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 Federal  Communications  Commission  DA  01-  811 
 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  Commissions  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  FCCs  Anchorage,  Alaska  Resident  Agent  Office 
 (  Anchorage  Office)  inspected  Station  KAXX(  AM).  During  the  inspection,  the  agents  observed 
 numerous  violations  of  the  Commissions  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 

 1  American  Radio  Brokers,  Inc.,  15  FCC  Rcd  19712  (Enf.  Bur.,  2000). 
 2  47  C.  F.  R.    1.89(  b). 
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 Federal  Communications  Commission  DA  01-  811 
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 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  Americans  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. 

 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). 
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 Federal  Communications  Commission  DA  01-  811 
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 8.  We  also  reject  Americans  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.  Americans  assertions  concerning  the  Commissions  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 

 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. 
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