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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
NATCHEZ COMMUNICATIONS, INC. ) File No. 99-OR-156
FM Station WTYJ )
Fayette, Mississippi ) NAL/Acct. No.
MEMORANDUM OPINION AND ORDER
Adopted: August 15, 2000 Released: August 17,
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny the petition for reconsideration filed on April 3, 2000, by
Natchez Communications, Inc. (``Natchez''), the licensee of FM
Station WTYJ, Fayette, Mississippi. Natchez seeks
reconsideration of the Forfeiture Order,1 in which the Chief,
Enforcement Bureau (``Bureau'') found Natchez liable for a
monetary forfeiture in the amount of $5,000 for willful violation
of Section 73.1213(b) of the Commission's Rules (``Rules'')2
concerning tower lighting and painting. For the reasons
discussed below, we affirm the monetary forfeiture in the amount
2. Natchez is the owner of WTYJ's antenna tower
(``tower''). On March 19, 1999, an agent from the Commission's
New Orleans Field Office (``New Orleans Office'') observed that
the tower's lights were not functioning and that its paint was
severely chipped and faded. On the basis of these observations,
the New Orleans Office issued Natchez an Official Notice of
Violation on March 31, 1999. On the night of May 13, 1999, and
during the day on May 14, 1999, the agent observed that the
tower's lights were still not functioning and that the tower had
not been repainted.
3. On the basis of the foregoing observations, the New
Orleans Office issued a Notice of Apparent Liability (``NAL'') to
Natchez on July 8, 1999, proposing a monetary forfeiture of ten
thousand dollars ($10,000) for willful violation of Section
73.1213(b) of the Rules (antenna tower with defective paint and
nonfunctioning lighting ).3 In Natchez's response to the NAL, it
requested reduction of the proposed monetary forfeiture to
$1,000. On March 3, 2000, the Bureau released the Forfeiture
Order, which assessed a monetary forfeiture of $5,000 for willful
violation of Section 73.1213(b).
4. The Bureau issued the Forfeiture Order pursuant to
Section 503 of the Communications Act of 1934, as amended
(``Act''), 47 U.S.C. § 503, and Section 1.80 of the Rules. In
assessing the forfeiture amount, the Bureau followed the
forfeiture standards established in Section 503 of the Act and
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Policy
Statement"). 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 other such matters as justice may require. 47 U.S.C.
§ 503(b)(2)(D). Taking those factors into account, including
Natchez's ability to pay, the Bureau imposed a $5,000 forfeiture
- a reduction by one half from the $10,000 forfeiture proposed by
5. Natchez seeks a further reduction of the forfeiture to
$1,000 on the basis of its alleged inability to pay $5,000. The
Bureau decided, on the basis of financial documentation provided
by Natchez, that Natchez was able to pay $5,000. Natchez
provides no new financial documentation to support its claim that
it cannot pay $5,000. Rather, Natchez argues that a $5,000
forfeiture is excessive because: it constitutes nearly 6% of
Natchez's gross revenues for 1998; Natchez sustained net losses
for the years 1996-1998 which the Bureau did not consider in the
Forfeiture Order; and payment of a $5,000 forfeiture would cause
``severe financial hardship'' to Natchez's business.
6. Natchez's arguments do not justify any further
reduction of the forfeiture amount. The Commission has not
specified any fixed percentage of gross revenues that per se
exceeds a licensee's ability to pay. Moreover, we will not
reduce Natchez's forfeiture on the basis of financial losses.
When a licensee has presented no other persuasive evidence that
payment of a forfeiture would cause financial difficulty, the
presence of financial loss does not by itself necessarily
establish a licensee's inability to pay a forfeiture. See
Independent Communications, Inc., 14 FCC Rcd 9605, 9610 (1999),
in which the licensee sustained a net loss of $520,667 (on
revenues of $516,147). Although Natchez claims that paying a
$5,000 forfeiture would cause ``severe financial hardship'' to
its business, it has provided no persuasive information other
than financial losses4 to support this claim.
7. We have examined Natchez's petition for reconsideration
pursuant to the statutory factors set forth above, and in
conjunction with the Policy Statement as well. As a result of
our reconsideration, we conclude that Natchez has failed to
provide a sufficient justification for further reducing the
8. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
1.106 of the Rules, Natchez's petition for reconsideration of the
Forfeiture Order (NAL/Acct. No. 915OR0003)released March 3, 2000,
9. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of
the Act5 and Section 1.80(f) of the Rules,6 Natchez
Communications, Inc., shall, within 30 days of the release of
this Order, pay the amount of $5,000 for willful violation of
Section 73.1213(b) of the Rules. If the forfeiture is not paid
within the specified period, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.7 Payment may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995
or 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 note the NAL/Acct. No. 915OR0003.
Requests for full payment under an installment plan should be
sent to: Chief, Credit and Debt Management Center, 445 12th
Street, S.W., Washington, D.C. 20554. 8
10. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail, return receipt requested, to counsel
for Natchez Communications, Inc., Stephen Diaz Gavin, Esq.,
Patton Boggs LLP, 2550 M Street, N.W., Washington, D.C. 20037.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 13 FCC Rcd 16793 (Compl. & Inf. Bureau 1998)
2 47 C.F.R. § 73.1213(b).
3 Notice of Apparent Liability, NAL Acct. No. 915OR0003 (Released
July 8, 1999).
4 According to Natchez's federal tax income tax returns, Natchez
was actually profitable during 1996 and 1997 but experienced
losses for tax purposes because of loss carryovers from previous
5 47 U.S.C. § 503(b)
6 47 C.F.R. § 1.80(f)
7 47 U.S.C. § 504(a).
8 See 47 C.F.R. § 1.1914.