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


In the matter of                 )
                                )
Billy R. Autry                   )    File No.: EB-02-OR-386
Licensee of WKRA (AM)            )    NAL/Acct. No. 200332620012
                                )    FRN 0004-9301-45
Holly Springs, Mississippi       )



                  MEMORANDUM OPINION AND ORDER

Adopted:  November 8, 2004              Released:  November 10, 
2004

By the Chief, Enforcement Bureau:


I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order, we grant in part 
        a September 10, 2003 petition for reconsideration 
        (petition) filed by Billy R. Autry, who seeks 
        reconsideration of an August 11, 2003 Forfeiture Order,1 
        in which the Enforcement Bureau imposed a monetary 
        forfeiture in the amount of eleven thousand dollars 
        ($11,000) for willful and repeated violation of Sections 
        73.49 and 73.1745 of the Commission's Rules 
        (``Rules'').2  The noted violations involve Mr. Autry's 
        operation of an AM radio station without proper 
        enclosure of its antenna tower, operating with excessive 
        power during post-sunset hours, and failing to 
        discontinue operation at night.  As explained below, we 
        will reduce the forfeiture to $8,800 based on Mr. 
        Autry's history of overall compliance with the Rules.
II.       BACKGROUND

     2.   On November 18 and 19, 2002, an agent from the 
        Commission's New Orleans, Louisiana Field Office (``New 
        Orleans Office'') observed WKRA(AM)'s radio signal from 
        before sunset, through sundown, until 10:00 p.m.  During 
        this time period, the agent conducted field strength 
        measurements of the station's signal and determined that 
        WKRA(AM) failed to reduce power or to cease operation in 
        accordance with its station authorization.  The next day 
        the agent inspected WKRA(AM)'s antenna tower which has 
        radio frequency energy at its base.  The fence enclosing 
        the antenna tower had an unlocked gate which was open 
        and broken.  Also, there was no perimeter fence or other 
        enclosure to prevent anyone from gaining access to the 
        tower.
     3.   On March 17, 2003, the New Orleans Office issued a 
        Notice of Apparent Liability for Forfeiture (``NAL''), 
        in the amount of  eleven thousand dollars ($11,000) to 
        Mr. Autry for the apparent willful and repeated 
        violation of Sections 73.49 and 73.1745 of the Rules.3  
        The Bureau did not receive a response to the NAL, and in 
        its subsequent Forfeiture Order found Mr. Autry liable 
        for an $11,000 forfeiture for willful violation of 
        Section 73.49 of the Rules, and for willful and repeated 
        violation of Section 73.1745 of the Rules.4
     4.   Mr. Autry's petition is accompanied by a copy of a 
        purported response to the NAL that he claims he filed 
        with the Commission.5  In his petition, Mr. Autry admits 
        the violations, and claims that the station has taken 
        corrective actions and has committed no other violations 
        of Commission Rules.   He seeks cancellation or a 
        drastic reduction of the forfeiture amount.  In support 
        of his claim of inability to pay the forfeiture amount, 
        he submits certain financial information for the years 
        2000 - 2002. 
III.      DISCUSSION

     5.   The forfeiture amount in this case was assessed in 
        accordance with Section 503(b) of the Communications Act 
        of 1934, as amended (``Act''),6 Section 1.80 of the 
        Rules,7 and The Commission's Forfeiture Policy Statement 
        and Amendment of Section 1.80 of the Rules to 
        Incorporate the Forfeiture Guidelines (``Forfeiture 
        Policy Statement'').8  Section 503(b) of the Act 
        requires that the Commission, in examining Mr. Autry's 
        petition, take into account 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.9
     6.   Section 73.49 of the Rules requires that antenna towers 
        having radio frequency potential at the base be enclosed 
        within effective locked fences or other enclosures.  Mr. 
        Autry has admitted that the gate to the fence was 
        unlocked.  Section 73.1745 of the Rules requires that 
        broadcast stations operate only at times and power 
        levels as specified in their license.  Mr. Autry has 
        admitted that WKRA(AM) failed to reduce its power and 
        its nighttime operations at the time in question.  Based 
        on Mr. Autry's admissions with respect to the condition 
        of the fence and gate surrounding the antenna tower, and 
        the operation of WKRA (AM) at unspecified times with 
        nonreduced power, we conclude that Mr. Autry willfully 
        violated Sections 73.49 and 73.1745 of the Rules, and 
        repeatedly violated Section 73.1745 of the Rules.
     7.   In seeking reconsideration of the Forfeiture Order, Mr. 
        Autry states that he has remedied the defects identified 
        in the Commission inspection and seeks mitigation.  
        However, no mitigation is warranted on the basis of Mr. 
        Autry's correction of the violations.  As the Commission 
        stated in Seawest Yacht Brokers, ``corrective action 
        taken to come into compliance with Commission rules or 
        policy is expected, and does not nullify or mitigate any 
        prior forfeitures or violations.''10  
     8.   Mr. Autry points out, and a search of Commission 
        records confirms, that he has a history of compliance 
        with the Commission's Rules.  After considering Mr. 
        Autry's past history of compliance, we conclude that a 
        reduction of the forfeiture amount to $8,800 is 
        appropriate.11
     9.   Mr. Autry prefaces his inability to pay claim by 
        pointing out that his small business is in a small 
        community and is ``without substantial corporate 
        assets.''  The Commission has stated that such entities' 
        reliance upon their small business status, alone, will 
        not suffice to demonstrate an inability to pay;12 they 
        still must substantiate their inability to pay claim 
        with financial documentation.13
     10.  In support of Mr. Autry's claim that to pay the penalty 
        assessed would be a financial hardship, he submits three 
        years of profit and loss statements for both WKRA AM and 
        FM, prepared by the stations' accountant, and a 
        statement of the AM station's sales proceeds total for 
        three years with trade amounts subtracted.  As stated in 
        the NAL, the Commission will not consider reducing or 
        canceling a forfeiture on the basis 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.  The Commission 
        typically has relied upon gross revenues (or receipts) 
        as the best indicator of a violator's ability to pay a 
        forfeiture.14  
     11.  Mr. Autry's submissions are not adequate to demonstrate 
        an inability to pay the forfeiture.  Here, Mr. Autry, as 
        an individual (not a corporation, partnership, or any 
        other legal entity) is the licensee of station WKRA(AM), 
        and thus the profit and loss statements for stations 
        WKRA AM and FM are insufficient  to demonstrate his 
        inability to pay the forfeiture.  Because Mr. Autry did 
        not submit sufficient documentation regarding his 
        personal finances, we are unable to evaluate his 
        inability to pay claim, such that we can award a 
        reduction based on inability to pay. 15  The Commission 
        has stated that  ``[i]n cases involving individuals, 
        financial documentation other than financial statements 
        is often submitted such as copies of filed tax forms or 
        other objective information.''16   
     12.  We have examined Mr. Autry's petition pursuant to the 
        statutory factors above, and in conjunction with the 
        Policy Statement as well.  As a result of our review, we 
        find that a cancellation of the forfeiture is not 
        warranted but a reduction of the forfeiture amount to 
        $8,800 is appropriate.
     IV.        ORDERING CLAUSES
     13.  Accordingly, IT IS ORDERED that, pursuant to Section 
        405 of the Act17 and Section 1.106 of the Rules,18 Mr. 
        Autry's petition for reconsideration of the March 17, 
        2003 Forfeiture Order in this proceeding IS hereby 
        GRANTED to the extent indicated herein.
     14.  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.19  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. 20554.20  
     15.    IT IS FURTHER ORDERED THAT a copy of this Order shall 
        be sent by first class mail and certified mail, return 
        receipt requested, to Mr. Billy R. Autry, in care of 
        Koerner & Olender, P.C., 5809 Nicholson Lane, Suite 124, 
        North Bethesda, Maryland 20852-5706. 

