**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | *  | Facility I.D. No**.** 73056  |
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| **Del Matthew Reynolds**         | ** | NAL/Acct. No. MB200741410090 |
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| For Renewal of License for       | *  | FRN: 0004822987              |
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| FM Translator Station W247AC     | ** | File No. BRFT-20050429ADM    |
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| Green Bay, Wisconsin             | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: January 31, 2007 Released: March 7, 2007**

By the Chief, Media Bureau:

**I. INTRODUCTION**

1\. The Commission has before it the captioned application of Del
Matthew Reynolds (the "Licensee") for renewal of his license for FM
translator Station W247AC, Green Bay, Wisconsin (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, 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
by failing to timely file a license renewal application for the
Station,[^3] and 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 W247AC license renewal
application.

**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 the Station's license should have been filed by August 1,
2004, four months prior to the Station's December 1, 2004, license
expiration date,[^6] but was not. The Licensee did not file the
application until April 29, 2005, nearly five months after the Station's
license had expired. He failed to seek special temporary authorization
("STA") to operate after the license had expired. The Licensee provides
no explanation for the untimely filing of the renewal application and
for his failure to seek STA.

**III. DISCUSSION**

3\. *Proposed Forfeiture.* In this case, the record indicates that the
Licensee has failed to timely file a license renewal application for the
Station, as required by Section 73.3539 of the Rules. Moreover, he
continued operating the Station for more than five months after the
license had expired on April 1, 2005, before filing the appropriate
renewal application and never sought STA to so operate, in violation of
Section 301 of the Act. The Licensee was obligated to fully comply with
the Rules, including timely filing the Station's renewal application and
maintaining in effect the Station authorization.[^7] He 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.[^8] 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.[^9] 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,[^10] and the Commission has so
interpreted the term in the Section 503(b) context.[^11] 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."[^12]

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.[^13] The guidelines also
specify a base forfeiture amount of \$10,000 for station construction
and/or operation without an instrument of authorization for the
service.[^14] 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."[^15]

6\. In this case, the Licensee failed to timely file the W247AC renewal
application and continued operating the Station for nearly five months
after the Station's license had expired on December 1, 2004, before
filing the appropriate application, never seeking STA to so operate.
Nevertheless, because he had previously been licensed to operate the
Station, the latter transgressions are 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
for the Station, but reduce the proposed forfeiture for the unauthorized
operation from the \$10,000 base amount to \$4,000.[^16] Thus, we
propose a forfeiture in the total amount of \$7,000.

7\. *License Renewal Application.* In evaluating an application for
license renewal, the Commission's decision is governed by Section 309(k)
of the Act.[^17] 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.[^18] 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."[^19]

8\. We find that the Licensee's apparent 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.[^20] Further, we find that FM translator Station
W247AC served the public interest, convenience, and necessity during its
subject license term. We will therefore grant the license renewal
application below.

**IV. ORDERING CLAUSES**

9\. 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 Del Matthew Reynolds is hereby NOTIFIED of his
APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand
dollars (\$7,000) for his apparent willful violation of Section 73.3539
of the Commission's Rules and willful and repeated violation of Section
301 of the Communications Act of 1934, as amended.

10\. 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,*
Del Matthew Reynolds SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.

11\. 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 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.

12\. 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.

13\. 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.

14\. 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.[^21]

15\. IT IS FURTHER ORDERED that, pursuant to Section 309(k) of the
Communications Act of 1934, as amended, the license renewal application
for FM translator Station W247AC, Green Bay, Wisconsin (File No.
BRFT-20050429ADM) IS GRANTED.

16\. IT IS FURTHER ORDERED, that copies of this *NAL* shall be sent, by
First Class and Certified Mail, Return Receipt Requested, to Del Matthew
Reynolds, 4460 NW US Highway 23, Cheboygan, Michigan 49721 and to his
counsel, Denise Moline, Esquire, 1212 So. Naper Blvd., #119-215,
Naperville, Illinois 60540-2706.

FEDERAL COMMUNICATIONS COMMISSION

Monica Shah Desai

Chief, 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]: *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)).

[^8]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. § 1.80(a)(1).

[^9]: 47 U.S.C. § 312(f)(1).

[^10]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^11]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^12]: 47 U.S.C. § 312(f)(2).

[^13]: *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.

[^14]: A broadcast station requires an authorization from the Commission
    to operate. *See* 47 U.S.C. § 301.

[^15]: 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). 47 C.F.R. § 1.80(b)(4),
    note to paragraph (b)(4), Section II.

[^16]: *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 and the
    applicant did not allow its STA for continued operations to expire.
    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*, Forfeiture Order, 20 FCC Rcd 1366 (EB
    2005); *In the Matter of Joselyn Gordon*, Forfeiture Order, 19 FCC
    Rcd 23557 (EB 2004).

[^17]: 47 U.S.C. § 309(k).

[^18]: 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).

[^19]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^20]: For example, we do not find here that the Licensee\'s operation
    of the Station \"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).

[^21]: *See* 47 C.F.R. § 1.1914.