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ALASKA EDUCATIONAL RADIO SYSTEM, INC

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Released: December 23, 2009

Federal Communications Commission

DA 09-2627

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
Facility ID No. 93248
)
NAL/Acct. No. MB-200941410030

Alaska Educational Radio System, Inc.

)
FRN: 0008610982
)
File No. BPED-20070516AAD
Licensee of KWMD(FM)
)
Kasilof, Alaska
)
)

ORDER AND NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: December 22, 2009

Released: December 23, 2009

By the Chief, Audio Division, Media Bureau:

I.

INTRODUCTION

1.
We have before us a Petition for Reconsideration (“Petition”), filed on March 10, 2008,
by Alaska Educational Radio System, Inc. (“AERS”). AERS seeks reconsideration of a February 5,
2008, letter decision (“Letter Decision”) by the staff of the Audio Division, Media Bureau, dismissing a
contingent community of license minor change application for Station KWMD(FM), Kasilof, Alaska
(“KWMD(FM)”), from Channel 213A at Kasilof to Channel 214A at Ridgeway, Alaska.1 Alternatively,
AERS requests waiver of Section 73.3573(g)(2) of the Commission’s Rules (“Rules”), which requires
community of license change proposals to be mutually exclusive with an applicant’s currently licensed
facilities.2
2.
For the reasons set forth below, we deny the Petition and the waiver request. We also
find AERS apparently liable for forfeiture in the amount of ten thousand dollars ($10,000) for its apparent
willful and repeated violations of Section 301 of the Communications Act of 1934, as amended (“Act”) 3
and Section 73.1350(a) of the Rules4 for operating KWMD(FM) at variance from its license.

II.

BACKGROUND

3.
Station History and STAs. On July 26, 2000, AERS received a construction permit
(“CP”) to construct a new noncommercial educational FM station at Kasilof.5 The Commission granted a
license to cover these facilities on October 20, 2003.6 Soon after the license to cover was granted, a
conflict with the owner of the transmitter site prompted AERS to submit four filings within three months:
(1) on May 4, 2004, a Special Temporary Authority (“STA”) request for KWMD(FM) to remain silent;7


1 File No. BPED-20070516AAD.
2 47 C.F.R. § 73.3573(g)(2).
3 47 U.S.C. § 301.
4 47 C.F.R. § 73.1350(a).
5 File No. BPED-19990427MB, expiration July 26, 2003.
6 File No. BLED-20030722ADR.
7 File No. BLSTA-20040504ACR (granted June 28, 2004; expired September 1, 2004). The May 4, 2004 STA
application stated that KWMD had been “silent at all or most times since September, 2003.” AERS’ counsel
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DA 09-2627

(2) on June 15, 2004, a CP application to operate KWMD(FM) at Ridgeway;8 (3) on June 18, 2004, an
STA request to operate KWMD(FM) at Ridgeway with greatly reduced power;9 and (4) on August 24,
2004, a timely request for extension of KWMD(FM)’s authority to remain silent.10
4.
AERS subsequently filed yet another STA request on September 28, 2005 (“September
2005 STA”), again to operate KWMD(FM) at Ridgeway with reduced power.11 The September 2005
STA, granted on October 26, 2005, expired on January 26, 2006. AERS admits that, due to “an
inadvertent oversight,” it failed to seek STA renewals after 2006.12 On February 13, 2008, nearly two
years after the previous STA expired, it filed a request for an extension of the September 2005 STA.13
The extension request was denied on May 7, 2008.14 AERS filed its latest STA request that day (“May
2008 STA Request”), seeking temporary authority to operate from Ridgeway while AERS looked for a
new transmitter site.15
5.
COL Applications. On July 13, 2007, AERS filed three contingent minor change
applications for KABN(FM), KWMD(FM), and KRAW(FM) (collectively, “COL Applications”).16 In
the COL Applications, AERS proposed to change the stations’ frequencies, and to change the
communities of license for KABN(FM) and KWMD(FM) to Ridgeway.17 Commission staff found that
KABN(FM)’s proposed community of license change did not comply with the Rule requirement that the





