Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number EB-06-DT-277        |
|                                  |   |                                 |
| Christian Family Network, Inc.   | ) | NAL/Acct. No. 200732360001      |
|                                  |   |                                 |
| Former Licensee of AM Station    | ) | FRN: 0010140358                 |
| WOLY                             |   |                                 |
|                                  | ) |                                 |
| Battle Creek, Michigan           |   |                                 |
|                                  | ) |                                 |
| Facility ID #11032               |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+
|                                  |   |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted:** July 14, 2008 **Released:** July 17, 2008

By the Acting Regional Director, Northeast Region, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of ten thousand dollars (\$10,000) to
    Christian Family Network, Inc. ("Christian Family Network"), former
    licensee of AM station WOLY, in Battle Creek, Michigan, for
    willfully and repeatedly violating Section 301 of the Communications
    Act of 1934, as amended ("Act"),[^1] by engaging in unauthorized
    operations of its station after its license expired. In this
    *Order*, we consider Christian Family Network's arguments that the
    forfeiture amount should be cancelled because the violation was not
    willful and the station's failure to file a timely renewal
    application resulted from its inability to file electronically.

    **II**. **BACKGROUND**

2.  Christian Family Network's license authorizing it to operate station
    WOLY on frequency 1500 kHz expired on October 1, 2004 because
    Christian Family Network failed to file a license renewal
    application, which was due on June 1, 2004. In a letter dated June
    13, 2006, the Media Bureau notified Christian Family Network that
    "...all authority to operate station WOLY(AM), Battle Creek, MI IS
    TERMINATED and the call letters are deleted. Any operation of this
    facility is now unauthorized and must cease immediately."

3.  On July 14, 2006, based on information from an area resident that
    the station continued to operate, agents from the Commission's
    Detroit Office monitored transmissions on 1500 kHz in Battle
    Creek, MI. Using direction finding techniques, the agents determined
    that the source of the transmissions on 1500 kHz was 15074 6 ½ Mile
    Road, Battle Creek, MI 49014, which was the previously authorized
    location for station WOLY's transmitter.[^2]

4.  On August 17, 2006, an agent spoke to the owner and President of
    Christian Family Network, Inc., James Elsman. The agent advised
    Elsman that the station is unlicensed and therefore is not
    authorized to operate. Elsman stated to the agent that he tried to
    file electronically, but was unable to do so. Elsman also reported
    that he spoke to someone at the FCC who advised him that he was
    required to file his license renewal application electronically. The
    agent provided Elsman the telephone number for the FCC's Audio
    Service Division.

5.  On March 2, 2007 and May 22, 2007, an agent from the Commission's
    Detroit Office monitored 1500 kHz in Battle Creek, MI and, using
    direction finding techniques, verified that the station continued to
    operate at 15074 6 ½ Mile Road in Battle Creek. At the time, the
    agent also confirmed with the Media Bureau that Christian Family
    Network had not filed a license renewal application.

6.  On August 16, 2007, the Detroit Field Office issued a Notice of
    Apparent Liability for Forfeiture ("*NAL*") in the amount of
    \$10,000 to Christian Family Network for apparently willfully and
    repeatedly violating Section 301 of the Act by engaging in
    unauthorized operations of its station after its license
    expired.[^3] In its response, Christian Family Network claims that
    it did not willfully violate Section 301 of the Act and that it
    could not file its license renewal application because it did not
    have a computer. It reports that it filed a request for a special
    temporary authorization ("STA") on December 10, 2006, and that,
    since that time, it has assumed that the request would be answered
    by the FCC. Christian Family Network also claims that it does not
    have the ability to pay the proposed forfeiture.

    **III. DISCUSSION**

7.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the 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* ("*Forfeiture Policy Statement"*).[^6] In examining
    Christian Family Network's response, 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.[^7]

8.  Christian Family Network does not dispute the fact that it
    repeatedly operated station WOLY after expiration of its license in
    violation of Section 301, but claims that it did not willfully
    violate Section 301 of the Act.[^8] We disagree. Section 312(f)(1)
    of the Act,[^9] which applies to violations for which forfeitures
    are assessed under Section 503(b) of the Act, provides that
    \"\[t\]he term \'willful\', when used with reference to the
    commission or omission of any act, 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....\"[^10]
    "Willful" does not require a finding that there was an intent to
    engage in a violation.[^11] Here, agents in the Detroit Office found
    that Christian Family Network continued to operate station WOLY even
    after the Media Bureau advised Christian Family Network that the
    call sign for WOLY was deleted and that Christian Family Network no
    longer had authority to operate the station. Christian Family
    Network also was orally warned by an FCC agent during a telephone
    conversation on August 17, 2006 that operation of the station was
    unauthorized. We therefore conclude that Christian Family Network's
    violation of Section 301 was willful because it continued to operate
    its station even after receiving notice from the Media Bureau that
    its license had been cancelled and even after receiving an
    additional warning from an FCC agent.

