**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+-----------------------------------+-----------------------------------+
| In the Matter of )                | File Number 98080351              |
|                                   |                                   |
| )                                 | NAL/Acct. No. x32080019           |
|                                   |                                   |
| )                                 |                                   |
|                                   |                                   |
| **KENNETH PAUL HARRIS, SR.** ) )  |                                   |
|                                   |                                   |
| )                                 |                                   |
|                                   |                                   |
| Proposed Assignee, Station        |                                   |
| KSRW(FM) ) )                      |                                   |
|                                   |                                   |
| )                                 |                                   |
|                                   |                                   |
| Childress, Texas )                |                                   |
|                                   |                                   |
| )                                 |                                   |
+-----------------------------------+-----------------------------------+

## FORFEITURE ORDER 

**Adopted: December 5, 2000 Released: December 6, 2000**

By the Chief, Enforcement Bureau:

#### I. INTRODUCTION

1\. In this Forfeiture Order ("Order"), we issue a monetary forfeiture
in the amount of two thousand dollars (\$2,000.00) against Kenneth Paul
Harris, Sr. ("Harris") for apparently violating Section 310(d) of the
Communications Act of 1934 ("Act"), as amended[^1], and Section 73.3540
of the Commission\'s rules,[^2] by assuming control of commercial radio
Station KSRW(FM), Childress, TX, from Kevin Hackler ("Hackler") without
first obtaining Commission approval.

2\. On July 14, 2000, the Chief, Enforcement Bureau issued a Notice of
Apparent Liability ("NAL") for Forfeiture in the amount of eight
thousand dollars (\$8,000.00).[^3] Harris has filed a response. Based on
the information before us, we affirm the forfeiture but reduce its
amount.

#### II. BACKGROUND

3\. In response to a confidential complaint, we investigated allegations
that Hackler, then licensee of Station KSRW(FM), transferred control of
the station to Harris without obtaining the required prior authorization
of the Commission. The complaint cited locally published lien transfer
and sale documents suggesting that transfer of control of the station
took place on or about July 8, 1999, even though the licensee had not
filed the appropriate application with the Commission. On July 14, 2000,
pursuant to Section 503(b) of the Act,[^4] we issued NALs in the amount
of \$8,000 each against both Harris and Hackler for engaging in an
unauthorized transfer of station control.

4\. On August 11, 2000, we received Harris' response to the NAL issued
against him. In the response, Harris does not dispute the NAL's factual
findings, but argues that reduction or cancellation of the forfeiture is
warranted because he violated the pertinent rules "unintentionally," and
in order to save the station from going dark due to financial troubles.
He contends that local bankers required him to conclude station asset
transactions under time constraints that did not allow him to first
obtain Commission approval. Harris further submits that he is unable to
pay the forfeiture amount. In this connection, he provides prior year
tax returns that indicate that his gross income was \$13,665 for 1997,
\$11,393 for 1998, and \$107,620 for 1999.[^5]

#### III. DISCUSSION

5\. As the NAL indicates, the forfeiture amount in this case was
determined in accordance with Section 503(b) of the Act, Section 1.80 of
the Commission's rules, and the Commission's [Forfeiture Policy
Statement]{.underline}.[^6] Section 503(b) of the Act requires that, in
evaluating Harris' response, the Commission take into account the
nature, circumstances, extent, and gravity of the violation, and with
respect to the violator, the degree of culpability, history of prior
offenses, ability to pay, and other factors as justice may require. As
noted above, Harris contends that mitigation is warranted due to the
"unintentional" nature of the violation and because he cannot pay the
\$8,000 forfeiture amount without incurring substantial financial
hardship.

