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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-OR-386
)
Billy R. Autry ) NAL/Acct. No.200332620012
Licensee of WKRA(AM) )
Holly Springs, Mississippi ) FRN 0004-9301-45
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 17, 2003
By the Enforcement Bureau, New Orleans Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Billy R. Autry (``Autry''), licensee of
radio station WKRA(AM), Holly Springs, Mississippi,
apparently liable for a forfeiture in the amount of eleven
thousand dollars ($11,000) for willful violation of Section
73.49 of the Commission's Rules (``Rules''), and willful and
repeated violation of Section 73.1745 of the Rules.1
Specifically, we find Autry apparently liable for failing to
enclose the station's antenna within an effective locked
fence or other enclosure, operating with excessive power
during post-sunset hours, and failing to discontinue
operation at night.
II. BACKGROUND
2. On November 18 and November 19, 2002, an agent from
the FCC Enforcement Bureau's New Orleans Office monitored
WKRA(AM)'s signal from before sunset, through sundown, and
into the nighttime hours until 10 PM Central Standard Time
(``CST''). The agent conducted field strength measurements
of the station's signal during this time period and
determined that WKRA(AM) failed to reduce power or to cease
operation in accordance with its station authorization.2
3. On November 20, 2002, the agent inspected WKRA(AM)'s
antenna tower which has radio frequency energy at the base.
The fence enclosing the antenna tower had its gate unlocked
and ajar and had one hinge broken. There was also no
perimeter fence or other enclosure to prevent anyone from
gaining access to the base of the tower.
III. DISCUSSION
4. 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.
On November 20, 2002, WKRA(AM)'s antenna tower was not
enclosed within an effective locked fence or other
enclosure.
5. Section 73.1745 of the Rules states that ``[n]o
broadcast station shall operate at times, or with modes or
power, other than those specified and made part of the
license, unless otherwise provided in this part.''
WKRA(AM)'s license authorizes daytime-only operation and the
station must either discontinue operation at sunset or
reduce power to the minimal levels specified in the post-
sunset authority at the times indicated. However, on
November 18, 2002 and November 19, 2002, WKRA(AM) failed to
reduce power to the levels indicated in its post-sunset
authority, remaining on daytime power throughout this time
period. Furthermore, WKRA(AM) failed to discontinue
operation after the post-sunset authority and continued to
operate for at least three hours past the time to
discontinue operation.
6. Based on the evidence before us, we find Autry
willfully3 violated Section 73.49 of the Rules by failing to
provide an effective locked fence enclosing the station's
antenna tower, and willfully and repeatedly4 violated
Section 73.1745 of the Rules by failing to reduce power at
sunset and then discontinue operation after the post-sunset
authority.
7. Pursuant to Section 1.80(b)(4) of the Rules,5 the
base forfeiture amount for violations involving AM tower
fencing is $7,000, and the base forfeiture amount for
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.6
Considering the entire record and applying the factors
listed above, this case warrants an $11,000 forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,7 and Sections 0.111, 0.311 and
1.80 of the Rules,8 Billy R. Autry is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
eleven thousand dollars ($11,000) for willful violation of
Section 73.49 of the Rules by failing to provide an
effective locked fence enclosing the station's antenna
tower, and willful and repeated violation of Section 73.1745
of the Rules by operating with excessive power during the
post- sunset authority hours and then failing to discontinue
operation.
9. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Billy R. Autry 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 should note 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. 20554.9
11. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street S.W., Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. 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 Billy R. Autry, 145 Memphis Street, Holly
Springs, Mississippi 38635.
FEDERAL COMMUNICATIONS COMMISSION
James C. Hawkins
District Director, New Orleans
Office
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. §§ 73.49 and 73.1745.
2 WKRA(AM) is a daytime-only station, licensed to operate at
1000 watts. The station has post-sunset authority in the
month of November of 5.8 watts from 5:00 to 6:00 PM CST and
then 3.8 watts from 6:00 to 7:00 PM CST. The station has no
authority to operate beyond 7:00 PM CST.
3 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', 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-
88(1991).
4 The 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.'' 47
U.S.C. § 312(f)(2).
5 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9
See 47 C.F.R. § 1.1914.