11 FCC Red No. 3 Federal Communications Commission Record FCC 96-8

we are to consider the degree of culpability, any history of Before the prior offenses, ability to pay, and such other matters as Federal Communications Commission justice may require. Section 503(b)(2)(D) of the Commu­ , D.C. 20554 nications Act of 1934, as amended, 47 U.S.C. § 503(b)(2)(D). In Eagle, we found that the noted EEO violations occurred between March 1, 1987 and July 31, In the Matter of 1990, while Bakcor was licensee. On May 22, 1991, Elam became trustee in bankruptcy for Bakcor to serve as a DENNIS ELAM, TRUSTEE FOR Chapter 7 trustee. See Eagle, 9 FCC Red at 845 n.13. On May 31, 1991, Elam filed applications to have the Bakcor BAKCOR BROADCASTING, INC., licenses assigned to him. (File Nos. BAL-910531ED and DEBTOR BALH-910531EE). The Commission granted those applica­ tions on July 11, 1991. Thus, by the time the NAL was Former licensee of issued in 1994, Elam, not Bakcor, was licensee of the Stations KMND(AM)/KNFM(FM) stations. Midland, 5. In TransNational Network, Inc., 52 RR 2d 1321 (1982), the Commission reduced a forfeiture imposed by the Com­ For Forfeiture mon Carrier Bureau from $8,000 to $100 because, subse­ quent to the issuance of the forfeiture order, the violator had filed a petition for bankruptcy. The Commission re­ MEMORANDUM OPINION AND ORDER duced the forfeiture, holding that a reduction would permit more compensation to flow to creditors. Here, unlike Adopted: January 18, 1996; Released: February 2, 1996 TransNational, the violator, Bakcor, is no longer associated with the stations. Moreover, unlike TransNational, the bankruptcy proceeding here looks toward the sale of the By the Commission: stations to parties other than the bankruptcy debtor in order to satisfy creditors' claims. 1 To require payment by 1. The Commission has under consideration: (1) its Elam here would punish innocent creditors of the former Memorandum Opinion and Order and Notices of Appar­ licensee and serve no public interest purpose. ent Liability in Eagle Radio, Inc., 9 FCC Red 836 (1994) 6. Accordingly, IT IS ORDERED, that, pursuant Section ("Eagle"); and (2) a response to the Notice of Apparent 503(B) of the Communications Act of 1934, as amended, Liability ("NAL") filed by Dennis Elam, Trustee for 47 U.S.C. Section 503(b), the forfeiture to Dennis Elam, Bakcor Broadcasting, Inc., Debtor ("Elam"). For the rea­ Trustee for Bakcor Broadcasting, Inc., Debtor, IS sons that follow, we rescind the proposed forfeiture to RESCINDED. Elam. 7. IT IS FURTHER ORDERED that the Mass Media 2. In Eagle, we issued an NAL for $25,000 to Elam Bureau send by Certified Mail -- Return Receipt Request­ because information before us indicated that Bakcor ed, copies of this Memorandum Opinion and Order to: Broadcasting, Inc. ("Bakcor"), the former licensee of Sta­ tions KMND(AM)/KNFM(FM), had wilfully and/or repeat­ edly violated Section 73.2080 of the Commission's Rules Dennis Elam, Trustee during the 1983-1990 license terms for the stations. We c/o Linda Eckard, Esquire arrived at the amount of the forfeiture by referring to the guidelines set forth in Standards for Assessing Forfeitures for Roberts & Eckard, P.C. Violations of EEO Rules, 9 FCC Red 929 (1994) ("EEO 1919 Pennsylvania Avenue, N.W., Suite 222 Policy Statement") (petitions for reconsideration and clari­ Washington, D.C. 20006. fication pending). 3. In seeking rescission of the forfeiture, Elam notes that FEDERAL COMMUNICATIONS COMMISSION all of the apparent rule violations occurred while Bakcor was operating the stations and that he had no involvement whatsoever with the stations during that period. Elam al­ leges that payment of a forfeiture would harm innocent creditors of the former licensee by reducing the amount of 'money available to them. He further contends that, absent William F. Caton a properly filed claim with the Bankruptcy Court and Acting Secretary authorization therefrom to make the payment, he has no authority to pay a forfeiture. Finally, Elam submits that retroactive application of the EEO Policy Statement is im­ proper. 4. In determining a forfeiture, we are required to take into account the nature, circumstances, extent and gravity of the violation. In addition, with respect to the violator,

1 Indeed, such sales occurred. On September 21. 1994, the 940712EB). Commission records reflect that the assignments Commission granted applications to assign the stations' licenses were consummated on October 13, 1994. to ICA Media, LLC. (File Nos. BAL-940712EA and BALH-

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