******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554


                            )                               
                                                            
     In the Matter of       )                               
                                 File Number: EB-04-OR-094  
     Jason Konarz           )                               
                                NAL/Acct. No.: 20043262004  
     Licensee of WQMA(AM)   )                               
                                           FRN: 0005015425  
     Marks, Mississippi     )                               
                                                            
                            )                               


                          MEMORANDUM OPINION AND ORDER

   Adopted:  September 8, 2006  Released:  September 12, 2006

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Memorandum Opinion and Order ("Order"), we deny the petition
       for reconsideration filed by Jason Konarz, licensee of station
       WQMA(AM) in Marks, Mississippi, of the Forfeiture Order issued October
       8, 2004. The Forfeiture Order imposed a monetary forfeiture in the
       amount of $20,000 to Mr. Konarz for willful and repeated violations of
       Sections 11.35(a), 73.1745(a), and 73.3526(c) of the Commission's
       Rules ("Rules"). The noted violations involved Mr. Konarz's failing to
       maintain operational Emergency Alert System ("EAS") equipment,
       operating his station with excessive power and failing to discontinue
       operation at night, and failing to make available for inspection all
       of the required materials in the station's public inspection file.

   II. BACKGROUND

    2. On May 11 and 12, 2004, an agent from the Commission's New Orleans
       Office of the Enforcement Bureau ("New Orleans Office") monitored
       station WQMA(AM)'s signal and determined that station WQMA(AM) failed
       to discontinue operation at 8:00 p.m. CDT in accordance with its
       station authorization. Station WQMA(AM) is authorized as a daytime
       only station with a power of 250 watts.

    3. On May 13, 2004, the agent made field strength measurements and then
       inspected station WQMA(AM). At the time of the inspection, the EAS
       encoder/decoder would not function and only one receiver was present.
       Station personnel reported that the EAS encoder/decoder had been
       broken between three and eighteen months. There were no logs or other
       evidence that the EAS encoder/decoder had ever been in operation or
       that it was being repaired. Also during the inspection, it was
       determined that the station's transmitter power output meter displayed
       425 watts, 170% of the authorized power of 250 watts. Finally, the
       station owner was able to produce the station authorization and a
       contour map for station WQMA(AM), but was unable to find any other
       elements of the station's public file.

    4. On July 21, 2004, the New Orleans Office issued a Notice of Apparent
       Liability for Forfeiture to Mr. Konarz in the amount of twenty
       thousand dollars ($20,000) for the apparent willful and repeated
       violation of Sections 11.35(a), 73.1745(a), and 73.3526(c) of the
       Rules. Mr. Konarz failed to submit a response to the NAL, and, on
       October 8, 2004, the Enforcement Bureau released the Forfeiture Order.
       Mr. Konarz submitted two responses to the Forfeiture Order, both
       styled "Petition for Reconsideration," and dated November 4, 2004, and
       December 4, 2004 ("Petitions"). Both Petitions requested reduction or
       cancellation of the forfeiture based on inability to pay. Mr. Konarz's
       Petitions acknowledged all of the violations and stated that they had
       been corrected.

   III. DISCUSSION

    5. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Act, Section 1.80 of the Rules, 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) ("Forfeiture Policy
       Statement"). In examining Mr. Konarz'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 other such matters as justice may
       require.

    6. In his Petitions, Mr. Konarz asserts that a $20,000 forfeiture would
       produce a financial hardship and requests that the forfeiture be
       cancelled or significantly reduced. In support, Mr. Konarz provides
       copies of bank account statements, Internal Revenue Service Forms
       1099-MISC, and documents entitled "Cash Flow Reports" covering years
       2003, 2004, and 2005. As the NAL correctly noted, in the absence of
       supporting financial documentation (i.e., claimant's federal tax
       returns, GAPP standard  accounting statements, or other reliable,
       objective information reflecting financial status), the Commission
       will not consider reductions or cancellations of forfeitures on the
       basis of inability to pay. Because none of the documents provided by
       Mr. Konarz provides us with reliable, objective information reflecting
       his financial status, we find that no reduction or cancellation of the
       proposed forfeiture is warranted in this regard.  ^,

   IV. ORDERING CLAUSES

    7. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
       Communications Act of 1934, as amended, and Section 1.106 of the
       Commission's Rules, Jason Konarz's petition for reconsideration of the
       October 8, 2004 Forfeiture Order IS hereby DENIED.

