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


In the Matter of                 )    File Number EB-02-AT-239
                                )
Farnell O'Quinn                  )    NAL/Acct. No. 200232480012
Licensee of Radio Stations       )
WUFF(AM)                         )    FRN 0004-9860-22
and WUFF- FM                     )
Eastman, Georgia


                  MEMORANDUM OPINION AND ORDER

   Adopted:  September 1, 2004          Released:  September 3, 
2004

By the Chief, Enforcement Bureau:

I.  INTRODUCTION

     1.   In this Memorandum  Opinion and  Order (``Order''),  we 
deny a petition for reconsideration filed by Mr. Farnell O'Quinn, 
licensee of radio stations WUFF  (AM) and WUFF-FM (``the  O'Quinn 
stations''), Eastman,  Georgia,  and  owner  of  those  stations' 
antenna structure (antenna registration  number 1019521); and  we 
affirm the  Forfeiture  Order1 issued  August  11, 2003,  in  the 
amount of three thousand  dollars ($3,000) for willful  violation 
of Section  73.1350(a) of  the Commission's  Rules  (``Rules'').2  
The noted violation involves Mr. O'Quinn's failure to operate the 
O'Quinn stations in  accordance with the  terms of their  station 
authorizations.

II.  BACKGROUND

     2.   On June  11,  2002,  an  agent  from  the  Commission's 
Atlanta, Georgia, Field Office (``Atlanta Office'') inspected the 
O'Quinn stations'  transmitter site  and antenna  structure  near 
Eastman,  Georgia.   The  agent  determined  through  the  Global 
Positioning System (``GPS'') that  the O'Quinn stations'  antenna 
structure was located  at 32  13' 18"N Latitude,  083 13'  04"W 
Longitude.    The   O'Quinn   stations'   licensed   geographical 
coordinates were 32 13' 35"N Latitude, 083 13' 10"W  Longitude.  
This placed the actual location of the O'Quinn stations'  antenna 
structure  more  than  1/3  of  a  mile  South/Southeast  of  the 
authorized location.3

     3.   On July 8, 2002, the  Atlanta Office issued an NAL4  in 
the amount of  $4,000 to Mr.  O'Quinn for failure  to operate  in 
accordance   with   the   terms   of   the   O'Quinn    stations' 
authorizations.   Mr.  O'Quinn  requested  cancellation  of   the 
forfeiture in his response to the NAL.  In the Forfeiture  Order, 
we imposed  a forfeiture  of $3,000  on Mr.  O'Quinn for  willful 
violation of Section  73.1350(a) of  the Rules.   We reduced  the 
proposed forfeiture amount  because of Mr.  O'Quinn's history  of 
overall compliance.   In his  petition for  reconsideration,  Mr. 
Quinn again requests cancellation of the forfeiture.  Mr. O'Quinn 
objects to  being  ``termed  a violator''  and  argues  that  the 
forfeiture is an insult to his forty (40) year record of  running 
a top-notch small  market station in  a town of  6,000.  He  also 
argues that the Commission renewed his license without  informing 
him that the O'Quinn  stations' coordinates were incorrect;  that 
the Commission never  told him  ``about changing  out the  analog 
readings'';  and  that  the  coordinates  he  received  from  his 
engineers were ``correct at the time.''  Additionally Mr. O'Quinn 
argues that he  did not willfully  violate Section 73.1350(a)  of 
the Rules and that payment of the forfeiture would be a financial 
hardship.  Finally, Mr.  O'Quinn states that  the FCC agent  said 
that the District  Director of  the Atlanta Office  was going  to 
recommend against a monetary forfeiture.

III.  DISCUSSION

     4.   Mr. O'Quinn  objects to  being ``termed  a  violator.''  
However, it is undisputed the O'Quinn stations' transmitter  site 
was located at about 1/3 of a mile from their authorized location 
and that their  operation from  that site was  not in  accordance 
with the terms  of the stations'  authorization.  We,  therefore, 
affirm the conclusion that Mr. O'Quinn's operation from that site 
violated the  terms of  his  station authorizations  and  thereby 
violated Section 73.1350(a) of the Rules.

