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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of Hoosier Public Radio Corporation Licensee of Station
   WRFM-FM Wilkinson, Indiana ) ) ) ) ) ) File No.: EB-FIELDNER-12-00004400
   NAL/Acct. No.: 201232320002 FRN: 0006402911 Facility ID No.: 173964

                                FORFEITURE ORDER

   Adopted: October 28, 2013 Released: October 28, 2013

   By the Regional Director, Northeast Region, Enforcement Bureau:


    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of eight thousand dollars ($8,000) to Hoosier Public Radio
       Corporation  (Hoosier), licensee of Non-Commercial Educational Station
       WRFM-FM, in Wilkinson,  Indiana (Station), for willfully and
       repeatedly violating Section 73.1350(a) of the Commission's rules
       (Rules).^ The noted violation involved Hoosier's failure to maintain
       and operate its broadcast station in accordance with the terms of the
       Station's authorization.


    2. On March 8, 2012, the Enforcement Bureau's Chicago Office (Chicago
       Office) issued a Notice of Apparent Liability for Forfeiture  and
       Order (NAL) ^ ^ to Hoosier for operating its Station on 89.1 MHz from
       an unauthorized location without a special temporary authorization
       (STA). Specifically, the Chicago Office found that Hoosier had
       operated on September 28, 2010, and February 10 and 14, 2011, from an
       antenna mounted on a farm silo at the approximate geographic
       coordinates of 39-o 50' 15" North Latitude and 85-o 37' 30" West
       Longitude in Jackson Township, Hancock County, Indiana (hereinafter
       referred to as the "Farm Silo"), which is approximately three miles
       from the Station's authorized transmitter location.  The Chicago
       Office also determined that spurious emissions from the Station's
       operation at the Farm Silo caused harmful interference to the Federal
       Aviation Administration (FAA) on February 10, 2011.

    3. Hoosier submitted a response to the NAL, in which it does not dispute
       that it was operating from the Farm Silo, but claims that it had filed
       an STA request with the Commission to operate at that location.^
       Hoosier also claims that there is insufficient evidence to support the
       finding in the NAL that the Station was causing interference to the
       FAA from the Farm Silo on February 10, 2011, and that therefore the
       $4,000 upward adjustment proposed in the NAL for the FAA interference
       was not warranted.^ Hoosier further requests a reduction to the
       proposed forfeiture based on its history of compliance with the Rules
       and its inability to pay.^


    4. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Communications Act of 1934, as amended
       (Act),^ Section 1.80 of the Rules,^ and the Forfeiture Policy
       Statement.^ In examining Hoosier's response, Section 503(b)(2)(E) 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.^ As discussed below, we have considered Hoosier's response in
       light of these statutory factors and find that a cancellation or
       reduction of the forfeiture is not warranted.

    5. We reject Hoosier's claim that it had authority on the dates at issue
       in the NAL to operate from the Farm Silo pursuant to an STA. According
       to the Commission's records, Hoosier did not submit a valid STA
       request until February 16, 2011.^ The STA, which was granted the next
       day, authorized Hoosier to operate from a Church Steeple located at
       310 S. Main Street, Wilkinson, Indiana (hereinafter referred to as the
       "Church Steeple"), not from the Farm Silo.^ Hoosier does not provide
       any evidence to support its claim that it filed STA requests with the
       Commission prior to February 14, 2011, for the Farm Silo.^ Indeed, the
       only letter Hoosier submitted with the NAL Response was the letter it
       submitted to the Commission along with the STA request that the Media
       Bureau dismissed on February 16, 2011, for the Church Steeple site.^
       Even assuming Hoosier had filed an STA request prior to February 14,
       2011, Commission precedent is clear that, contrary to Hoosier's
       assertion, authority to operate at variance from a license must be
       received prior to commencement of such operation.^ We therefore find
       that Hoosier willfully and repeatedly violated Section 73.1350(a) of
       the Rules by failing to operate its Station in accordance with the
       terms of its station authorization on September 28, 2010, and February
       10 and 14, 2011.

