means more than once.[^7] Considering the
    information before us, it appears that Allen knew that, for most of
    the time following renewal of license to the present, it was
    operating Station KMCA at variance from its license. In this regard,
    Allen requested STA only twice (in November 1999 and June 2000) and
    received it only once. It further appears that Allen should have
    known that its 1999 license application did not qualify for program
    test authority inasmuch as Allen acknowledged that it had not
    completed construction in accordance with the 1999 permit. Moreover,
    in light of the plain language of section 73.1620(a)(4) of the
    Commission's rules, Allen also should have known that it did not
    have program test authority to operate Station KMCA from its present
    site until it received explicit staff approval, which it does not
    yet have. It thus appears that Allen'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.
    Finally, it also appears that Allen's failure to maintain an
    appropriate telephone number in Burney was both willful and
    repeated.

7\. In assessing a forfeiture, we take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Act,[^8] 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 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.[^9] Thus, the total base amount is \$15,000. In
considering whether adjustments are appropriate, we note that Allen has
operated from its construction permit site both before obtaining STA and
after STA had expired. It thus appears that Allen's unauthorized
operation has been both intentional and continuous, criteria that
generally would warrant an upward adjustment of the forfeiture
amount.[^10] In mitigation, however, we note that Allen's main studio
violation is relatively minor in nature.[^11] On balance, we find that
\$15,000 forfeiture is appropriate.

8\. Finally, we are concerned that Allen has continued to operate
Station KMCA without appropriate authorization in apparent violation of
the Commission's rules. We hereby notify Allen that if its operation of
Station KMCA continues at Shasta without a license, program test
authority or STA after release of this Notice of Apparent Liability, it
may be necessary to institute further proceedings pursuant to Section
312 of the Act.[^12] Such proceedings could lead to issuance of an order
revoking the license for Station KMCA. In this regard, we emphasize that
the mere pendency of the license application or the filing of a request
for program test authority or STA will not suffice to avoid further
enforcement action. Rather, the license application or request for
program test authority or STA must be granted or Allen must terminate
all unauthorized operation of Station KMCA immediately. Otherwise, Allen
risks loss of the license for Station KMCA as well as additional
forfeiture penalties.

# ORDERING CLAUSES

9\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Act,[^13] and Sections 0.111, 0.311 and 1.80 of the Commission\'s
rules,[^14] M.C. Allen Productions is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of fifteen thousand dollars
(\$15,000) for: violating Section 301 of the Act and sections 73.1615
and 73. 1620 of the Commission\'s rules[^15] regarding a licensee's
operation during modification of facilities and a permittee's
commencement of program tests; and for violating section 73.1125(e) of
the Commission's rules[^16] by failing to maintain a local or toll-free
number for the community of Burney.

10\. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission\'s rules,[^17] within thirty days of this NOTICE OF APPARENT
LIABILITY, M.C. Allen Productions SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.

11\. 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.

12\. 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.

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\. 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.[^18]

15\. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail Return Receipt Requested to
M.C. Allen Productions, 4531 Shannon Place, Redding, California 96001.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: In that decision, the Commission reaffirmed the dismissal of an
    application whose proposed contour overlapped Allen'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 Allen's
    licensed facilities in Burney nor requested a waiver of section
    73.37(a). The applicant had contended, *inter alia*, that there was
    no need to protect Allen's licensed facilities because Allen had
    already relocated Station KMCA and its main studio out of Burney.
    The Commission observed that, notwithstanding Allen's alleged move,
    protection of the licensed facilities of Station KMCA was still
    appropriate in the event Allen found it impossible to construct in
    accordance with its permit, which allowed Station KMCA to construct
    a new AM station in Shasta, California. The Commission also noted
    that the applicant's allegations regarding Station KMCA's main
    studio did not justify a waiver of section 73.37(a) of the rules.

[^2]: Our investigation reveals that Station KMCA's main studio has
    always been within the principal community contour of Station
    KRRX(FM), Burney, and thus in compliance with section 73.1125(a)(2)
    of the Commission's rules, 47 C.F.R. § 73.1125(a)(2).

[^3]: We are aware that Allen filed an application for license to cover
    construction on November 5, 1999. *See* File No. BL-19991105AAZ,
    dismissed August 30, 2000. However, in that application, Allen
    responded "No" to the question: "Have all the terms, conditions, and
    obligations set forth in the above described construction permit
    been fully met?" In light of that answer, Allen did not have
    authority to conduct program tests. *See* section 73.1620(a)(1) of
    the Commission's rules, 47 C.F.R. § 73.1620(a)(1).

[^4]: 47 C.F.R. § 73.186.

[^5]: 47 U.S.C. § 503(b)(1). *See also* Section 1.80(a)(1) and (2), 47
    C.F.R. § 1.80(a)(1) and (2).

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

[^7]: *See* *Hale Broadcasting Corp.*, 79 FCC 2d 169, 171 (1980).

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: *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).

[^10]: *See WRHC Broadcasting Corp.*, Notice of Apparent Liability, 15
    FCC Rcd 5551 (Enforcement Bureau 2000).

[^11]: *See Rasa Communications Corp.*, Notice of Apparent Liability, 11
    FCC Rcd 13243 (Mass Media Bureau 1996).

[^12]: 47 U.S.C. § 312.

[^13]: 47 U.S.C. § 503(b).

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^15]: 47 U.S.C. § 301; 47 C.F.R. §§ 73.1615 and 73.1620.

[^16]: 47 C.F.R. § 73.1125(e).

[^17]: 47 C.F.R. § 1.80.

[^18]: *See* 47 C.F.R. § 1.1914.