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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No.: EB-02-CF-712
Mark A. Clay ) NAL/Acct. No. 200332340003
Huntington, West Virginia ) FRN 0005-3791-77
MEMORANDUM OPINION AND ORDER
Adopted: January 25, 2007 Released: January 29, 2007
By the Assistant Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we grant, to the
extent indicated herein, the petition for reconsideration filed by
Mark A. Clay ("Mr. Clay"). Mr. Clay seeks reconsideration of a
Memorandum Opinion and Order ("MO&O") in which the Enforcement Bureau
("Bureau") denied Mr. Clay's previous petition for reconsideration of
a Bureau Forfeiture Order, which found Mr. Clay liable for a monetary
forfeiture in the amount of one thousand dollars ($1,000) for willful
and repeated violation of Section 301 of the Communications Act of
1934, as amended ("Act"). The noted violation involves Mr. Clay's
operation of an unlicensed FM broadcast station on the frequency 98.1
MHz in Huntington, West Virginia. For the reasons discussed below, we
reduce the forfeiture amount to two hundred fifty dollars ($250).
2. On January 29, 2003, the District Director of the Commission's
Columbia, Maryland Field Office ("Columbia Office") issued a Notice of
Apparent Liability for Forfeiture ("NAL"), proposing a monetary forfeiture
of ten thousand dollars ($10,000) to Mr. Clay for apparent willful and
repeated violation of Section 301 of the Act based on observations by the
Columbia Office that Mr. Clay was operating an unlicensed FM broadcast
station as referenced above. On June 16, 2004, the Bureau in finding Mr.
Clay liable for willful and repeated violation of Section 301 of the Act,
issued a Forfeiture Order reducing the $10,000 forfeiture to $1,000. Mr.
Clay filed a petition for reconsideration of the Forfeiture Order on July
16, 2004, seeking a further reduction of the forfeiture amount. On June
24, 2005, the Bureau issued a MO&O denying Mr. Clay's petition for
reconsideration. Finding Mr. Clay's arguments to be without merit, the
Bureau declined to further reduce the forfeiture amount because Mr. Clay
failed to provide documentation to support an inability to pay claim.
3. In his petition Mr. Clay seeks dismissal of the forfeiture based on an
inability to pay the forfeiture amount, and the fact that the equipment
has been destroyed or sold. He has provided personal financial information
to support his inability to pay claim.
4. The 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 ("Forfeiture Policy Statement ").
In examining Mr. Clay'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 such other
matters as justice may require.
5. The disposal and sale of the equipment was previously discussed in the
Bureau's MO&O, and we find no reason to cancel the forfeiture based on Mr.
Clay's disposal of the equipment. We have, however, examined the financial
information submitted with Mr. Clay's petition. In analyzing an inability
to pay claim, the Commission generally has looked to gross revenues as a
reasonable and appropriate yardstick in determining whether a licensee is
able to pay the assessed forfeiture. While we find that Mr. Clay willfully
and repeatedly violated Section 301 of the Act, based upon his inability
to pay, we conclude that pursuant to Section 503(b) of the Act and the
Forfeiture Policy Statement that reduction of the $1,000 forfeiture to
$250 is warranted.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act and
Section 1.106 of the Rules, Mark A. Clay's petition for reconsideration of
the June 16, 2005 Memorandum Opinion and Order IS GRANTED TO THE EXTENT
INDICATED HEREIN AND DENIED IN ALL OTHER RESPECTS.
7. Payment of the forfeiture shall be made in the manner provided 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. 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: Associate Managing Director -
Financial Operations, 445 12^th Street, SW, Room 1A625, Washington, D.C.
8. IT IS FURTHER ORDERED THAT this Order shall be sent by regular mail and
by certified mail, return receipt requested, to the address of record for
Mark A. Clay.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
Mark A. Clay, DA- 05-1709, 2005 WL 1787599 (Enf. Bur. released June 24,
Mark A. Clay, 19 FCC Rcd 10500 (Enf. Bur. 2004)("Forfeiture Order").
47 U.S.C. S 301.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200332340003
(Enf. Bur., Columbia Office released January 29, 2003).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303 (1999).
47 U.S.C. S 503(b)(2)(D).
MO&O at note 3.
See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875 (2002); Seawest
Yacht Brokers, 9 FCC Rcd 6099 (1994) (corrective action taken to comply
with the rules is expected, and does not mitigate any prior forfeitures or
violations); Odino Joseph, 18 FCC Rcd 16522, 16524 (Enf. Bur. 2003)
(remedial action taken to terminate unauthorized broadcast operations is
not a mitigating factor).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
See Local Long Distance, Inc., 16 FCC Rcd at 10025 (forfeiture not deemed
excessive where it represented approximately 7.9 percent of the violator's
gross revenues); Hoosier Broadcasting Corp., 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
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-213
Federal Communications Commission DA -07-213