    6. We also find that the $4,000 upward adjustment based on the
       interference caused by the Station to the FAA on February 10, 2011, is
       fully supported by the evidence.  On February 10, 2011, after
       receiving a report from the FAA of interference on aeronautical
       frequency 126.83 MHz, an agent from the Chicago Office determined that
       there was a spurious emission emanating from the Farm Silo on 126.83
       MHz.^  The agent immediately contacted Hoosier, and its owner, Martin
       Hensley, directed the agent to locate the circuit breaker and turn off
       the transmitter. With the assistance of the farm's owner, the agent
       located the circuit breaker and turned off the transmitter. After
       turning off the Station's power, the agent confirmed that the spurious
       emissions on 126.83 MHz had ceased.  While waiting for Mr. Hensley to
       arrive, the agent drove around the area and confirmed that there were
       no other signals in the area on aeronautical frequency 126.83 MHz.
       When Mr. Hensley later arrived at the Farm Silo, he replaced the
       transmitter and the agent confirmed that the Station no long produced
       spurious emissions on 126.83 MHz.^ We therefore find that the proposed
       upward adjustment in the amount of $4,000 is warranted.

    7. We find no basis for reducing the forfeiture based on Hoosier's
       inability to pay. When faced with claims alleging an inability to pay,
       the Commission has determined that gross revenues are generally the
       best indicator of an individual or entity's ability to pay a
       forfeiture.^  As stated in the NAL, 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.^ Hoosier claims
       that it is not required to file tax returns because it has no income.^
       In lieu of tax returns, Hoosier submits a "Financial Statement" that
       it claims is a "standard yearly reporting of a Not for Profit."^ The
       Financial Statement was not prepared according to GAAP and there is no
       evidence that it was prepared by an objective third party. The
       Financial Statement is a single page and lists two categories for each
       year -equity and debt. Under the equity category, which is most
       relevant for our purposes here, the statement lists "income" and "cash
       on hand," which Hoosier indicates were zero for each year.^ We find it
       entirely implausible that a corporation operating a radio station
       could have zero income and zero cash on hand. We therefore conclude
       that the financial documentation submitted by Hoosier is neither a
       reliable nor objective reflection of Hoosier's current financial
       status and we decline to reduce the proposed forfeiture on this basis.

    8. We likewise decline to grant Hoosier's request for cancellation based
       on its history of compliance with the Commission's rules. While it is
       true that no prior sanctions have been issued to Hoosier, the
       investigation at issue here has revealed that Hoosier never
       constructed the Station at the location authorized in the Station's
       license, which was granted in 2008.^ We therefore find that a
       reduction for history of compliance is not warranted.


    9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.204,
       0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Hoosier Public
       Radio Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
       eight thousand dollars ($8,000) for violations of Section 73.1350(a)
       of the Commission's rules.^

   10. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  Hoosier Public Radio Corporation shall
       send electronic notification of payment to on the
       date said payment is made. The payment must be made by check or
       similar instrument, wire transfer, or credit card, and must include
       the NAL/Account Number and FRN referenced above. Regardless of the
       form of payment, a completed FCC Form 159 (Remittance Advice) must be
       submitted.^ When completing the FCC Form 159, enter the Account Number
       in block number 23A (call sign/other ID) and enter the letters "FORF"
       in block number 24A (payment type code).  Below are additional
       instructions you should follow based on the form of payment you

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated.

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101.

   11. Any request for making full payment over time under an installment
   plan should be sent to:  Chief Financial Officer--Financial Operations,
   Federal Communications Commission, 445 12th Street, S.W., Room 1-A625,
   Washington, D.C. 20554.^  If you have questions regarding payment
   procedures, please contact the Financial Operations Group Help Desk by
   phone, 1-877-480-3201, or by e-mail,

   12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
   First Class and Certified Mail, Return Receipt Requested, to Hoosier
   Public Radio Corporation at 15 Wood Street, Greenfield, Indiana, 46140.


   G. Michael Moffitt

   Regional Director

   Northeast Region

   Enforcement Bureau

   ^ 47 C.F.R. S 73.1350(a).

   ^ Hoosier Public Radio Corporation, Notice of Apparent Liability for
   Forfeiture and Order, 27 FCC Rcd 2319 (Enf. Bur. 2012) (NAL). A
   comprehensive recitation of the facts and history of this case can be
   found in the NAL and is incorporated herein by reference.

   ^ Hoosier Public Radio Corporation,  Request for Review at 2-8 (April 10,
   2012) (on file in EB-10-CG-0743) (NAL Response). We do not address in this
   Order any of the issues raised by Hoosier in its NAL Response that do not
   relate to the violations at issue in the NAL. See 47 C.F.R. S 1.80(f)(3).

   ^ NAL Response at 10-13.

   ^ Id.

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

   ^ 47 C.F.R. S 1.80.