Michael Couzens wrote in a follow-up email to the Commission that AERS representatives had operated under the
assumption that noncommercial licensees did not have minimum hour requirements. Approximately nine months
passed before AERS alerted the Commission to KWMD’s silence.
8 File No. BPED-20040312AAA (granted July 30, 2004; expired July 30, 2007. Permit cancelled.)
9 File No. BSTA-20040621ACV (granted August 3, 2004; expired November 3, 2004). AERS’ original CP
authorized it to operate KWMD at Kasilof with effective radiated power (“ERP”) of 0.5 kilowatts. The license to
cover authorized .31 kW. CP BPED-20040312AAA authorized a change in transmitter site, a change in frequency
and ERP of 4 kilowatts. This STA permits operation of KWMD with .31 kilowatts.
10 File No. BLSTA-20040824AGX (granted August 26, 2004; expired February 26, 2005).
11 File No. BSTA-20050928AJX (expired January 26, 2006). AERS stated in its September 2005 STA that it had
resumed broadcasting from the Ridgeway facility on June 19, 2005 (See File No. BSTA-20050928AJX, Exhibit 24)
(apparently the Station was silent from January 26, 2005, until June 19, 2005). By its own admission, AERS waited
nearly four months before filing the September 2005 STA. See File No. BRED-20050929AAP, Exhibit 6 (noting
that its last STA to operate from Ridgeway was granted on August 3, 2004 (with a November 3, 2004 expiration),
and that “due to oversight” it had failed to file an extension request until September, 2005).
12 Petition at 2.
13 BESTA-20080213ADM (denied).
14 Staff denied this request because the extension was based on an expired STA. See Letter from Charles N. Miller,
Engineer, Audio Division, Media Bureau, to Lewis Leonard, Alaska Educational Radio System, Inc. (May 7, 2008).
15 File No. BSTA-20080508ACJ (accepted for filing May 9, 2008).
16 File Nos. BPED-20070516AAD, BPED-20070516AAB and BPED-20070516AAC, respectively. On January 24,
2008, AERS requested STA to continue operations at Ridgeway pending the community of license change to
Ridgeway. Staff denied the application because the requested contour extended substantially beyond KWMD’s
licensed contour at Kasilof. (See Letter from Charles N. Miller, Engineer, Audio Division, Media Bureau, to Lewis
Leonard, Alaska Educational Radio System, Inc. (Jan. 28, 2008.))
17 Petition at 3. The COL Applications were an attempt to “bring an existing operation into compliance with the
rules.” Id.
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Federal Communications Commission

DA 09-2627

proposed facilities be mutually exclusive with the station’s currently licensed facilities. Therefore, the
staff dismissed the COL Applications.18 AERS subsequently filed the instant Petition.19

III.

DISCUSSION

6.
Petition for Reconsideration. The Commission will consider a petition for
reconsideration only when the petitioner demonstrates that there was a material error or omission in the
underlying order or raises additional facts not known or not existing until after the petitioner’s last
opportunity to present such matters.20 AERS has not met this burden.
7.
AERS states in the Petition that the Commission erred in its evaluation of the COL
Applications because it misunderstood AERS’ proposal.21 In evaluating the COL Applications under
Section 73.3573(g) of the Rules,22 Commission staff compared the proposed facility at Ridgeway to
KABN(FM)’s currently licensed facilities at Kasilof and concluded that they were not mutually exclusive.
AERS claims that the staff instead should have compared the proposed facilities with those from which it
was currently operating at Ridgeway. AERS argues that, had it taken this approach, the staff would have
concluded that the facilities were mutually exclusive, and now urges us to adopt such an approach when
reconsidering KWMD(FM)’s dismissed community of license change application.
8.
Section 73.3573(g) of the Rules states that “facilities specified by the applicant at the
proposed community of license must be mutually exclusive …with the applicant’s current facilities .…”23
AERS argues that a portion of the Commission’s 2006 Report and Order on city of license
modifications24 supports its claim that the Ridgeway facilities can be “current facilities” for purposes of
Section 73.3573 of the Rules.25 However, the excerpt pertains to permittees’ “current permitted
facilities” (emphasis added), which AERS lacks because the permit had expired by the time the
Commission evaluated the COL Applications.26 Assuming arguendo that AERS had a current temporary
authorization to operate either KWMD(FM) or KABN(FM) from Ridgeway when it filed the COL
Applications, using STA facilities as the basis for a permanent community of license change runs contrary
to the nature of STA. STA is not a means by which a licensee/permittee may enhance its facility or make
operation more convenient for the broadcaster. Special Temporary Authorities by nature are temporary


