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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Brown Broadcasting System, Inc. ) File No. EB-03-AT-197
Owner of Antenna Structure ) NAL/Acct. No. 200432480001
located in ) FRN 0009 7708 84
Jefferson, Georgia )
MEMORANDUM OPINION AND ORDER
Adopted: June 21, 2005 Released: June 24, 2005
By the Acting Chief, Enforcement Bureau:
1. On April 16, 2004, the Enforcement Bureau issued a
Forfeiture Order1 in the amount of three thousand dollars
($3,000) against Brown Broadcasting System, Inc. (``Brown
Broadcasting''), owner of an antenna structure in Jefferson,
Georgia, for failure to register its antenna structure, in
willful and repeated violation of Section 17.4(a) of the
Commission's Rules (``Rules'').2 The forfeiture was imposed on
Brown Broadcasting after it failed to respond to the Bureau's
Notice of Apparent Liability (``NAL'').3 On May 17, 2004, Brown
Broadcasting, by its attorney, filed a Petition for
Reconsideration (``petition'') requesting cancellation of the
$3,000 forfeiture amount based primarily on financial hardship.
By this Memorandum Opinion and Order (``Order''), we deny Brown
2. In its petition, Brown Broadcasting does not dispute
the violation, noting that the tower is now registered.4 Brown
Broadcasting's sole argument is that the forfeiture should be
cancelled ``because it will impose a harsh burden on the
licensee.'' Brown Broadcasting ``urges the Bureau to disregard
the strict indicia that it usually employs in these cases and
view Brown Broadcasting as a small AM broadcaster in a small
market whose limited resources make a $3,000 forfeiture a
significant obligation.'' In support, Brown Broadcasting submits
federal income tax returns for the years 2001, 2002 and 2003 as
required by Paragraph 11 of the NAL.
3. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended, (``Act'')5 Section 1.80 of the Rules,6 and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines.7 In
examining Brown Broadcasting's petition, Section 503(b) of the
Act requires that 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 any other such matters as
justice may require.8
4. The Commission has recognized ``the concerns raised by
small entities as to the burden and expense of documenting
inability to pay a forfeiture by means of audited financial
statements,'' and thus will consider ``any documentation, not
just audited statements'' that serves as ``probative, objective
evidence'' of their financial status.9 Such entities' reliance
upon their small business status, alone, will not suffice;10 they
still must substantiate their inability to pay claim with
financial documentation.11 As noted, the Commission previously
has addressed the ``small market'' argument and rejected it.
Accordingly, recognizing that the Commission has determined that,
in general, gross revenues are the best indicator of a licensee's
ability to pay an assessed forfeiture,12 we look to the financial
documentation submitted by Brown Broadcasting and, based on its
gross revenues, conclude that a cancellation of the $3,000
forfeiture amount is not warranted.13
5. Accordingly, IT IS ORDERED that, pursuant to Sections
405 of the Act 14 and Section 1.106 of the Rules,15 Brown
Broadcasting's petition for reconsideration IS DENIED.
6. 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.16
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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail
may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
7. IT IS FURTHER ORDERED THAT this Order shall be sent by
regular mail and by certified mail, return receipt requested, to
Brown Broadcasting System, Inc., 1186 West Broad Street, Athens,
Georgia, and to its counsel, Lewis H. Goldman, Esq., 45 Dudley
Court, Bethesda, Maryland 20814.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Acting Chief, Enforcement Bureau
1 Brown Broadcasting System, Inc., 19 FCC Rcd 6896 (Enf. Bur.
2 47 C.F.R. § 17.4(a).
3 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432480001 (Enf. Bur., Atlanta Office, released December 8,
2003). Brown Broadcasting does not dispute that it failed to
respond to the Notice of Apparent Liability.
4 See Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 ¶ 7 (1994)
(finding that a downward adjustment of a forfeiture was not
warranted, where the violation was addressed after the NAL was
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
8 47 U.S.C. § 503(b)(2).
9 Forfeiture Policy Statement, 12 FCC Rcd 17087, 17107 ¶ 44
(1997), recon. denied, 15 FCC Rcd 303 (1999).
10 See Forfeiture Policy Statement, supra. at 17109 ¶¶ 51-52
(1997) (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
11 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).
12 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088
13 See Local Long Distance, Inc., 16 FCC Rcd 10016, 10025 (2001)
(forfeiture not deemed excessive where it represented
approximately 7.9 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);
Alpha Ambulance, Inc., FCC 04-19, 2, n.15 (February 5, 2004),
citing PJB Communications, 7 FCC Rcd at 2089 (forfeiture not
deemed excessive where it represented approximately 2.02 percent
of the violator's gross revenues).
14 47 U.S.C. § 405.
15 47 C.F.R. § 1.106.
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.