     5.   Mr. O'Quinn contends  that the  Commission renewed  his 
license  without   informing  him  that  the  O'Quinn   stations' 
coordinates were incorrect;  that the Commission  never told  him 
``about  changing  out  the  analog  readings'';  and  that   the 
coordinates he received from his engineers were ``correct at  the 
time.'' All  of  these  arguments are  apparently  based  on  the 
incorrect belief  that the  availability  of the  GPS  technology 
imposes a new  or different requirement  on broadcast  licensees.  
Broadcast licensees  were  and  still  are  required  to  provide 
accurate coordinates for their  transmitter sites and to  operate 
their stations from the authorized coordinates.  The availability 
of the GPS  technology does  not change  these requirements;  GPS 
simply provides an  additional means of  determining the  correct 
coordinates.  Thus, the coordinates Mr. O'Quinn received from his 
engineers were not ``correct at the time''; they were and  remain 
incorrect.

     6.   Mr.  O'Quinn   contends   his  violation   of   Section 
73.1350(a) was not willful.  He argues that ``the FCC never  told 
us this had  to be done''  and he ``had  no idea .  . . that  our 
coordinates needed to  be upgraded to  [GPS].''  These  arguments 
also are based  on the incorrect  belief that the  use of GPS  to 
determine  broadcast  station  coordinates   imposes  a  new   or 
different requirement on broadcast  licensees.  In addition,  Mr. 
O'Quinn  argues  that  his  actions  do  not  fit  a   dictionary 
definition of ``willful'':   ``done deliberately:  intentional.''  
This is not  the definition  of ``willful''  that the  Commission 
uses.  The term  ``willful,'' as  used in Section  503(b) of  the 
Communications Act  of  1934,  as amended  (``Act''),5  does  not 
require a finding that the rule violation was intentional or that 
the violator was aware that  it was committing a rule  violation.  
Section 312(f)(1) of  the Act,6 which  applies to violations  for 
which forfeitures  are assessed  under Section  503(b),  provides 
that  ``[t]he  term  `willful,'  ...  means  the  conscious   and 
deliberate commission or  omission of such  act, irrespective  of 
any intent to violate  any provision of this  Act or any rule  or 
regulation of the Commission authorized  by this Act ....''   See 
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).  The 
act of operating the O'Quinn stations from their actual  location 
was conscious and deliberate and, therefore, willful even  though 
Mr. O'Quinn was unaware that the location was unauthorized.7   We 
affirm the  conclusion that  Mr. O'Quinn's  violation of  Section 
73.1350(a) of the Rules was willful.

     7.   In the Forfeiture Order, we gave Mr. O'Quinn credit for 
his history  of overall  compliance  and reduced  the  forfeiture 
amount from $4,000  to $3,000.  Mr.  O'Quinn's ``record of  forty 
(40) years of running a top-notch small market station in a  town 
of 6,000'' does not warrant further reduction or cancellation  of 
the forfeiture.

     8.   Mr. O'Quinn again asserts that he is unable to pay  the 
proposed forfeiture  but again  does  not provide  any  financial 
documentation from  which  we can  assess  his ability  to  pay.8  
Therefore, we  again decline  to cancel  or reduce  the  proposed 
forfeiture on the basis of inability to pay.

