**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Application of             | *  | Facility I.D. No. 3425       |
|                                  | *) |                              |
| **B & E Broadcasting, Inc.**     | ** | NAL/Acct. No.                |
|                                  |    | MB-200741410392              |
| For Renewal of License for       | *  |                              |
|                                  | *) | FRN: 0010019818              |
| Station WSLV(AM)                 | ** |                              |
|                                  |    | File No. BR-20060410ACP      |
| Ardmore, Tennessee               | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: October 15, 2007 Released: October 16, 2007**

By the Chief, Audio Division, Media Bureau:

**I. INTRODUCTION**

1.  The Commission has before it the captioned application of B & E
    Broadcasting, Inc. (the "Licensee"), for renewal of its license for
    commercial Station WSLV(AM), Ardmore, Tennessee (the "Station"). In
    this *Memorandum Opinion and Order and Notice of Apparent Liability
    for Forfeiture ("NAL")* issued pursuant to Sections 309(k) and
    503(b) of the Communications Act of 1934, as amended (the "Act"),
    and Section 1.80 of the Commission's Rules (the "Rules"),[^1] by the
    Chief, Audio Division, Media Bureau, by authority delegated under
    Section 0.283 of the Rules,[^2] we find that the Licensee apparently
    willfully violated Section 73.3539 of the Rules,[^3] by failing to
    file a timely license renewal application for the Station, and
    apparently willfully and repeatedly violated Section 301 of the
    Act,[^4] by engaging in unauthorized operation of the Station after
    its authorization had expired. Based upon our review of the facts
    and circumstances before us, we conclude that the Licensee is
    apparently liable for a monetary forfeiture in the amount of seven
    thousand dollars (\$7,000), and we grant the captioned WSLV(AM)
    renewal application and reinstate the call letters for the Station.

```{=html}
<!-- -->
```
II. **BACKGROUND**

2\. Section 73.3539(a) of the Rules requires that applications for
renewal of license for broadcast stations must be filed "not later than
the first day of the fourth full calendar month prior to the expiration
date of the license sought to be renewed."[^5] An application for
renewal of WSLV(AM)'s license should have been filed by April 1, 2004,
four months prior to the Station's August 1, 2004, license expiration
date,[^6] but was not. Accordingly, on June 8, 2006, the staff wrote to
the Licensee indicating that the Station's license had expired and that
(1) all authority to operate the Station was terminated; and (2) the
Station's call letters were deleted from the Commission's data base. The
Licensee was advised that any operation of the Station was then
unauthorized and must cease immediately.[^7] Upon receipt of the letter,
the Licensee tendered the captioned license renewal application and a
request for Special Temporary Authorization ("STA") for WSLV(AM) to
continue operating pending consideration of the late-filed renewal
application.[^8] The staff granted that STA request on July 7, 2006.[^9]
By the terms of that letter, the authority expired on January 7, 2007.
The Licensee timely sought an extension of the STA on October 11, 2006,
which remains pending.[^10] In the STA request, the licensee explains
that it had prepared a license renewal application for WSLV(AM) but, due
to a miscommunication regarding the filing fee that was to accompany the
license renewal application, the application was never accepted for
filing and processing.[^11]

**III. DISCUSSION**

3\. *Proposed Forfeiture.* In this case, the Licensee has failed to
timely file a license renewal application for WSLV(AM), as required by
Section 73.3539(a) of the Rules. Moreover, it continued Station
operation for nearly two years after its license had expired on August
1, 2004, before filing a license renewal application and a request for
STA to so operate, in violation of Section 301 of the Act. Although the
Licensee explains that the untimely filing was due to a miscommunication
regarding the filing fee that was to accompany the license renewal
application, the application was never accepted for filing and
processed. Although the Licensee indicates that its failure to file a
timely renewal application was inadvertent, broadcast licensees are
obligated to comply fully with the Rules, including timely filing the
station's renewal application and maintaining in effect the station's
authorization.[^12] Here, the Licensee did not do so.

