**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Application of             | *  | Facility I.D. No. 60705      |
|                                  | *) |                              |
| **Snow College**                 | ** | NAL/Acct. No.                |
|                                  |    | MB-200841410023              |
| For Renewal of License for       | *  |                              |
|                                  | *) | FRN: 0012712576              |
| Station KAGJ(FM)                 | ** |                              |
|                                  |    | File No. BRED-20070221ABF    |
| Ephraim, Utah                    | *  |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: May 8, 2008 Released: May 9, 2008**

By the Chief, Audio Division, Media Bureau:

**I. INTRODUCTION**

1.  The Commission has before it the captioned application of Snow
    College (the "Licensee"), for renewal of its license for
    noncommercial educational Station KAGJ(FM), Ephraim, Utah (the
    "Station"). In this *Memorandum Opinion and Order and Notice of
    Apparent Liability for Forfeiture ("NAL")* issued pursuant to
    Sections 309(k) and 503(b) of the Communications Act of 1934, as
    amended (the "Act"), and Section 1.80 of the Commission's Rules (the
    "Rules"),[^1] by the Chief, Audio Division, Media Bureau, by
    authority delegated under Section 0.283 of the Rules,[^2] we find
    that the Licensee apparently willfully violated Section 73.3539 of
    the Rules,[^3] by failing to file a timely license renewal
    application for the Station, and apparently willfully and repeatedly
    violated Section 301 of the Act,[^4] by engaging in unauthorized
    operation of the Station after its authorization had expired. Based
    upon our review of the facts and circumstances before us, we
    conclude that the Licensee is apparently liable for a monetary
    forfeiture in the amount of seven thousand dollars (\$7,000), and we
    grant the captioned KAGJ(FM) renewal application.

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II. **BACKGROUND**

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2.  Section 73.3539(a) of the Rules requires that applications for
    renewal of license for broadcast stations must be filed "not later
    than the first day of the fourth full calendar month prior to the
    expiration date of the license sought to be renewed."[^5] An
    application for renewal of KAGJ(FM) license should have been filed
    by June 1, 2005. No such application was filed, and the Station's
    license expired on October 1, 2005. In fact, the Licensee did not
    file an application to renew the Station's license until February
    21, 2007.

3.  On February 12, 2007, the licensee filed a request for special
    temporary authorization ("STA") to continue Station operations
    pending consideration of the untimely KAGJ(FM) renewal
    application.[^6] The staff granted the STA Request on April 2, 2007,
    and it was to expire on October 2, 2007.[^7] The Licensee filed a
    timely request for extension of the STA on October 2, 2007, which
    remains pending.[^8] In the STA Request, the Licensee indicated that
    due to an oversight, the faculty member who was responsible for FCC
    compliance neglected to file a timely license renewal application
    for the Station. The Licensee further explains that it believed it
    had filed the license renewal application on September 23, 2005,
    eight days prior to the expiration date, but later realized that the
    license renewal application had not actually been filed.

    **III. DISCUSSION**

    3\. *Proposed Forfeiture.* In this case, the Licensee has failed to
    file a timely license renewal application for the Station, as
    required by Section 73.3539(a) of the Rules. Moreover, it continued
    operating the Station for more than 16 months after the license had
    expired on October 1, 2005, before filing the appropriate renewal
    application and request for STA to so operate, in violation of
    Section 301 of the Act. Notwithstanding the Licensee's explanation
    that its failure to file a timely renewal application for KAGJ(FM)
    was inadvertent, licensees are obligated to comply fully with the
    Rules, including timely filing the station's renewal application and
    maintaining in effect the station's authorization.[^9] Here, the
    Licensee did not do so.

    4\. This *NAL* is issued pursuant to Section 503(b)(1)(B) of the
    Act. Under that provision, any person who is determined by the
    Commission to have failed willfully or repeatedly to comply with any
    provision of the Act or any rule, regulation, or order issued by the
    Commission shall be liable to the United States for a forfeiture
    penalty.[^10] Section 312(f)(1) of the Act defines willful as "the
    conscious and deliberate commission or omission of \[any\] act,
    irrespective of any intent to violate" the law.[^11] The legislative
    history to Section 312(f)(1) of the Act clarifies that this
    definition of willful applies to both Sections 312 and 503(b) of the
    Act,[^12] and the Commission has so interpreted the term in the
    Section 503(b) context.[^13] Section 312(f)(2) of the Act provides
    that "\[t\]he term 'repeated,' when used with reference to the
    commission or omission of any act, means the commission or omission
    of such act more than once or, if such commission or omission is
    continuous, for more than one day."[^14]