     9.   We have considered  the forfeiture amount  and we  have 
examined Mr. O'Quinn's petition  for reconsideration pursuant  to 
the statutory factors prescribed  by Section 503(b)(2)(D) of  the 
Act,9 and in conjunction with the Commission's Forfeiture  Policy 
Statement  and  Amendment  of  Section  1.80  of  the  Rules   to 
Incorporate the Forfeiture Guidelines,10 as well.  As a result of 
our review,  we  conclude  that Mr.  O'Quinn  willfully  violated 
Section  73.1350(a)   of  the   Rules  and   find  that   neither 
cancellation  nor  reduction  of   the  monetary  forfeiture   is 
appropriate.11

IV.  ORDERING CLAUSES

     10.  Accordingly, IT IS  ORDERED that,  pursuant to  Section 
405 of the Act12 and Section 1.106 of the Rules,13 Mr.  O'Quinn's 
petition for reconsideration  of the Forfeiture  Order IS  DENIED 
and the Forfeiture Order IS AFFIRMED.

     11.  Payment of the forfeiture shall  be made in the  manner 
provided for in Section 1.80 of  the Rules 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.14  
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/Acct. No. and  FRN 
No. referenced above.   Payment by  check or money  order may  be 
mailed to Forfeiture Collection Section, Finance Branch,  Federal 
Communications Commission,  P.O.  Box  73482,  Chicago,  Illinois 
60673-7482.  Payment by overnight mail may be sent to Bank One/LB 
73482, 525 West  Monroe, 8th Floor  Mailroom, Chicago, IL  60661.  
Payment by wire  transfer may  be made to  ABA Number  071000013, 
receiving bank Bank One, and account number 1165259. 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. 20554.15

     12.  IT IS FURTHER ORDERED that, a copy of this Order  shall 
be sent  by  First  Class  and  Certified  Mail,  Return  Receipt 
Requested, to  Farnell  O'Quinn,  731  College  Street,  Eastman, 
Georgia 31023. 

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1 Farnell O'Quinn, 18 FCC Rcd 16354 (Enf. Bur. 2003).
2 47 C.F.R.  73.1350(a).
3 We  note  that  Mr.  O'Quinn  filed  an  application  with  the 
Commission on October  28, 2002,  to correct  the coordinates  of 
WUFF(AM).  See  File No.  BP-20021028AAJ.  That  application  was 
granted  June  2,  2003.   In  addition,  Mr.  O'Quinn  filed  an 
application with the Commission on  October 25, 2002, to  correct 
the coordinates of WUFF-FM.  See File No. BPH-20021025AAB.   That 
application is pending.
4 Notice  of  Apparent  Liability for  Forfeiture,  NAL/Acct  No. 
200232480012 (Enf. Bur., Atlanta Office, released July 8, 2002).
5 47 U.S.C.  503(b).
6 47 U.S.C.  312(f)(1).
7 See KM  Radio of St.  Louis, L.L.C., 19  FCC Rcd 5847,  5851-52 
(2004).
8 As stated in the NAL, 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 
(``GAAP'');  or   (3)   some   other   reliable   and   objective 
documentation that accurately  reflects the petitioner's  current 
financial status.   NAL  at para.  10.  The Commission  has  long 
recognized that gross  revenues are  the primary  indicator of  a 
licensee's ability to pay  a forfeiture.  See PJB  Communications 
of Virginia,  Inc., 7  FCC Rcd  2088, 2089  (1992) (finding  that 
gross receipts are  a ``very  useful yardstick''  in analyzing  a 
company's financial condition for forfeiture purposes).
9 47 U.S.C.  503(b)(2)(D).
10 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
11 Mr. O'Quinn claims that the  FCC agent said that the  District 
Director of the Atlanta Office  was going to recommend against  a 
monetary forfeiture.   We  note,  however,  that,  even  assuming 
arguendo that the  agent stated  that the  District Director  was 
going to  recommend  that there  not  be a  forfeiture  and  even 
assuming arguendo that  such an  agent statement  would bind  the 
Bureau, Mr. O'Quinn was never  informed that no forfeiture  would 
be imposed.

12 47 U.S.C.  405.
13 47 C.F.R.  1.106.
14 47 U.S.C.  504(a).
15 See 47 C.F.R.  1.1914.