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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-AT-341
)
Horne Radio, LLC ) NAL/Acct. No. 200332480011
Licensee of Radio Station WMTN, )
Morristown, Tennessee ) FRN 0004-3408-99
Knoxville, Tennessee )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 5, 2002
By the Enforcement Bureau, Atlanta Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Horne Radio, LLC (``Horne''), licensee of
radio station WMTN, Morristown, Tennessee, apparently liable for
a forfeiture in the amount of four thousand dollars ($4,000) for
willful and repeated violation of Section 73.1745(a) of the
Commission's Rules.1 Specifically, we find Horne Radio, LLC
apparently liable for failure to reduce power at sunset.
II. BACKGROUND
2. On July 30, 2002, an agent from the FCC Enforcement
Bureau's Atlanta Field Office monitored WMTN's signal. Field
strength measurements revealed that WMTN did not reduce power at
sunset as required by the station authorization. WMTN stayed at
daytime power until 11:00 pm EDT, at which time monitoring was
discontinued. Local sunset is 8:45 pm EDT in July.
3. On July 31, 2002 an agent of the Atlanta Field Office
again monitored WMTN's signal. Field strength measurements
revealed that WMTN did not reduce power at sunset as required.
WMTN stayed at daytime power until 11:00 pm EDT, at which time
monitoring was discontinued.
4. On September12, 2002, WMTN's general manager stated he
was aware of the station's overpower operation in July and that
the station's transmitter control system was inoperative and the
operator on duty had failed to lower the station's power at
sunset.
III. DISCUSSION
5. Section 73.1745(a) of the Rules states that no broadcast
station shall operate at times, or with modes or power, other
than those specified and made part of the license. WMTN operated
with daytime power on July 30 and July 31, 2002 during nighttime
hours until 11:00 pm EDT.
6. Based on the evidence before us, we find that on July 30
and 31, 2002, Horne Radio, LLC willfully2 and repeatedly3
violated Section 73.1745(a) of the Commission's Rules by failing
to reduce power at sunset.
7. Pursuant to Section 1.80(b)(4) of the Rules, 4 the base
forfeiture amounts for failing to reduce power (exceeding power
limits) is $4,000. In assessing the monetary forfeiture amount,
we must also take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Communications Act of 1934, as
amended (``Act''), which include 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.5 Considering the entire record and applying the
statutory factors listed above, this case warrants a $4,000
forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,6 and Sections 0.111, 0.311 and 1.80 of the
Rules,7 Horne Radio, LLC is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of four thousand dollars
($4,000) for willful and repeated violation of Section 73.1745(a)
of the Rules by failing to reduce power at sunset.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Horne Radio, LLC SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment MUST INCLUDE
the NAL/Acct. No. and FRN referenced above. Requests for payment
of the full amount of this NAL under an installment plan should
be sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.8
11. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. and FRN referenced above.
12. The Commission will not consider reducing or canceling
a forfeiture in response to a claim 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 (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
13. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
14. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Horne Radio, LLC, Post Office Box 24250, Knoxville, TN 37933.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
District Director
Atlanta Office, Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. §§ 73.1745(a)
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious and
deliberate commission or omission of such act, irrespective of
any intent to violate any provision of this Act ....'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `repeated,' when used with reference to the
commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.''
4 47 C.F.R. § 1.80(b)(4).
5 47 U.S.C. § 503 (b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.