18 47 C.F.R. § 73.3573(g)(2). See Letter from Rodolfo F. Bonacci, Assistant Chief, Audio Division, Media Bureau,
to Alaska Educational Radio System, Inc. (Feb. 5, 2008) (citing 47 C.F.R. 73.3517(e), which states that dismissal of
any one of the related applications as unacceptable will result in the dismissal of all the related applications).
19 AERS shortly thereafter filed the May 2008 STA Request for permission to operate from the same facilities as
those proposed in the dismissed COL Application. File No. BSTA-20080508ACJ, Attachment 24. AERS claimed
that KWMD and KABN(FM)’s operations were in jeopardy due to the dismissal of the COL Application. It further
stated that the “best course is to resume operation at the existing site, while steps are taken to design a new move
(with new location if necessary) that will be fully within the rules and regulations…” Id.
20 47 C.F.R. § 1.106(b)(2).
21 Petition at 1.
22 47 C.F.R. § 73.3573(g).
23 47 C.F.R. § 73.3573(g).
24 See Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of
License in the Radio Broadcast Services
Report and Order, 21 FCC Rcd 14212, 14219 (2006) (“2006 COL R&O”).
The excerpt reads: “Accordingly, any application proposing a community of license change filed by a permittee that
has not built its current permitted facilities and that is not mutually exclusive with either the applicant's built and
operating facilities or its original allotment shall be returned as unacceptable for filing.”
25 47 C.F.R. § 73.3573.
26 The permit (File No. BPED-20040312AAA) expired July 30, 2007. The Commission denied the COL
Applications on February 5, 2008.
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DA 09-2627

and are not intended for extended use.27 Because AERS has not made any showing of error in the Letter
Decision, nor has it presented any new facts of which the staff was unaware at the time it made its
decision to deny the COL Applications, we deny the Petition.
9.
In the alternative, AERS asks us to waive Section 73.3573(g)(2) of the Rules to allow
KWMD(FM) to change its community of license to Ridgeway despite the fact that its proposal is not
mutually exclusive with its current licensed facilities at Kasilof.28 AERS asserts that it has operated
KWMD(FM) at Ridgeway for years and may have to cease operation if the waiver is not granted. It
maintains that a waiver grant would allow it to continue a service it has provided “for years” and to “bring
an existing operation into compliance with the rules.”29 The Commission allows waiver of any Rule if the
public interest warrants deviation from the Rules.30 Waiver is warranted when the policy underlying the
rule is better served by waiver than rule compliance.31 We do not find that the public interest is served by
a waiver in this case.
10.
The Commission enacted Section 73.3573 of the Rules to allow stations to change
community of license without opening their applications to competition.32 This requirement was
established in order to ease applicants’ ability to propose new communities of license without
compromising the station’s allotment or interference protection.33 We do not find this to be a
circumstance in which the reason for the rule is better served via waiver. The longevity of KWMD(FM)’s
STA (and later, unauthorized) operation at Ridgeway does not create any right to continue such
operation.34 In addition, AERS’ public interest waiver arguments do not overcome the Commission’s
broader duty to ensure allotments are protected from interference and are awarded fairly and equitably in
the public interest. We therefore deny AERS’ waiver request.
11.
Notice of Apparent Liability. Section 301 of the Act and Section 73.1350 of the Rules
prohibit the operation of a broadcast station except under, and in accordance with, a Commission-granted


