**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

American Radio Brokers, Inc. ) File No. EB-00-AN-033

)

Licensee of Station KAXX(AM) ) NAL/Acct. No. X3278001

Eagle River, Alaska )

)

## MEMORANDUM OPINION AND ORDER 

**Adopted: March 30, 2001 Released: April 3, 2001**

By the Chief, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Memorandum Opinion and Order* ("*Order*"), we deny a
    petition for reconsideration filed by American Radio Brokers, Inc.
    ("American"), licensee of Station KAXX(AM), Eagle River, Alaska, of
    a *Forfeiture Order*[^1] which issued a \$4,000 forfeiture against
    American for willful violation of Section 1.89(b) of the
    Commission's Rules ("Rules").[^2] The noted violation involved the
    failure to respond to written Commission inquiries.

    **II. BACKGROUND**

2.  On January 21, 1999, agents from the FCC's Anchorage, Alaska
    Resident Agent Office ("Anchorage Office") inspected Station
    KAXX(AM). During the inspection, the agents observed numerous
    violations of the Commission's rules involving lack of station
    authorization or renewals, equipment performance measurements and
    logs, administrative and station files, improper transmission system
    control and tower lighting monitoring.

3.  On June 11, 1999, the Anchorage Office sent a Notice of Violation
    ("NOV") to American detailing the violations observed during the
    January 21, 1999 inspection and requiring a written response from
    American within 20 days. American did not respond to this NOV. On or
    around July 1, 1999, Chester Coleman, president and owner of
    American, called the Anchorage Office and requested an extension of
    time to respond to the NOV. The Anchorage Office orally granted the
    request. However, American did not respond to the NOV.

4.  On November 3, 1999, the Anchorage Office sent a second NOV to
    American, citing American for failing to respond to the first NOV
    and directing American to provide a response to the first NOV within
    15 days. American did not respond to the second NOV. On or around
    March 1, 2000, Mr. Coleman called the Anchorage Office on a
    unrelated matter. At this time, an agent from the Anchorage Office
    reminded Mr. Coleman that he had not yet responded to either of the
    NOVs. Mr. Coleman asked for another extension of time to respond.
    The Anchorage Office granted American a 30-day extension of time to
    respond to the NOVs and warned Mr. Coleman that failure to respond
    within 30 days could result in administrative sanctions. American
    did not respond to the NOVs within the 30-day period.

5.  On July 28, 2000,[^3] the Anchorage Office issued a *Notice of
    Apparent Liability for Forfeiture* ("*NAL*") in the amount of
    \$4,000 to American for failure to respond to written Commission
    inquiries in willful violation of Section 1.89(b) of the Rules.[^4]
    American did not respond to the *NAL*.

6.  On October 13, 2000, the Enforcement Bureau issued a *Forfeiture
    Order* assessing a \$4,000 forfeiture against American for failure
    to respond to written Commission inquiries in willful violation of
    Section 1.89(b) of the Rules. American filed a petition for
    reconsideration of the *Forfeiture Order* on November 13, 2000,
    seeking rescission of the forfeiture amount. In the petition,
    American claims that it cannot be charged with a violation of
    Section 1.89(b) because it recently responded to the NOV and
    provided an explanation as to why it was unable to respond earlier.
    American also argues that the Commission "lacks the moral authority"
    to impose forfeitures on its regulatees who violate the Rules
    because the Commission itself often fails to comply with the
    requirements of the Rules and the Communications Act of 1934, as
    amended ("Act").

    **III. DISCUSSION**

7.  We reject American's claim that it cannot be charged with a
    violation of Section 1.89(b) because it recently responded to the
    NOV and provided an explanation as to why it was unable to respond
    earlier. Section 1.89(b) of the Rules explicitly requires the
    recipient of an NOV to respond in writing to that Notice within ten
    days of receipt or any other time period specified within the NOV.
    If an answer or acknowledgement of the NOV cannot be made within the
    specified period due to "illness or other unavoidable circumstance,"
    a response still must be submitted "at the earliest practicable date
    with a satisfactory explanation of the delay."[^5] The Anchorage
    Office issued the first NOV to American on June 11, 1999. Despite
    being granted two extensions of time to respond and being explicitly
    warned that failure to respond could result in administrative
    sanctions, American did not submit a response to this NOV until
    November 9, 2000, one month after the *Forfeiture Order* was issued.
    The only explanation that American offers for this approximately 17
    month delay in responding is that "\[t\]he press of other exigent
    matters has prevented my response until now." We conclude that
    American has not provided evidence of "unavoidable circumstances"
    that would explain its 17 month delay in responding to the NOV.

8.  We also reject American's argument that the Commission "lacks the
    moral authority" to impose forfeitures on its regulatees who violate
    the Rules. Section 503(b) of the Act[^6] and Section 1.80 of the
    Rules[^7] clearly authorize the Commission to assess forfeiture
    penalties on regulatees who violate the Act or the Rules. American's
    assertions concerning the Commission's "moral authority" provide no
    basis for reconsideration of the *Forfeiture Order*. Accordingly, we
    deny its petition for reconsideration.

    **IV. ORDERING CLAUSES**

9.  **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 405 of the
    Act,[^8] and Section 1.106 of the Rules,[^9] American Radio Brokers,
    Inc.'s petition for reconsideration of the *Forfeiture Order* **IS
    DENIED**.

10. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules[^10] within 30 days 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.[^11] Payment shall
    be made 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. X3278001.
    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.[^12]

11. **IT IS FURTHER ORDERED** that, a copy of this *Order* shall be sent
    by Certified Mail Return Receipt Requested to Chester P. Coleman,
    c/o American Radio Brokers, Inc., 1255 Post Street, Suite 1011, San
    Francisco, California 94109, and to David Tillotson, Esq., 4606
    Charleston Terrace, NW, Washington, D.C. 20007-1911.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ *American Radio Brokers, Inc.*, 15 FCC Rcd 19712 (Enf. Bur.,
    2000).

[^2]: 47 C.F.R. § 1.89(b).

[^3]: ^?^ The Anchorage Office originally released the *NAL* and mailed
    it to American via certified mail return receipt requested on June
    13, 2000. The U.S. Postal Service certified mail card came back to
    the Anchorage Office unsigned on July 20, 2000, and the unclaimed
    envelope containing the *NAL* came back to the Anchorage Office on
    July 26, 2000. The Anchorage Office therefore re-released the *NAL*
    and mailed it to American via certified mail return receipt
    requested and regular first class mail on July 28, 2000. The U.S.
    Postal Service certified mail card and envelope containing the
    re-released *NAL* came back to the Anchorage Office marked "REFUSED"
    on August 9, 2000. The first class mail copy of the re-released
    *NAL* was not returned to the Anchorage Office.

[^4]: ^?^ *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    X3278001 (Enf. Bur., Anchorage Office, released July 28, 2000).

[^5]: ^?^ 47 C.F.R. § 1.89(b).

[^6]: ^?^ 47 U.S.C. § 503(b).

[^7]: ^?^ 47 C.F.R. § 1.80.

[^8]: ^?^ 47 U.S.C. § 405

[^9]: ^?^ 47 C.F.R. § 1.106.

[^10]: 47 C.F.R. § 1.80.

[^11]: 47 U.S.C. § 504(a).

[^12]: *See* 47 C.F.R. § 1.1914.