**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Horne Radio, LLC ) File No. EB-02-AT-341

Licensee of Radio Station WMTN )

Morristown, Tennessee ) NAL/Acct. No. 200332480011

Knoxville, Tennessee )

) FRN 0004-3408-99

## FORFEITURE ORDER 

**Adopted: March 30, 2004 Released: April 1, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of four thousand dollars (\$4,000) to Horne
    Radio, LLC ("Horne"), licensee of AM broadcast station WMTN, for
    willful and repeated violations of Section 73.1745(a) of the
    Commission's Rules ("Rules").[^1] The noted violation involves
    Horne's failure to maintain the authorized power.

2.  On November 5, 2002, the Commission's Atlanta, Georgia, Field Office
    ("Atlanta Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Horne for a forfeiture in the amount of
    four thousand dollars (\$4,000).[^2] Horne filed its response to the
    *NAL* on December 6, 2002.

####  II. BACKGROUND

3.  On July 30, 2002, an agent from the Atlanta Office monitored WMTN
    and made field strength measurements indicating that Horne did not
    reduce WMTN's power after sunset.[^3] The agent monitored WMTN until
    11:00 p.m. and observed no reduction of WMTN's power.

4.  On July 31, 2002, the same agent again monitored WMTN and made field
    strength measurements indicating that Horne did not reduce WMTN's
    power after sunset. The agent again monitored WMTN until 11:00 p.m.
    and observed no reduction of WMTN's power.

5.  The FCC agent contacted WMTN's general manager on September
    12, 2002. The general manager stated that he was aware of WMTN's
    overpower operation during July 2002, that WMTN's transmitter
    control system was inoperative and that the operator on duty had
    failed to lower the station's power at sunset.

6.  On November 5, 2002, the Atlanta Office issued a *NAL* for a
    forfeiture in the amount of \$4,000 to Horne for willful and
    repeated violation of Section 73.1745(a) of the Rules. Horne
    responded to the *NAL* on December 6, 2002, seeking cancellation or
    reduction of the proposed monetary forfeiture. Horne does not
    dispute the violation of Section 73.1745(a). It states that it is
    taking every step possible to correct that violation including
    replacement of the general manager. Horne argues that payment of the
    proposed forfeiture would be a financial hardship. To support its
    financial hardship argument, Horne provides copies of its 1999, 2000
    and 2001 federal income tax returns.

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III. **DISCUSSION**

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7.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^4] Section 1.80 of the Rules,[^5] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC
    Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999) ("*Policy
    Statement*"). Section 503(b) of the Act requires that, in examining
    Horne's 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, any history of prior
    offenses, ability to pay, and such other matters as justice may
    require.[^6]

8.  Section 73.1745(a) of the Rules prohibits broadcast stations from
    operating at times or with modes or power other than those specified
    by the station's license. The FCC agent's observations and the
    admission of WMTN's general manager establish that WMTN operated
    with excessive nighttime power on at least two occasions. We
    conclude that Horne willfully[^7] and repeatedly[^8] violated
    Section 73.1745(a) of the Rules.

9.  No mitigation is warranted on the basis of Horne's correction of the
    violation. As the Commission stated in *Seawest Yacht Brokers*, 9
    FCC Rcd 6099, 6099 (1994), "corrective action taken to come into
    compliance with Commission rules or policy is expected, and does not
    nullify or mitigate any prior forfeitures or violations." [^9]

10. In support of its financial hardship claim, Horne submits copies of
    its 1999, 2000 and 2001 federal income tax returns. The Commission
    has determined that, in general, a licensee\'s gross revenues are
    the best indicator of its ability to pay a forfeiture.[^10] After
    reviewing the financial data submitted, we find that the proposed
    forfeiture amount should not be reduced on the basis of financial
    hardship. [^11]

11. We have examined Horne's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that
    Horne willfully and repeatedly violated Section 73.1745(a) of the
    Rules. We also find that there is no basis for cancellation or
    reduction of the proposed monetary forfeiture.

    **IV. ORDERING CLAUSES**

12. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^12]
    Horne **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of four
    thousand dollars (\$4,000) for willful and repeated violation of
    Section 73.1745(a) of the Rules.

13. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules 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.[^13] 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 reference NAL/Acct. No. 200332480011 and FRN
    0004-3408-99. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^14]

14. **IT IS FURTHER ORDERED** that copies of this *Order* shall be sent
    by Certified Mail Return Receipt Requested and by First Class Mail
    to Horne Radio, LLC, P.O. Box 24250, Knoxville, Tennessee
    37933-2250.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 73.1745(a).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332480011 (Enf. Bur., Atlanta Office, released November 5, 2002).

[^3]: According to its license, WMTN is authorized to operate with a
    power of 5,000 watts during daylight hours and 96 watts between
    sunset and sunrise.

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that "\[t\]he term 'willful,' ... means
    the conscious and deliberate commission or omission of such act,
    irrespective of any intent to violate any provision of this Act or
    any rule or regulation of the Commission authorized by this Act
    ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^8]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The *Conference
    Report* for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^9]: *See also Callais Cablevision, Inc.,* 17 FCC Rcd 22626, 22629
    (2002); *Radio Station KGVL, Inc.,* 42 FCC 2d 258, 259 (1973); and
    *Executive Broadcasting Corp*., 3 FCC 2d 699, 700 (1966).

[^10]: *See PJB Communications of Virginia, Inc.,* 7 FCC Rcd 2088, 2089
    (1992).

[^11]: *Id.* at 2089 (forfeiture not deemed excessive where it
    represented approximately 2.02 percent of the violator's gross
    revenues); *Hoosier Broadcasting Corporation*, 15 FCC Rcd 8640, 8641
    (Enf. Bur. 2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    revenues); *Afton Communications Corp.*, 7 FCC Rcd 6741 (Com. Car.
    Bur. 1992) (forfeiture not deemed excessive where it represented
    approximately 3.9 percent of the violator's gross revenues).

[^12]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^13]: 47 U.S.C. § 504(a).

[^14]: *See* 47 C.F.R. § 1.1914.