   ^ The Commission's Forfeiture Policy Statement and Amendment of Section
   1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
   Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ See BSTA20110216ABX. Although Hoosier first filed an STA request on
   February 14, 2011, it was dismissed on February 16, 2011, because the
   description of the site and geographical coordinates provided in the STA
   request did not match. See BSTA20110214AAJ. See also Letter from Charles
   N. Miller, Engineer, Audio Division, FCC Media Bureau, to Hoosier Public
   Radio Corporation (Feb. 16, 2011) (on file in EB-FIELDNER-12-00004400).

   ^ See BSTA20110216ABX.

   ^ Throughout its NAL Response, Hoosier makes several statements without
   supporting documentation and/or identifying dates regarding STA requests
   it allegedly filed prior to February 2011. See NAL Response at 3  ("the
   first and second request was never acted on," "the two discrete paper
   filed applications were not denied and were accepted by inclusion in
   February 2012 in conjunction with the 3d and 4^th STA request," "WRFM-FM
   has previously provided the copies of two mailed filings for the STA
   requests which were properly filed via mail . . . applications and their
   authenticity were confirmed when Staff granted the current STA," "grant of
   the current STA was not allowed until it was determined the filings were
   in fact made"). Contrary to Hoosier's claim, the Media Bureau's grant of
   the STA request on February 17, 2011, did not validate Hoosier's claim
   that it submitted an STA request prior to February 2011, nor was the STA
   retroactive to the dates on which Hoosier claims it previously submitted
   STA requests. Even if the STA grant could be applied retroactively, it
   would be meaningless with regard to Hoosier's operation at the Farm Silo
   because the STA granted on February 17, 2013, authorized operation at the
   Church Steeple, not the Farm Silo.

   ^ See NAL Response at Exhibit D.

   ^ See NAL Response at 3, 7. Section 73.1635(a)(1) of the Rules, 47 C.F.R.
   S 73.1635(a)(1), provides that a "request for a STA should be filed with
   the FCC in Washington, DC at least 10 days prior to the date of the
   proposed operation." See also Letter from Peter H. Doyle, Chief, Audio
   Division, Media Bureau, to Lauren A. Colby, Esq., Counsel, Humberto Lopez
   dba Benavides Communications, 21 FCC Rcd 1248, 1251, n. 25 (Med. Bur.
   2006) (special temporary authority must be sought to permit the operation
   of a broadcast facility for a limited period at variance from its
   authorization, and that authority must be received prior to the
   commencement of such operation). We also note that Section 73.1635(a)(1)
   of the Rules specifically states that the STA request must be submitted
   with the FCC in Washington, DC. 47 C.F.R. S 73.1635(a)(1). To the extent
   Hoosier argues that it sent copies of the STA requests to the Chicago
   Office (see NAL Response at 7), such copies would not constitute a proper
   filing under Section 73.1635(a)(1) of the Rules. Furthermore, Hoosier
   mistakenly believes that agents from the Chicago Office assented to the
   Station's operation from the Farm Silo because they did not direct him to
   permanently shut down the Station. An agent's goal is to ensure a
   station's compliance with the Commission's rules without disrupting
   service to the station's listeners, if possible. Here, the agents from the
   Chicago Office did not direct Hoosier to shut down the Station, but rather
   advised Hoosier to obtain an STA. In doing so, they neither approved
   operation from the Farm Silo nor impacted the FCC's authority to assess a
   forfeiture for the time period during which Hoosier operated the Station
   from an unauthorized location.

   ^ NAL, 27 FCC Rcd at 2320, para. 4.

   ^ Id. at 2320, para. 4, n. 3.

   ^ PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7
   FCC Rcd 2088 (1992) (forfeiture not deemed excessive where it represented
   approximately 2.02 percent of the violator's gross revenues); Local Long
   Distance, Inc.,  Order of Forfeiture, 15 FCC Rcd 24385 (2000) (forfeiture
   not deemed excessive where it represented approximately 7.9 percent of the
   violator's gross revenues).

   ^ NAL, 27 FCC Rcd at 2322, para. 15.

   ^ NAL Response at 8.

   ^ Id.; see also Exhibit D to NAL Response.

   ^ Under the debt category, Hoosier lists "transmitter package" and
   "facilities." For each year, the transmitter package is valued at $9,000
   while the facilities range in value from $12,000 to $36,000.

   ^ See BLED20081001ATR. Station WRFM-FM's licensed coordinates are 39DEG
   52' 46" North Latitude and 85DEG 38' 11" West Longitude.

   ^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at

   ^ See 47 C.F.R. S 1.1914.

   (continued from previous page....)

                                                 (continued on next page....)

   Federal Communications Commission DA 13-2068


   Federal Communications Commission DA 13-2068