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                                Before the
                      Federal Communications Commission
                          Washington, D.C. 20554

In the Matter of                )
                                )  
Notice of Apparent Liability for Forfeiture of    )
                                )       
OSBORN ENTERTAINMENT            )  File No.  920EF0041 
ENTERPRISES CORPORATION         )       
                                )
Licensee of Microwave Station WNEU998,  )
Atlanta, Georgia                )                    
     

          NOTICE OF APPARENT LIABILITY FOR FORFEITURE

     Adopted:  September 20, 1999       Released:   September 21, 1999

By the Chief, Enforcement and Consumer Information Division,
Wireless Telecommunications Bureau:

                             I.  Introduction

     1.   In this Notice of Apparent Liability for Forfeiture ("NAL"), we find that Osborn Entertainment
Enterprises Corporation ("OEEC"), licensee of Microwave Station WNEU998, Atlanta, Georgia, acquired control
of Station WNEU998, without obtaining the requisite authority from the Commission, in apparent violation
of Section 310(d) of the Communications Act of 1934, as amended ("Act"), former Section 101.53(a) of the
Commission's Rules, and current Section 1.948 of the Commission's Rules.  We conclude that OEEC is
apparently liable for a forfeiture in the amount of six thousand dollars ($6,000). 
                                
                        II.  Background

     2.   The license for Station WNEU998 was originally issued to Osborn Sound & Communications of
Georgia, Inc. ("OSCG") on December 12, 1989. The authorization was later renewed with an expiration date of
November 24, 1999. As part of an intracorporate reorganization, OSCG dissolved on or about December 22,
1995, and its assets were merged into OEEC. Subsequently on February 20, 1997, Capstar Radio Broadcasting
Partners, Inc. ("Capstar") acquired control of OEEC through a merger of its parent company into a Capstar
subsidiary. 

     3.   On March 5, 1999, approximately three and a half years after the dissolution of OSCG, OEEC
brought this matter to the Commission's attention and filed a request for special temporary authority ("STA") to
enable OEEC to continue to operate under the license for Station WNEU998.   In addition to seeking an STA for
Station WNEU998, which was granted on March 15, 1998, OEEC filed applications on March 18, 1999 for
consent to assign and transfer the license of Station WNEU998. Those applications have since been granted. 

                        III. Discussion

     4.   Section 310(d) of the Act provides in pertinent part:

          No construction permit or Station license, or any rights thereunder, shall be transferred, assigned,
     or disposed of in any manner, voluntarily or involuntarily, directly or indirectly, or by transfer of
     control of any corporation holding such permit or license, to any person except upon application
     to the Commission and upon finding by the Commission that the public interest, convenience, and
     necessity will be served thereby.
     
Similarly, Section 1.948 of the Commission's Rules (formerly Section 101.53),  provides in pertinent part:

     Except as provided in this section, authorizations in the Wireless Radio Services may be assigned
     by the licensee to another party, voluntarily or involuntarily, directly or indirectly, or the control
     of a licensee holding such authorizations may be transferred, only upon application to and
     approval by the commission . . . ." 
     
     5.   In the instant case, the evidence reveals that control of Station WNEU998 twice changed without prior
Commission consent, in apparent contravention of Section 310(d) of the Act, and former Section 101.53, now
Section 1.948, of the Commission's Rules. The first change occurred with the unauthorized assignment of the
license on December 22, 1995, the date on which OSCG dissolved and OEEC assumed control of the license. The
second change occurred with the unauthorized transfer of control on February 20, 1997, when Capstar acquired
control of OEEC. In both instances, OEEC concedes that "by apparent oversight, no transfer application was filed
with the Commission." Such inadvertence, however, does not establish a basis for relieving OEEC of its liability
for failing to comply with statutory requirements and the Commission's rules. The Commission has held that an act
or omission is "willful" if it is a conscious act or omission whether or not there is any intent to violate the rule.

     6.  Failure to obtain Commission consent to a transfer of control is a violation for which the Commission
has long imposed monetary forfeitures.  Each day of a continuing violation is considered a separate violation for
purposes of computing a forfeiture.  The Commission's Forfeiture Policy Statement, which became effective on
October 14, 1997, provides that cases arising from facts that occurred prior to the effective date of the Forfeiture
Policy Statement shall be decided on a case-by-case basis.  Because the violations in question began in 1995, we
will determine the appropriate forfeiture using the case-by-case method. Section 503(b)(2)(D) of the Act requires
that the Commission consider "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" when assessing a forfeiture.  In Telecourier Communications Corp., 10 FCC Rcd 10014 (Wireless Tel.
Bur. 1995), the Enforcement Division of the Wireless Telecommunications Bureau imposed a $2,500 forfeiture
against a licensee that had engaged in a pro forma transfer of control of two public land mobile Stations. 

     7.  We consider the instant case to be considerably more egregious than Telecourier because this case
involves a substantial transfer of control, which occurred on February 20, 1997, when Capstar acquired control of
OEEC. The failure to obtain consent for a substantial transfer of control warrants a forfeiture substantially more
than the $2,500 forfeiture imposed in Telecourier. Indeed, we believe that it is appropriate to set the forfeiture
amount for a substantial unauthorized transfer of control at $3,000. Moreover, the previous unauthorized
assignment of the license, which occurred on December 22, 1995, is an aggravating factor. The repeated instances
of unauthorized operation continued for a significant period of time. Notwithstanding these aggravating factors, we
also recognize that OEEC voluntarily brought these matters to the Commission's attention and this mitigates the
amount of the forfeiture. Taking into consideration these and all of the other factors required by Section
503(b)(2)(D) of the Act, we believe it appropriate to propose a total forfeiture against OEEC of six thousand dollars
($6,000). 

                            IV.  Ordering Clauses

     8.  ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of
1934, as amended, Section 1.80 of the Commission's Rules, and the authority delegated in Section 0.331
of the Commission's Rules, Osborn Entertainment Enterprises Corporation is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of six thousand dollars ($6,000) for willfully
and repeatedly violating Section 310(d) of the Communications Act of 1934, as amended, and former
Section 101.53 of the Commission's Rules, now Section 1.948 of the Commission's Rules. 

     9.  IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, that within thirty
days of the release of this Notice, Osborn Entertainment Enterprises Corporation SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed
forfeiture.

     10.  IT IS FURTHER ORDERED that a copy of this Notice shall be sent by Certified Mail Return
Receipt Requested to counsel for Osborn Entertainment Enterprises Corporation, Wiley, Rein & Fielding, 1776 K
Street, N.W., Washington, D.C. 20006.  

                         FEDERAL COMMUNICATIONS COMMISSION



     
                         Catherine W. Seidel      
                         Chief, Enforcement and Consumer Information Division
                         Wireless Telecommunications Bureau