4\. This *NAL* is issued pursuant to Section 503(b)(1)(B) of the Act.
Under that provision, any person who is determined by the Commission to
have willfully or repeatedly failed to comply with any provision of the
Act or any rule, regulation, or order issued by the Commission shall be
liable to the United States for a forfeiture penalty.[^13] Section
312(f)(1) of the Act defines willful as "the conscious and deliberate
commission or omission of \[any\] act, irrespective of any intent to
violate" the law.[^14] The legislative history to Section 312(f)(1) of
the Act clarifies that this definition of willful applies to both
Sections 312 and 503(b) of the Act,[^15] and the Commission has so
interpreted the term in the Section 503(b) context.[^16] Section
312(f)(2) of the Act provides that "\[t\]he term 'repeated,' when used
with reference to the commission or omission of any act, means the
commission or omission of such act more than once or, if such commission
or omission is continuous, for more than one day."[^17]

5.  The Commission\'s *Forfeiture Policy Statement* and Section
    1.80(b)(4) of the Rules establish a base forfeiture amount of
    \$3,000 for the failure to file a required form.[^18] The guidelines
    also specify a base forfeiture amount of \$10,000 for construction
    and/or operation without an instrument of authorization for the
    service.[^19] In determining the appropriate forfeiture amount, we
    may adjust the base amount upward or downward by considering the
    factors enumerated in Section 503(b)(2)(D) of the Act, including
    "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."[^20]

```{=html}
<!-- -->
```
2.  In this case, the Licensee failed to timely file the WSLV(AM)
    renewal application and continued Station operations for nearly two
    years after the Station's license expired on August 1, 2004 before
    filing the appropriate renewal application and a request for STA to
    so operate. Nevertheless, because it had previously been licensed to
    operate Station WSLV(AM), the latter transgression is not comparable
    to \"pirate\" wireless operations, which typically have been subject
    to forfeitures of approximately \$10,000. Taking into consideration
    these facts and all of the factors required by Section 503(b)(2)(D)
    of the Act and the *Forfeiture Policy Statement*, we propose a
    forfeiture for the full \$3,000 amount for the failure to timely
    file the renewal application and STA request, but reduce the
    proposed forfeiture for the unauthorized operation from the \$10,000
    base amount to \$4,000.[^21] Thus, we propose a forfeiture in the
    total amount of \$7,000.

3.  *License Renewal Application.* In evaluating an application for
    license renewal, the Commission's decision is governed by Section
    309(k) of the Act.[^22] That section provides that if, upon
    consideration of the application and pleadings, we find that (1) the
    station has served the public interest, convenience, and
    necessity; (2) there have been no serious violations of the Act or
    the Rules; and (3) there have been no other violations which, taken
    together, constitute a pattern of abuse, we are to grant the renewal
    application.[^23] If, however, the licensee fails to meet that
    standard, the Commission may deny the application -- after notice
    and opportunity for a hearing under Section 309(e) of the Act -- or
    grant the application "on terms and conditions that are appropriate,
    including a renewal for a term less than the maximum otherwise
    permitted."[^24]

4.  We find that the Licensee's violations of Section 73.3539 of the
    Rules and Section 301 of the Act do not constitute "serious
    violations" warranting designation for evidentiary hearing.
    Moreover, we find no evidence of violations that, when considered
    together, evidence a pattern of abuse.[^25] Further, we find that
    Station WSLV(AM) served the public interest, convenience, and
    necessity during the subject license term. We will, therefore, grant
    the license renewal application below.

**IV. ORDERING CLAUSES**

5.  Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Section 1.80 of the
    Commission's Rules, that B & E Broadcasting, Inc. is hereby NOTIFIED
    of its APPARENT LIABILITY FOR FORFEITURE in the amount of seven
    thousand dollars (\$7,000) for its apparent willful violation of
    Section 73.3539 of the Commission's Rules and apparent willful and
    repeated violation of Section 301 of the Communications Act of 1934,
    as amended.

6.  IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    Rules, that, within thirty (30) days of the release date of this
    *NAL,* B & E Broadcasting, Inc. SHALL PAY the full amount of the
    proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

7.  Payment of the proposed 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 in the caption above. Payment by check or money order may
    be mailed to Federal Communications Commission, at P.O. Box 358340,
    Pittsburgh, Pennsylvania 15251-8340. Payment by overnight mail may
    be sent to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670,
    Pittsburgh, Pennsylvania 15251. Payment by wire transfer may be made
    to ABA Number 043000261, receiving bank Mellon Bank, and account
    number 911-6106.

8.  The response, if any, must be mailed to Office of the Secretary,
    Federal Communications Commission, 445 12^th^ Street, S.W.,
    Washington D.C. 20554, ATTN: Peter H. Doyle, Chief, Audio Division,
    Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.

9.  The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the respondent
    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
    respondent's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

10. Requests for full payment of the forfeiture proposed in this *NAL*
    under the installment plan should be sent to: Associate Managing
    Director-Financial Operations, 445 12th Street, S.W., Room 1-A625,
    Washington, D.C. 20554.[^26]

11. IT IS FURTHER ORDERED, that the call sign WSLV(AM) IS REINSTATED.

12. IT IS FURTHER ORDERED, pursuant to Section 309(k) of the
    Communications Act of 1934, as amended, that the license renewal
    application of B & E Broadcasting, Inc. for Station WSLV(AM),
    Ardmore, Tennessee (File No. BR-20060410ACP) IS GRANTED.

