**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | *  | Facility I.D. No**.** 30442  |
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| **John Reynolds**                | ** | NAL/Acct. No. MB200641410062 |
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| For Renewal of License for       | *  | FRN: 0009598376              |
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| FM Translator Station W267AD     | ** | File No. BRFT-20030917AAR    |
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| Bryson City, North Carolina      | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: July 25, 2006 Released: July 27, 2006**

By the Chief, Media Bureau:

**I. INTRODUCTION**

1\. The Commission has before it the captioned application of John
Reynolds (the "Licensee") for renewal of his license for FM translator
Station W267AD, Bryson City, North Carolina (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] 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 one thousand five hundred dollars (\$1,500),
and we grant the captioned W267AD 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."[^4] An application for
renewal of W267AD's license should have been filed by August 1, 2003,
four months prior to the Station's December 1, 2003, license expiration
date,[^5] but was not. However, the Licensee did file the renewal
application on September 17, 2003, about 10 weeks before the Station's
license expired. The Licensee does not provide an explanation for the
untimely filing.

**III. DISCUSSION**

3\. *Proposed Forfeiture.* In this case, the Licensee has admitted that
it failed to timely file a license renewal application for W267AD, as
required by Section 73.3539(a) of the Rules.

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.[^6] 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.[^7] 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,[^8] and the Commission has so
interpreted the term in the Section 503(b) context.[^9]

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.[^10] In determining the
appropriate forfeiture amount, we must consider 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."[^11]

6\. In this case, the Licensee failed to timely file the W267AD renewal
application but did file prior to the expiration of the Station's
license. 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 will reduce the proposed forfeiture for the late filing
from the base amount to \$1,500.[^12]

7\. *License Renewal Application.* In evaluating an application for
license renewal, the Commission's decision is governed by Section 309(k)
of the Act.[^13] 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.[^14] 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."[^15]

8\. We find that the Licensee's apparent violation of Section 73.3539 of
the Rules does not constitute a "serious violation" warranting
designation for evidentiary hearing. Moreover, we find no evidence of
violations that, when considered together, evidence a pattern of
abuse.[^16] Further, we find that Station W267AD served the public
interest, convenience, and necessity during the 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 John Reynolds is hereby NOTIFIED of his
APPARENT LIABILITY FOR FORFEITURE in the amount of \$1,500 for his
apparent willful violation of Section 73.3539 of the Commission's Rules.

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,*
John 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.[^17]

15\. IT IS FURTHER ORDERED that, pursuant to Section 309(k) of the
Communications Act of 1934, as amended, the license renewal application
of John Reynolds for Station W267AD, Bryson City, North Carolina (File
No. BRFT-20030917AAR) 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 John
Reynolds, Station W267AD, 116 Mary Miles Drive, Danville, Virginia 24540
and to his counsel, Lauren A. Colby, Esquire, Law Office of Lauren A.
Colby, 10 E. Fourth Street, P.O. Box 113, Frederick, Maryland
21705-0113.

FEDERAL COMMUNICATIONS COMMISSION

Donna C. Gregg

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]: 47 C.F.R. § 73.3539(a).

[^5]: *See* 47 C.F.R. §§ 73.1020, 73.3539(a).

[^6]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. § 1.80(a)(1).

[^7]: 47 U.S.C. § 312(f)(1).

[^8]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^9]: *See Southern California Broadcasting Co.*, Memorandum Opinion and
    Order, 6 FCC Rcd 4387, 4388 (1991).

[^10]: *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.

[^11]: 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).

[^12]: *See Discussion Radio, Inc.*, Memorandum Opinion and Order, 19
    FCC Rcd 7433 (2004) at ¶ 15.

[^13]: 47 U.S.C. § 309(k).

[^14]: 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). *See Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^15]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^16]: 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.\"
    *Heart of the Black Hills Stations*, 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*, 6 FCC Rcd 4622
    (1991) and *Calvary Educational Broadcasting Network, Inc*., 7 FCC
    Rcd 4037 (1992).

[^17]: *See* 47 C.F.R. § 1.1914.