Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

)

**NATCHEZ COMMUNICATIONS, INC.** ) File No. 99-OR-156

FM Station WTYJ )

Fayette, Mississippi ) **NAL/Acct. No. 915OR0003**

**MEMORANDUM OPINION AND ORDER**

**Adopted:** August 15, 2000 **Released:** August 17, 2000

By the Chief, Enforcement Bureau:

# I. INTRODUCTION

1\. In this Memorandum Opinion and Order ("Order"), we deny the petition
for reconsideration filed on April 3, 2000, by Natchez Communications,
Inc. ("Natchez"), the licensee of FM Station WTYJ, Fayette, Mississippi.
Natchez seeks reconsideration of the *Forfeiture Order,*[^1] in which
the Chief, Enforcement Bureau ("Bureau") found Natchez liable for a
monetary forfeiture in the amount of \$5,000 for willful violation of
Section 73.1213(b) of the Commission's Rules ("Rules")[^2] concerning
tower lighting and painting. For the reasons discussed below, we affirm
the monetary forfeiture in the amount of \$5,000.

**II. BACKGROUND**

2\. Natchez is the owner of WTYJ's antenna tower ("tower"). On March 19,
1999, an agent from the Commission's New Orleans Field Office ("New
Orleans Office") observed that the tower's lights were not functioning
and that its paint was severely chipped and faded. On the basis of these
observations, the New Orleans Office issued Natchez an Official Notice
of Violation on March 31, 1999. On the night of May 13, 1999, and during
the day on May 14, 1999, the agent observed that the tower's lights were
still not functioning and that the tower had not been repainted.

3\. On the basis of the foregoing observations, the New Orleans Office
issued a Notice of Apparent Liability ("NAL") to Natchez on July 8,
1999, proposing a monetary forfeiture of ten thousand dollars (\$10,000)
for willful violation of Section 73.1213(b) of the Rules (antenna tower
with defective paint and nonfunctioning lighting ).[^3] In Natchez's
response to the NAL, it requested reduction of the proposed monetary
forfeiture to \$1,000. On March 3, 2000, the Bureau released the
*Forfeiture Order*, which assessed a monetary forfeiture of \$5,000 for
willful violation of Section 73.1213(b).

**DISCUSSION**

4\. The Bureau issued the *Forfeiture Order* pursuant to Section 503 of
the Communications Act of 1934, as amended ("Act"), 47 U.S.C. § 503, and
Section 1.80 of the Rules. In assessing the forfeiture amount, the
Bureau followed the forfeiture standards established in Section 503 of
the Act and *The Commission\'s Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate Guidelines*, 12 FCC Rcd
17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999) (*\"Policy
Statement\"*). 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 other such matters as
justice may require. 47 U.S.C. § 503(b)(2)(D). Taking those factors into
account, including Natchez's ability to pay, the Bureau imposed a
\$5,000 forfeiture -- a reduction by one half from the \$10,000
forfeiture proposed by the NAL.

5\. Natchez seeks a further reduction of the forfeiture to \$1,000 on
the basis of its alleged inability to pay \$5,000. The Bureau decided,
on the basis of financial documentation provided by Natchez, that
Natchez was able to pay \$5,000. Natchez provides no new financial
documentation to support its claim that it cannot pay \$5,000. Rather,
Natchez argues that a \$5,000 forfeiture is excessive because: it
constitutes nearly 6% of Natchez's gross revenues for 1998; Natchez
sustained net losses for the years 1996-1998 which the Bureau did not
consider in the *Forfeiture Order*; and payment of a \$5,000 forfeiture
would cause "severe financial hardship" to Natchez's business.

6\. Natchez's arguments do not justify any further reduction of the
forfeiture amount. The Commission has not specified any fixed percentage
of gross revenues that [per se]{.underline} exceeds a licensee's ability
to pay. Moreover, we will not reduce Natchez's forfeiture on the basis
of financial losses. When a licensee has presented no other persuasive
evidence that payment of a forfeiture would cause financial difficulty,
the presence of financial loss does not by itself necessarily establish
a licensee's inability to pay a forfeiture. *See Independent
Communications, Inc.*, 14 FCC Rcd 9605, 9610 (1999), in which the
licensee sustained a net loss of \$520,667 (on revenues of \$516,147).
Although Natchez claims that paying a \$5,000 forfeiture would cause
"severe financial hardship" to its business, it has provided no
persuasive information other than financial losses[^4] to support this
claim.

7\. We have examined Natchez's petition for reconsideration pursuant to
the statutory factors set forth above, and in conjunction with the
*Policy Statement* as well. As a result of our reconsideration, we
conclude that Natchez has failed to provide a sufficient justification
for further reducing the forfeiture amount.

# ORDERING CLAUSES 

8\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 1.106 of
the Rules, Natchez's petition for reconsideration of the *Forfeiture
Order* (NAL/Acct. No. 915OR0003)released March 3, 2000, **IS**
**DENIED.**

9\. **IT IS FURTHER ORDERED** that, pursuant to Section 503(b) of the
Act[^5] and Section 1.80(f) of the Rules,[^6] Natchez Communications,
Inc., shall, within 30 days of the release of this Order, pay the amount
of \$5,000 for willful violation of Section 73.1213(b) of the Rules. If
the forfeiture is not paid within the specified period, the case may be
referred to the Department of Justice for collection pursuant to Section
504(a) of the Act.[^7] Payment may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995 or 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. 915OR0003. Requests for full payment under
an installment plan should be sent to: Chief, Credit and Debt Management
Center, 445 12^th^ Street, S.W., Washington, D.C. 20554. [^8]

10\. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent
by certified mail, return receipt requested, to counsel for Natchez
Communications, Inc., Stephen Diaz Gavin, Esq., Patton Boggs LLP, 2550 M
Street, N.W., Washington, D.C. 20037.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

> Chief, Enforcement Bureau

[^1]: 13 FCC Rcd 16793 (Compl. & Inf. Bureau 1998)

[^2]: 47 C.F.R. § 73.1213(b).

[^3]: *Notice of Apparent Liability*, NAL Acct. No. 915OR0003 (Released
    July 8, 1999).

[^4]: According to Natchez's federal tax income tax returns, Natchez was
    actually profitable during 1996 and 1997 but experienced losses for
    tax purposes because of loss carryovers from previous years.

[^5]: 47 U.S.C. § 503(b)

[^6]: 47 C.F.R. § 1.80(f)

[^7]: 47 U.S.C. § 504(a).

[^8]: *See* 47 C.F.R. § 1.1914.