6\. We reject Harris' first argument. There can be no question that
Harris intended to engage in the transaction that resulted in the
unauthorized transfer of control. Although Harris claims that he was
ignorant of the significance of his act, he does not claim that he
sought or relied on advice from the FCC or knowledgeable communications
counsel prior to undertaking it. Moreover, he knew that FCC approval is
ultimately required prior to transferring control of a broadcast
licensee. The mere fact that Harris circumvented the application process
in order to save the station from going dark does not mitigate the
conclusion that he knowingly and willfully violated the pertinent
Commission rule. In any event, the intention to engage in a transaction
without FCC approval is sufficient to constitute a violation of Section
73.3540 of the Commission's rules. [See]{.underline} [Southern
California Broadcasting Co.]{.underline}, 6 FCC Rcd 4387-88 (1991).
Under Section 503(b), anyone who "willfully" or "repeatedly" fails to
comply with the Communications Act or the Commission's rules may be
liable for forfeiture. Here, Harris' conduct was apparently both
"willful" because he intended to engage in the transaction, and
"repeated" because it continued until July 14, 2000.[^7]

7\. With regard to Harris' ability to pay, however, we find that the
record warrants a substantial downward adjustment of the forfeiture
amount. Although other factors may be considered, the best indicator of
a rule violator's ability to pay is its gross revenues. [See,
e.g.]{.underline}, [PJB Communications of Virginia, Inc.]{.underline}, 7
FCC Rcd 2088 (1992). In a recent case, we found that prior revenues
comparable to Harris' warranted a substantial reduction in the
forfeiture amount. [See]{.underline} [In re Booth-Newsome Broadcasting,
Inc.]{.underline} (DA 00-1695), \_\_\_ FCC Rcd \_\_\_ (July 31, 2000)
(reduction from \$20,000 to \$5,000 warranted where prior three-year
revenues averaged, as here, less than \$50,000 annually).[^8] Under
these circumstances, we conclude that it is appropriate to reduce
Harris' forfeiture from \$8,000 to \$2,000.

8\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Act[^9], and Sections 0.111, 0.311 and 1.80(f)(4) of the Commission\'s
rules[^10], Kenneth Paul Harris, Sr., IS LIABLE FOR A MONETARY
FORFEITURE in the amount of two thousand dollars (\$2,000) for violating
the provisions of the Communications Act and the Commission\'s rules
requiring persons to obtain Commission authorization prior to assuming
station control, pursuant to Section 310(d) of the Act and Section
73.3540 of the Commission's rules.

9\. Payment of the forfeiture shall be made in the manner provided for
in Section 1.80 of the Commission's rules[^11] 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.[^12] Payment may be
made by mailing a check or similar instrument, payable to the order of
the Federal Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should note the \[NAL/Acct. No.\] referenced above. Requests for full
payment under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 12th Street, S.W., Washington, D.C.
20554.[^13]

10\. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by Certified Mail Return \-- Receipt Requested to Counsel for
Kenneth Paul Harris, Sr., Cary Tepper, Esq. at Booth,

Freret, Imlay & Tepper, P.C., 5101 Wisconsin Avenue, N.W., Suite 307,
Washington, D.C. 20016-4120.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 310.

[^2]: 47 C.F.R. § 73.3540.

[^3]: *See* [In the Matter of Kenneth Paul Harris, Sr.]{.underline}, 15
    FCC Rcd 12933 (July 14, 2000).

[^4]: 47 U.S.C. § 503(b).

[^5]: ^?^ This figure reflects the station's gross revenue. Harris'
    personal gross income for 1999 was \$21,889.

[^6]: ^?^ *See Report and Order*, [The Commission's Forfeiture Policy
    Statement and Amendment of Section 1.80 of the Commission's
    Rules]{.underline}, 12 FCC Rcd 170876 (1997), *recon. denied*, 15
    FCC Rcd 303 (1999).

[^7]: ^?^ On this date the Commission granted the appropriate assignment
    of license application from Hackler to Harris. *See* File No.
    BALH-19990927AAM.

[^8]: ^?^ Including the station's 1999 gross revenues, Harris'
    three-year average gross income is approximately \$44,000. Harris'
    average personal income for the same years is substantially less --
    only \$15,649.

[^9]: ^?^ 47 U.S.C. § 503(b).

[^10]: ^?^ 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^11]: ^?^ 47 C.F.R. § 1.80.

[^12]: ^?^ 47 U.S.C. § 504(a).

[^13]: ^?^ *See* 47 C.F.R. § 1.1914.