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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.