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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,
By the Chief, Enforcement Bureau:
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.
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
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.
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
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
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,
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
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,
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 ¶ ¶
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
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
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
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.
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.