27 See 47 C.F.R. § 73.1635. See Communications and Control, Inc., Memorandum Opinion and Order, 15 FCC Rcd
5428, 5434 (2000) and Amendment of Part 90 of the Commission’s Rules to Provide for the Use of the 220-222 MHz
Band by the Private Land Mobile Radio Service
, Memorandum Opinion and Order on Reconsideration, 13 FCC Rcd
14569, 14649 and 14653 (1998) (grant of STA does not confer permanent right to operate).
28 47 C.F.R. § 73.3573(g)(2).
29 Petition at 3.
30 See, Rivers, L.P. c/o Frank Jazzo, Esq., Letter, 23 FCC Rcd 4523 (citing Northeast Cellular Telephone Co. v.
FCC
, 897 F.2d 1164, 1166 (D.C. Cir. 1990)(“Rivers Letter”)).
31 See WAIT Radio v. FCC, 418 F.2d 1153, 1156-57 (DC Cir. 1969) (Commission may waive any provision of its rules
if it determines that good cause has been shown and that grant of the waiver does not undermine the policies set
forth by the rule).
32 See Rivers Letter, 23 FCC Rcd at 4523 (interpreting the 1989 Community of License Report and Order as
protecting applicants’ existing authorizations while allowing applicants to propose new communities of license
without opening said applications to competition). See Amendment of the Commission’s Rules Regarding
Modification of FM and TV Authorizations to Specify a New Community of License
, Report and Order, 4 FCC Rcd
4870, 4873 (1989). See also 2006 COL R&O, 21 FCC Rcd at 14219 (stating, “Accordingly, we will amend the
Commission's rules to provide a procedure whereby a licensee or permittee may petition the Commission for an
amendment to the FM and television tables of allotments, and modification of its license accordingly, without
placing its existing authorization at risk. The procedure is limited to situations in which the new allotment would be
mutually exclusive with the existing allotment and will not apply to nonadjacent channel upgrades” (citations
omitted).
33 Rivers Letter, 23 FCC Rcd at 4523 (citing Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 330-33 (1945)
(“Ashbacker”)
34 See 47 C.F.R. § 73. 1635. See also n. 27, supra.
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DA 09-2627

authorization.35 Recent filings indicate that AERS has not operated KWMD(FM) in accordance with the
Rules and the Act since the September 2005 STA expired on January 26, 2006.36 Nevertheless, despite
the absence of STA or any other authority, the Petition contains multiple admissions of continued
operation without authorization at Ridgeway. First, it admits that, due to “an inadvertent oversight,”
AERS failed to seek STA renewals after 2006;37 second, it reveals that KWMD(FM) has been operating
from the Ridgeway tower “for years”38 and third, it states that filing the COL Applications was an attempt
to “bring an existing operation into compliance with the rules.”39 Finally, the May 2008 STA Request
indicates that AERS decided, despite the COL Applications’ dismissal, to continue broadcasting
KWMD(FM) from Ridgeway. 40 Given these admissions, we find that Licensee apparently willfully and
repeatedly violated Section 301 of the Act and Section 73.1350 of the Rules by engaging in unauthorized
operation of the Station from at least January 2006 to the present.
12.
This NAL is issued pursuant to Section 503(b)(1)(B) of the Act.41 Under that provision,
any person who is determined by the Commission to have willfully or repeatedly failed 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.42 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.43 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,44 and the Commission has so interpreted the term in the Section
503(b) context.45 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.”46
13.
In determining the appropriate forfeiture amount, we must consider the factors
enumerated in the Commission’s Forfeiture Policy Statement and 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.”47


35 See 47 U.S.C. § 301; 47 C.F.R. § 73.1350.
36 File No. BSTA-20050928AJX.
37 Petition at 2.
38 Petition at 3.
39 Id.
40 File No. BSTA-20080508ACJ, Attachment 24. AERS wrote, “Licensee concluded [after the Commission’s
denial of the COL Application] that the best course is to resume operation at the existing site [Ridgeway], while
steps are taken to design a new move (with new location if necessary) that will be fully within the rules and
regulations or, if not, with such waivers as may be required with a detailed public interest justification.”
41 47 U.S.C. § 503(b)(1)(B).
42 Id. See also 47 C.F.R. 1.80(a)(1).
43 47 U.S.C. § 312(f)(1).
44 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
45 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).
46 47 U.S.C. § 312(f)(2).
47 47 U.S.C. § 503(b)(2)(D); see also The Commission’s Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines,
Report and Order, 12 FCC Rcd 17087 (1997), recon.
denied,
15 FCC Rcd 303 (1999).
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DA 09-2627

14.
Here, AERS has operated KWMD(FM) at the Ridgeway facility without authorization
since 2006. While we are barred by the statute of limitations from issuing a forfeiture for violations
occurring before the license for KWMD(FM) was renewed on February 24, 2006, we may consider
KWMD(FM)’s history of unauthorized broadcasts from Ridgeway and other apparent Rule violations
when determining the proposed forfeiture amount.48 Thus, 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 $10,000 amount for AERS’ willful and repeated violations of Section 301 of the Act
and Section 73.1350 of the Rules.49

IV.