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5.  The Commission\'s *Forfeiture Policy Statement* and Section
    1.80(b)(4) of the Rules establish a base forfeiture amount of
    \$3,000 for the failure to file a required form.[^15] The guidelines
    also specify a base forfeiture amount of \$10,000 for construction
    and/or operation without an instrument of authorization for the
    service.[^16] In determining the appropriate forfeiture amount, we
    may adjust the base amount upward or downward by considering the
    factors enumerated in Section 503(b)(2)(D) of the Act, including
    "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."[^17]

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4.  In this case, the Licensee failed to file a timely renewal
    application and continued Station operations for sixteen months
    after the Station's license had expired on October 1, 2005, before
    filing the appropriate renewal application and a request for STA to
    so operate. Nevertheless, because it had previously been licensed to
    operate Station KAGJ(FM), the latter transgression is not comparable
    to \"pirate\" wireless operations, which typically have been subject
    to forfeitures of approximately \$10,000. Taking into consideration
    these facts and all of the factors required by Section 503(b)(2)(D)
    of the Act and the *Forfeiture Policy Statement*, we propose a
    forfeiture for the full \$3,000 amount for the failure to timely
    file the renewal application and STA request, but reduce the
    proposed forfeiture for the unauthorized operation from the \$10,000
    base amount to \$4,000.[^18] Thus, we propose a forfeiture in the
    total amount of \$7,000.

5.  *License Renewal Application.* In evaluating an application for
    license renewal, the Commission's decision is governed by Section
    309(k) of the Act.[^19] That section provides that if, upon
    consideration of the application and pleadings, we find that (1) the
    station has served the public interest, convenience, and
    necessity; (2) there have been no serious violations of the Act or
    the Rules; and (3) there have been no other violations which, taken
    together, constitute a pattern of abuse, we are to grant the renewal
    application.[^20] If, however, the licensee fails to meet that
    standard, the Commission may deny the application -- after notice
    and opportunity for a hearing under Section 309(e) of the Act -- or
    grant the application "on terms and conditions that are appropriate,
    including a renewal for a term less than the maximum otherwise
    permitted."[^21]

6.  We find that the Licensee's violations of Section 73.3539 of the
    Rules and Section 301 of the Act do not constitute "serious
    violations" warranting designation for evidentiary hearing.
    Moreover, we find no evidence of violations that, when considered
    together, evidence a pattern of abuse.[^22] Further, we find that
    Station KAGJ(FM) served the public interest, convenience, and
    necessity during the subject license term. We will, therefore, grant
    the license renewal application below.

**IV. ORDERING CLAUSES**

7.  Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Section 1.80 of the
    Commission's Rules, that Snow College is hereby NOTIFIED of its
    APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand
    dollars (\$7,000) for its apparent willful violation of Section
    73.3539 of the Commission's Rules and apparent willful and repeated
    violation of Section 301 of the Communications Act of 1934, as
    amended.

8.  IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    Rules, that, within thirty (30) days of the release date of this
    *NAL,* Snow College SHALL PAY the full amount of the proposed
    forfeiture or SHALL FILE a written statement seeking reduction or
    cancellation of the proposed forfeiture.

9.  Payment of the proposed forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission.  The payment must include the NAL/Acct. No. and FRN No.
    referenced in the caption above.  Payment by check or money order
    may be mailed to Federal Communications Commission, at P.O. Box
    979088, St. Louis, MO  63197-9000.  Payment by overnight mail may be
    sent to U.S. Bank---Government Lockbox #979088, SL-MO-C2-GL, 1005
    Convention Plaza, St. Louis, MO  63101.  Payment by wire transfer
    may be made to ABA Number 021030004, receiving bank: TREAS NYC, BNF:
    FCC/ACV\--27000001 and account number as expressed on the remittance
    instrument.  If completing the FCC Form 159, enter the NAL/Account
    number in block number 23A (call sign/other ID), and enter the
    letters "FORF" in block number 24A (payment type code).

10. The response, if any, must be mailed to Office of the Secretary,
    Federal Communications Commission, 445 12^th^ Street, S.W.,
    Washington D.C. 20554, ATTN: Peter H. Doyle, Chief, Audio Division,
    Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.

11. 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.

