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

In the Matter of                )            
                                )       
Horne Radio, LLC                )       File No. EB-02-AT-341
Licensee of Radio Station WMTN  )
Morristown, Tennessee           )       NAL/Acct.             No. 
200332480011
Knoxville, Tennessee            )
                                )       FRN 0004-3408-99         

                        FORFEITURE ORDER 

Adopted:  March 30, 2004                Released:  April 1, 2004

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

                            1.     In   this   Forfeiture   Order 
                               (``Order''), we  issue a  monetary 
                               forfeiture in the  amount of  four 
                               thousand   dollars   ($4,000)   to 
                               Horne  Radio,   LLC   (``Horne''), 
                               licensee of  AM broadcast  station 
                               WMTN,  for  willful  and  repeated 
                               violations of  Section  73.1745(a) 
                               of    the    Commission's    Rules 
                               (``Rules'').1       The      noted 
                               violation     involves     Horne's 
                               failure    to     maintain     the 
                               authorized power. 

                            2.     On  November   5,  2002,   the 
                               Commission's   Atlanta,   Georgia, 
                               Field Office (``Atlanta  Office'') 
                               issued  a   Notice   of   Apparent 
                               Liability      for      Forfeiture 
                               (``NAL'')   to    Horne   for    a 
                               forfeiture in the  amount of  four 
                               thousand    dollars     ($4,000).2  
                               Horne filed  its response  to  the 
                               NAL on December 6, 2002.

                         II.  BACKGROUND

                            3.     On July  30,  2002,  an  agent 
                               from the Atlanta Office  monitored 
                               WMTN  and   made  field   strength 
                               measurements    indicating    that 
                               Horne did not reduce WMTN's  power 
                               after    sunset.3     The    agent 
                               monitored WMTN  until  11:00  p.m. 
                               and  observed   no  reduction   of 
                               WMTN's power.

                            4.     On July  31,  2002,  the  same 
                               agent  again  monitored  WMTN  and 
                               made field  strength  measurements 
                               indicating  that  Horne  did   not 
                               reduce WMTN's power after  sunset.  
                               The  agent  again  monitored  WMTN 
                               until 11:00 p.m.  and observed  no 
                               reduction of WMTN's power.

                            5.     The FCC agent contacted WMTN's 
                               general manager  on September  12, 
                               2002.  The general manager  stated 
                               that  he  was   aware  of   WMTN's 
                               overpower  operation  during  July 
                               2002,  that   WMTN's   transmitter 
                               control  system  was   inoperative 
                               and that the operator on duty  had 
                               failed  to  lower  the   station's 
                               power at sunset.

                            6.     On  November   5,  2002,   the 
                               Atlanta Office issued a NAL for  a 
                               forfeiture  in   the   amount   of 
                               $4,000 to  Horne for  willful  and 
                               repeated  violation   of   Section 
                               73.1745(a) of  the  Rules.   Horne 
                               responded to the  NAL on  December 
                               6, 2002,  seeking cancellation  or 
                               reduction    of    the    proposed 
                               monetary forfeiture.   Horne  does 
                               not  dispute   the  violation   of 
                               Section  73.1745(a).   It   states 
                               that  it  is  taking  every   step 
                               possible    to    correct     that 
                               violation  including   replacement 
                               of the  general  manager.    Horne 
                               argues   that   payment   of   the 
                               proposed  forfeiture  would  be  a 
                               financial  hardship.   To  support 
                               its financial  hardship  argument, 
                               Horne  provides   copies  of   its 
                               1999,  2000   and   2001   federal 
                               income tax returns.

                      III.      DISCUSSION

                            7.     The proposed forfeiture amount 
                               in  this  case  was  assessed   in 
                               accordance with Section 503(b)  of 
                               the Communications  Act  of  1934, 
                               as  amended  (``Act''),4   Section 
                               1.80  of  the   Rules,5  and   The 
                               Commission's   Forfeiture   Policy 
                               Statement   and    Amendment    of 
                               Section  1.80  of  the  Rules   to 
                               Incorporate     the     Forfeiture 
                               Guidelines,  12   FCC  Rcd   17087 
                               (1997), recon. denied, 15 FCC  Rcd 
                               303        (1999)        (``Policy 
                               Statement'').  Section  503(b)  of 
                               the   Act   requires   that,    in 
                               examining  Horne's  response,  the 
                               Commission 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.6

                            8.     Section  73.1745(a)   of   the 
                               Rules     prohibits      broadcast 
                               stations from  operating at  times 
                               or with modes or power other  than 
                               those specified  by the  station's 
                               license.     The    FCC    agent's 
                               observations and the admission  of 
                               WMTN's general  manager  establish 
                               that WMTN operated with  excessive 
                               nighttime power  on at  least  two 
                               occasions.    We   conclude   that 
                               Horne willfully7  and  repeatedly8 
                               violated  Section  73.1745(a)   of 
                               the Rules.