13. IT IS FURTHER ORDERED that a copy of this *NAL* shall be sent, by
    First Class and Certified Mail-Return Receipt Requested, to B & E
    Broadcasting, Inc., P.O. Box 147, Hartsville, Tennessee 37074.

FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle

Chief, Audio Division,

Media Bureau

[^1]: 47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80.

[^2]: *See* 47 C.F.R. § 0.283.

[^3]: *See* 47 C.F.R. § 73.3539.

[^4]: *See* 47 U.S.C. § 301.

[^5]: 47 C.F.R. § 73.3539(a).

[^6]: *See* 47 C.F.R. §§ 73.1020, 73.3539(a).

[^7]: *Letter to B & E Broadcasting, Inc. from* *Chief, Audio Division,
    Media Bureau*, Ref. 1800B3-MW (MB June 8, 2006).

[^8]: *See* File No. BLSTA_20060614ABW (the "STA Request").

[^9]: *Letter to Mr. Ernie Ashworth,* Reference 1800B3 (MB Jul 7, 2005).

[^10]: *See* File No. 20061011AFC.

[^11]: We have examined the Commission's records and electronic data
    bases, and we can find no record of an earlier attempt to file
    electronically a license renewal application for WSLV(AM).

[^12]: *See, e.g, Hemmingford Media, Inc*., Forfeiture Order, 14 FCC Rcd
    2940, 2941-2 (CIB 1999) (responsibility for complying with terms of
    station license "rests solely and exclusively with the licensee")
    (citing *Empire Broadcasting Corp*., Memorandum Opinion and Order,
    25 FCC 2d 68 (1970).

[^13]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. 1.80(a)(1).

[^14]: 47 U.S.C. § 312(f)(1).

[^15]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^16]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^17]: 47 U.S.C. § 312(f)(2).

[^18]: *See Forfeiture Policy Statement and Amendment of Section 1.80(b)
    of the Rules to Incorporate the Forfeiture Guidelines,* Report and
    Order, 12 FCC Rcd 17087, 17113-15 (1997) (\"*Forfeiture Policy
    Statement*\"), *recon. denied*, 15 FCC Rcd 303 (1999); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section I.

[^19]: A broadcast station requires an authorization from the Commission
    to operate. *See* 47 U.S.C. § 301.

[^20]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement,*
    12 FCC Rcd at 17100; 47 C.F.R. § 1.80(b)(4).

[^21]: *See, e.g., Discussion Radio Incorporated*, Memorandum Opinion
    and Order, 19 FCC Rcd 7433, 7438 (2004); *Gospel Media, Inc*.,
    Letter, 19 FCC Rcd 15600 (MB 2004). Although in *Gospel Media*, the
    Bureau imposed a proposed forfeiture of \$3,000 for unauthorized
    operation, the unauthorized operation lasted only two weeks. The
    \$4,000 forfeiture proposed here for unauthorized operation is
    analogous to use of an unauthorized frequency by a land mobile
    station holding a license for a different frequency. *See, e.g., In
    the Matter of Dave Mitchell,* 20 FCC Rcd (EB 2005); *In the Matter
    of Joselyn Gordon*, Forfeiture Order, 19 FCC Rcd 23557 (EB 2004).

[^22]: 47 U.S.C. § 309(k).

[^23]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read
    as described by Section 204(a) of the Telecommunications Act of
    1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^24]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^25]: For example, we do not find here that the Licensee\'s Station
    operation \"was conducted in an exceedingly careless, inept and
    negligent manner and that the licensee is either incapable of
    correcting or unwilling to correct the operating deficiencies.\"
    *See Heart of the Black Hills Stations*, Decision, 32 FCC 2d 196,
    198 (1971). Nor do we find on the record here that \"the number,
    nature and extent\" of the violations indicate that \"the licensee
    cannot be relied upon to operate \[the station\] in the future in
    accordance with the requirements of its licenses and the
    Commission\'s Rules.\" *Heart of the Black Hills Stations*, 32 FCC
    2d at 200. *See also Center for Study and Application of Black
    Economic Development*, Hearing Designation Order, 6 FCC Rcd 4622
    (1991), *Calvary Educational Broadcasting Network, Inc*., Hearing
    Designation Order, 7 FCC Rcd 4037 (1992).

[^26]: *See* 47 C.F.R. § 1.1914.