12. Requests for full payment of the forfeiture proposed in this *NAL*
    under the installment plan should be sent to: Associate Managing
    Director-Financial Operations, 445 12th Street, S.W., Room 1-A625,
    Washington, D.C. 20554.[^23]

13. IT IS FURTHER ORDERED, pursuant to Section 309(k) of the
    Communications Act of 1934, as amended, that the license renewal
    application of Snow College for noncommercial educational Station
    KAGJ(FM),Ephraim, Utah (File No. BRED-20070221ABF) IS GRANTED.

14. IT IS FURTHER ORDERED that a copy of this *NAL* shall be sent, by
    First Class and Certified Mail-Return Receipt Requested, to Snow
    College, 150 East College Avenue, Ephraim, Utah

    84627, and to its counsel, Shelley Sadowsky, Esquire, Katten Muchin
    Rosenman, LLC, 1025 Thomas Jefferson Street, Suite 700 East Lobby,
    Washington, DC 20007.

FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: 47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80.

[^2]: *See* 47 C.F.R. § 0.283.

[^3]: *See* 47 C.F.R. § 73.3539.

[^4]: *See* 47 U.S.C. § 301.

[^5]: 47 C.F.R. § 73.3539(a).

[^6]: *See* File No. BLSTA-20070212BAN (the "STA Request").

[^7]: *Letter to Shelley Sadowsky, Esquire*, Ref. 1800B3 (Chief, Audio
    Division, Media Bureau, Apr. 2, 2007).

[^8]: *See* File No. BELSTA-20071002ABZ.

[^9]: *See, e.g, Hemmingford Media, Inc*., Forfeiture Order, 14 FCC Rcd
    2940, 2941-2 (CIB 1999) (responsibility for complying with terms of
    station license "rests solely and exclusively with the licensee")
    (citing *Empire Broadcasting Corp*., Memorandum Opinion and Order,
    25 FCC 2d 68 (1970).

[^10]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. 1.80(a)(1).

[^11]: 47 U.S.C. § 312(f)(1).

[^12]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^13]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^14]: 47 U.S.C. § 312(f)(2).

[^15]: *See Forfeiture Policy Statement and Amendment of Section 1.80(b)
    of the Rules to Incorporate the Forfeiture Guidelines,* Report and
    Order, 12 FCC Rcd 17087, 17113-15 (1997) (\"*Forfeiture Policy
    Statement*\"), *recon. denied*, 15 FCC Rcd 303 (1999); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section I.

[^16]: A broadcast station requires an authorization from the Commission
    to operate. *See* 47 U.S.C. § 301.

[^17]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement,*
    12 FCC Rcd at 17100; 47 C.F.R. § 1.80(b)(4).

[^18]: *See, e.g., Discussion Radio Incorporated*, Memorandum Opinion
    and Order, 19 FCC Rcd 7433, 7438 (2004); *Gospel Media, Inc*.,
    Letter, 19 FCC Rcd 15600 (MB 2004). Although in *Gospel Media*, the
    Bureau imposed a proposed forfeiture of \$3,000 for unauthorized
    operation, the unauthorized operation lasted only two weeks. The
    \$4,000 forfeiture proposed here for unauthorized operation is
    analogous to use of an unauthorized frequency by a land mobile
    station holding a license for a different frequency. *See, e.g., In
    the Matter of Dave Mitchell,* 20 FCC Rcd (EB 2005); *In the Matter
    of Joselyn Gordon*, Forfeiture Order, 19 FCC Rcd 23557 (EB 2004).

[^19]: 47 U.S.C. § 309(k).

[^20]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read
    as described by Section 204(a) of the Telecommunications Act of
    1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^21]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^22]: For example, we do not find here that the Licensee\'s operation
    of the Station \"was conducted in an exceedingly careless, inept and
    negligent manner and that the Licensee is either incapable of
    correcting or unwilling to correct the operating deficiencies.\"
    *See Heart of the Black Hills Stations*, Decision, 32 FCC 2d 196,
    198 (1971). Nor do we find on the record here that \"the number,
    nature and extent\" of the violations indicate that \"the Licensee
    cannot be relied upon to operate \[the station\] in the future in
    accordance with the requirements of its licenses and the
    Commission\'s Rules.\" *Heart of the Black Hills Stations*, 32 FCC
    2d at 200. *See also Center for Study and Application of Black
    Economic Development*, Hearing Designation Order, 6 FCC Rcd 4622
    (1991), *Calvary Educational Broadcasting Network, Inc*., Hearing
    Designation Order, 7 FCC Rcd 4037 (1992).

[^23]: *See* 47 C.F.R. § 1.1914.