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1 Billy R. Autry, 18 FCC Rcd 16350 (Enf. Bur. 2003)(``Forfeiture 
Order'').
2 47 C.F.R.  73.49 and 47 C.F.R. 1745.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332620012 (Enf. Bur., New Orleans Office, released March 17, 
2003).
4 Forfeiture Order at 16350, supra.
5 In that NAL response, Mr. Autry admits the violations, states 
that he has made remedial efforts to correct the violations, that 
the station has not been in violation of Commission rules 
previously, and that a fine of $11,000 would be very difficult 
for him to pay.
6 47 U.S.C.  503(b).
7 47 C.F.R.  1.80.
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
9 47 U.S.C.  503(b)(2)(D).
10 9 FCC Rcd 6099, 6099 (1994).  See also Callais Cablevision, 
Inc., 17 FCC Rcd 22626, 22629 (2002); Radio Station KGVL, Inc., 
42 FCC 2d 258, 259 (1973); Executive Broadcasting Corp., 3 FCC 2d 
699, 700 (1966); and AT&T Wireless Services, Inc., 17 FCC Rcd 
7891 (2002), forfeiture ordered, 17 FCC Rcd 21866, 21875-76   
26-28 (2002).         
11 See Max Media of Montana, L.L.C., 18Fcc Rcd 21375, 21379   14 
(Enf. Bur. 2003)  (making a similar  reduction due to  licensee's 
history of overall compliance).
12 Forfeiture Policy Statement, supra at 17109  51-52 (finding 
that the Commission's forfeiture policies and precedent is 
consistent with the requirements of Section 223 of the Small 
Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 
104-121, 110 Stat. 847 (1996), because the agency considers, 
among other factors, inability to pay, good faith efforts, 
participation in alternative compliance programs, in assessing 
forfeitures).  
13 See, e.g., Jerry Szoka, 14 FCC Rcd 20147,20150  9-10 (1999); 
Bay Broadcasting Corp., 15 FCC Rcd 13613, 13615-16  8-9 (Enf. 
Bur. 2000) Merichem Sasol LLC, 15 FCC Rcd  8450, 18452  4  (WTB 
1999) . 
14See Forfeiture Policy Statement, supra, 17106  43; PJB 
Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089  8 (1992) 
(finding that gross receipts are a ``very useful yardstick'' in 
analyzing a company's financial condition for forfeiture 
purposes).  
15 We did review Stations WKRA AM and FM's profit and loss 
statements for 2000, 2001 and 2002, and note that while the 
income decreased in amount over the three year period, the 
statements nonetheless reflect income sufficiently large to 
negate a claim of inability to pay, as explained in PJB 
Communications of Virginia, Inc.,supra.  Indeed, the Commission 
has stated that if ``companies' gross revenues are sufficiently 
large, the fact that net losses are reported, alone, does not 
necessarily signify inability to pay.''  See Alpha Ambulance, 
Inc.,19 FCC Rcd 2547, 2548  6 (2004).  Thus, had we considered 
Mr. Autry's submissions, we would have found that the $8,800 
forfeiture is not excessive under Commission precedent, according 
to PJB Communications of Virginia, and Alpha Ambulance, Inc.
16 Barry A. Stevenson Edmonds, Washington, 12 FCC Rcd 1976, 1977 
(CIB 1997).  See also James Lee Gaskey, 15 FCC Rcd 25309 (Enf. 
Bur. 1999).
17 47 U.S.C.  405.
18 47 C.F.R.  1.106.
19 47 U.S.C.  504(a).
20 See 47 C.F.R.  1.1914.