    8. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
       Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, Jason
       Konarz IS LIABLE FOR A MONETARY FORFEITURE in the amount of twenty
       thousand dollars ($20,000) for willful and repeated violation of
       Sections 11.35(a), 73.1745(a), and 73.3526(c) of the Rules. For
       collection, the Commission will file a proof of claim at the
       appropriate time in Jason Konarz's bankruptcy action.

    9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by
       regular mail and by certified mail, return receipt requested, to Jason
       Konarz at his address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

   Jason Konarz, Forfeiture Order, 19 FCC Rcd 19562 (Enf. Bur. 2004)
   ("Forfeiture Order").

   47 C.F.R. SS 11.35(a), 73.1745(a), 73.3526(c).

   See 47 C.F.R. S 11.35(b).

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 20043262004
   (Enf. Bur., New Orleans Office, July 21, 2004) ("NAL").

   47 U.S.C. S 503(b).

   47 C.F.R. S 1.80.

   47 U.S.C. S 503(b)(2)(D).

   NAL at P 14.

   See Webnet Communications, Inc., 18 FCC Rcd 6870, 6878 P 16 (2003)
   (finding that the Rules require that any request to reduce or remove a
   forfeiture based on an inability to pay claim include detailed and
   relevant financial documentation, that the carrier did not provide such
   documentation, and that therefore there was no basis to reduce the total
   forfeiture on such grounds); see also Commonwealth License Subsidiary,
   LLC, 18 FCC Rcd 20483, 20486 P 10 (Enf. Bur. 2003); Andre Dominque Hunter,
   14 FCC Rcd 3958, 3959-60 P 6 (CIB 1999).

   The FCC has received notice that Mr. Konarz has filed for Chapter 7
   bankruptcy. In re Jason Christopher Konarz, No. 05-18351 (Bankr. N.D.
   Miss. filed Nov. 10, 2005). However, the filing for bankruptcy does not
   necessarily preclude the imposition of a forfeiture. See 11 U.S.C. S
   362(b); see also United States v. Commonwealth Companies, Inc., 913 F.2d
   518, 522-26 (8^th Cir. 1990) (excepting from bankruptcy imposed stays,
   suits by government to obtain monetary judgment for past violations of the
   law); Coleman Enterprises, Inc., 15 FCC Rcd 24385, 24389 notes 27-28
   (2000), recon. denied, 16 FCC Rcd 10016 (2001) (noting that a bankruptcy
   filing does not preclude the Commission from assessing forfeitures for
   violations of the Act and Rules). Moreover, the filing for bankruptcy does
   not necessarily justify an adjustment or cancellation of the forfeiture
   amount for a violation of the Rules. See Adelphi Communications, 18 FCC
   Rcd 7652, 7654 P 8 (Enf. Bur. 2003) (finding that a Chapter 11 bankruptcy
   filing -- alone, without financial documentation -- does not support an
   inability to pay claim and thus does not provide a basis to adjust or
   cancel an assessed forfeiture); see also North American Broadcasting Co.,
   Inc., 19 FCC Rcd 2754 P 6 (Enf. Bur. 2004); Pinnacle Towers, Inc., 18 FCC
   Rcd 16365, 16366-67 P 7 (Enf. Bur. 2003); Friendship Cable of Texas, Inc.,
   17 FCC Rcd 8571, 8572-73 P 9 (Enf. Bur. 2002).

   47 U.S.C. S 405.

   47 C.F.R. S 1.106.

   47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).

   See Coleman Enterprises, Inc., supra at 24390. See also Commonwealth,
   supra at 523 note 15.

   Federal Communications Commission DA 06-1783

   2

   Federal Communications Commission DA 06-1783