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                           Before the
                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               )
Athens, 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 
Broadcasting's petition. 

     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, 
D.C. 20554.17 

     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. 
2004).
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 
issued). 
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 
assessing forfeitures).  
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 
(1992).
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.