                            9.     No mitigation is warranted  on 
                               the basis  of  Horne's  correction 
                               of   the   violation.    As    the 
                               Commission   stated   in   Seawest 
                               Yacht  Brokers, 9  FCC  Rcd  6099, 
                               6099 (1994),  ``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.'' 9

                            10.    In support  of  its  financial 
                               hardship  claim,   Horne   submits 
                               copies of its 1999, 2000 and  2001 
                               federal income  tax returns.   The 
                               Commission  has  determined  that, 
                               in  general,  a  licensee's  gross 
                               revenues are  the  best  indicator 
                               of   its   ability   to   pay    a 
                               forfeiture.10    After   reviewing 
                               the financial  data submitted,  we 
                               find that the proposed  forfeiture 
                               amount should  not be  reduced  on 
                               the basis of financial hardship. 
                               11

                            11.    We   have   examined   Horne's 
                               response to  the NAL  pursuant  to 
                               the statutory  factors above,  and 
                               in  conjunction  with  the  Policy 
                               Statement as  well.  As  a  result 
                               of our  review, we  conclude  that 
                               Horne  willfully  and   repeatedly 
                               violated  Section  73.1745(a)   of 
                               the  Rules.   We  also  find  that 
                               there    is    no    basis     for 
                               cancellation or  reduction of  the 
                               proposed monetary forfeiture.

                        IV.  ORDERING CLAUSES

                            12.    Accordingly,  IT  IS   ORDERED 
                               that, pursuant  to Section  503(b) 
                               of the  Act, and  Sections  0.111, 
                               0.311  and   1.80(f)(4)   of   the 
                               Rules,12  Horne IS  LIABLE  FOR  A 
                               MONETARY FORFEITURE in the  amount 
                               of four thousand dollars  ($4,000) 
                               for    willful    and     repeated 
                               violation  of  Section  73.1745(a) 
                               of the Rules.

                            13.    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.13  
                               Payment may be  made by mailing  a 
                               check   or   similar   instrument, 
                               payable  to  the   order  of   the 
                               Federal             Communications 
                               Commission,   to    the    Federal 
                               Communications  Commission,   P.O. 
                               Box   73482,   Chicago,   Illinois 
                               60673-7482.   The  payment  should 
                               reference      NAL/Acct.       No. 
                               200332480011  and  FRN  0004-3408-
                               99.   Requests  for  full  payment 
                               under an  installment plan  should 
                               be  sent to:  Chief,  Revenue  and 
                               Receivables   Group,   445    12th 
                               Street,  S.W.,  Washington,   D.C. 
                               20554.14

                            14.    IT  IS  FURTHER  ORDERED  that 
                               copies  of  this  Order  shall  be 
                               sent  by  Certified  Mail   Return 
                               Receipt  Requested  and  by  First 
                               Class Mail  to Horne  Radio,  LLC, 
                               P.O.   Box    24250,    Knoxville, 
                               Tennessee 37933-2250.

                              FEDERAL COMMUNICATIONS COMMISSION

                         


                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

  1 47 C.F.R.  73.1745(a).

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200332480011 (Enf.  Bur., Atlanta  Office, released  November  5, 
2002).    

  3 According to its license, WMTN is authorized to operate  with 
a power of 5,000 watts during daylight hours and 96 watts between 
sunset and sunrise.

  4 47 U.S.C.  503(b).

  5 47 C.F.R.  1.80.

  6 47 U.S.C.  503(b)(2)(D).

  7 Section  312(f)(1) of the Act,  47 U.S.C.  312(f)(1),  which 
applies to violations  for which forfeitures  are assessed  under 
Section 503(b) of the Act, 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).  

  8 As provided by 47 U.S.C.  312(f)(2), a continuous  violation 
is ``repeated''  if it  continues for  more than  one day.    The 
Conference Report for Section  312(f)(2) indicates that  Congress 
intended to apply this  definition to Section 503  of the Act  as 
well as  Section 312.   See  H.R. Rep.  97th  Cong. 2d  Sess.  51 
(1982).  See Southern California Broadcasting Company, 6 FCC  Rcd 
4387, 4388 (1991)  and Western Wireless  Corporation, 18 FCC  Rcd 
10319 at fn. 56 (2003).

  9 See also Callais  Cablevision, Inc., 17 FCC Rcd 22626,  22629 
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973);  and 
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).

  10  See PJB Communications  of Virginia, Inc., 7 FCC Rcd  2088, 
2089 (1992). 

  11  Id. at  2089  (forfeiture  not deemed  excessive  where  it 
represented approximately 2.02  percent of  the violator's  gross 
revenues); Hoosier  Broadcasting Corporation,  15 FCC  Rcd  8640, 
8641 (Enf. Bur. 2002) (forfeiture  not deemed excessive where  it 
represented approximately  7.6 percent  of the  violator's  gross 
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com.  Car. 
Bur. 1992) (forfeiture not deemed excessive where it  represented 
approximately 3.9 percent of the violator's gross revenues).

  12 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  13 47 U.S.C.  504(a).

  14 See 47 C.F.R.  1.1914.