CONCLUSION

.
15.
For the reasons discussed above, we deny the Petition and the waiver request. We also
propose a forfeiture of $10,000 for operation of KWMD(FM) at the Ridgeway facility from January 26,
2006, to the present.
16.
Accordingly, IT IS ORDERED that Alaska Educational Radio System, Inc.’s March 10,
2008, Petition for Reconsideration IS DENIED.
17.
IT IS FURTHER ORDERED that Alaska Educational Radio System, Inc. must either
resume operations from its authorized Kasilof site or file an appropriate request for silent authority within
thirty days of the release date of this Order.
18.
IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act50 and Sections
0.111, 0.311 and 1.80 of the Rules,51 Alaska Educational Radio System, Inc. IS hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($10,000) for the
willful and repeated violation of Section 301 of the Act and Section 73.1350 of the Rules.
19.
IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,52 within thirty
days of the release date of this Notice of Apparent Liability for Forfeiture, Alaska Educational Radio
System, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
20.
Payment of the forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must include the NAL/Account Number
and FRN Number referenced above. Payment by check or money order may be mailed to Federal
Communications Commission, 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.


48 In assessing a forfeiture, Section 503(b)(2)(D) of the Act requires that we take into account “any history of prior
offenses.” However, Section 503(b)(6) of the Act prohibits us from imposing a forfeiture for any violations that
occurred prior to the date of commencement of the current term of license. (47 U.S.C. § 503(b)(2)(D)) Here, we
consider three instances of operation of KWMD at a variance from its license prior to the station’s license renewal.
First, between September 2003, and June 2004, it appears that KWMD was, for the most part, silent. See n.7, supra.
However, AERS failed to file an STA or a notice to the Commission to reflect the station’s silent status, as required
by Sections 73.1635 and 73.1740 of the Rules. (47 C.F.R. § 73.1635 and 47 C.F.R. § 73.1740). Second, KWMD
was apparently silent between February 26, 2005, and June 19, 2005, again without seeking a silent STA or
providing notice to the Commission, as required by Section 73.1740 of the Rules. (47 C.F.R. § 73.1635 and 47
C.F.R. § 73.1740). See n.11, supra. Finally, AERS apparently operated KWMD’s unauthorized facilities at
Ridgeway without Commission authorization from June 19, 2005, until October 26, 2005, in violation of Section
301 of the Act. (47 U.S.C. § 301). See n.11, supra.
49 47 U.S.C. § 301. 47 C.F.R. § 1.80.
50 47 U.S.C. § 503(b).
51 47 C.F.R. §§ 0.111, 0.311, and 1.80.
52 47 C.F.R. § 1.80.
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Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When 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). Requests for full payment under an installment plan should be sent to: Chief
Financial Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554.
Please contact the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Alaska Educational Radio
System, Inc. will also send electronic notification on the date said payment is made to
Jacqui.Johnson@fcc.gov and JoAnn.Lucanik@fcc.gov.
21.
The response, if any, must be mailed to the Office of the Secretary, Federal
Communications Commission, 445 12th Street, SW, Washington, DC 20554, ATTN: Enforcement
Bureau -- Spectrum Enforcement Division, and must include the NAL/Acct. No. referenced in the
caption.
22.
The Commission will not consider reducing or canceling a forfeiture in response to a
claim of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three-
year period; (2) financial statements prepared according to generally accepted accounting practices; or (3)
some other reliable and objective documentation that accurately reflects the petitioner'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.
23.
IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for
Forfeiture shall be sent by certified mail, return receipt requested, to Alaska Educational Radio System,
Inc., c/o Lewis Leonard, P.O. Box 75, Girdwood, AL 99587-0075.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau
7

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