9.  We do not find compelling Christian Family Network's claim that it
    could not file its license renewal application because electronic
    filing is mandatory and the station did not have a computer. In its
    response to the *NAL*, Christian Family Network claims that it is "a
    poor Christian day-time and cannot afford. . . \[a computer\]."
    Christian Family Network goes on to state, however, that it is "very
    worried and concerned because this is a serious matter involving
    assets worth more than \$1,000,000." Even if we accept Christian
    Family Network's claim that it could not afford to have a computer
    at the station, it had two other options for filing the renewal
    application. First, to file an application electronically does not
    require that the station itself have a computer. Internet access
    exists at many public institutions for a minimal fee. Indeed, when
    the Commission adopted the mandatory filing requirements, it
    explained that, "\[g\]iven the falling costs of computer and modem
    equipment, and the increasing access to the Internet at public
    institutions, such as libraries, at minimal cost, we believe that
    electronic filing will not constitute an undue burden or expense for
    broadcast licensees and permittees generally."[^12] Second,
    Christian Family Network could have requested a waiver of the
    mandatory electronic filing requirement. The Commission recognized
    the possible burdens that the mandatory electronic filing
    requirement may impose on licensees and indicated when it adopted
    the requirements that it would "carefully weigh the needs of such
    licensees in ruling on any waiver request."[^13]

10. Christian Family Network also reports that it filed a request on
    December 10, 2006, seeking a Special Temporary Authorization ("STA")
    to operate the station. The Media Bureau has no record of receiving
    such a request. We nevertheless address this issue as if Christian
    Family Network's request had been received by the Media Bureau. An
    STA is available only to licensees and permittees.[^14] At the time
    that Christian Family Network allegedly filed its STA request, its
    license had been expired for more than two years, so it was neither
    a licensee nor a permittee and therefore was not eligible to receive
    an STA. Even a licensee or permittee, however, is not permitted to
    operate under the conditions requested in an STA until such time
    that the STA is granted by the Commission and, by its own admission,
    Christian Family Network has never received a response to its
    alleged STA request. Christian Family Network also states in its
    response to the *NAL* that it "talked with several \[FCC\] . . .
    staff people" with regard to the STA. Although Christian Family
    Network does not disclose or submit any documentation regarding the
    content of those discussions, we note that the Commission has long
    held that statements by individual Commission staff members are not
    binding on the Commission and the Commission has repeatedly warned
    that parties who rely on staff advice or interpretations do so at
    their own risk.[^15] Thus, even if a staff member advised Christian
    Family Network that the Commission would consider an STA request,
    such advice has no bearing on our findings here.[^16]

11. Christian Family Network reports that it does not have the ability
    to pay the proposed forfeiture. As noted in the *NAL*, the
    Commission does not consider reducing or canceling a forfeiture in
    response to a claim of inability to pay unless such claim is
    supported by: (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.[^17] Despite this explicit
    direction, Christian Family Network has provided no such
    documentation to support its claim that payment of the forfeiture
    will be burdensome. We therefore decline to reduce or cancel the
    proposed forfeiture based on its alleged inability to pay.[^18]

12. We have examined the response to the *NAL* pursuant to the statutory
    factors above, and in conjunction with the Forfeiture Policy
    Statement. As a result of our review, we conclude that Christian
    Family Network willfully and repeatedly violated Section 301 of the
    Act and a reduction or cancellation of the proposed forfeiture
    amount is not warranted.

13. Finally, we note that agents from the Detroit Office have determined
    that Christian Family Network continues to operate its station as of
    July 14, 2008, without a license. Christian Family Network's failure
    to immediately cease operation of the station may result in further
    monetary fines and other more serious sanctions.[^19]

    **IV. ORDERING CLAUSES**

14. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended ("Act"), and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, Christian
    Family Network, Inc. **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of \$10,000 for willfully and repeatedly violating Section
    301 of the Act.[^20]

15. 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.[^21] Payment of the
    forfeiture must be made by check or similar instrument, payable to
    the order of the Federal Communications Commission. The payment must
    include the NAL/Account Number and FRN Number referenced above.
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 979088, St. Louis, MO
    63197-9000. Payment by overnight mail may be sent to U.S. Bank --
    Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
    Louis, MO 63101. Payment by wire transfer may be made to ABA Number
    021030004, receiving bank TREAS/NYC, and account number 27000001.
    For payment by credit card, an FCC Form 159 (Remittance Advice) must
    be submitted.  When completing the FCC Form 159, enter the
    NAL/Account number in block number 23A (call sign/other ID), and
    enter the letters "FORF" in block number 24A (payment type code).
    Requests for full payment under an installment plan should be sent
    to:  Chief Financial Officer \-- Financial Operations, 445 12th
    Street, S.W., Room 1-A625, Washington, D.C.  20554.   Please contact
    the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
    <ARINQUIRIES@fcc.gov> with any questions regarding payment
    procedures. Christian Family Network, Inc. shall also send
    electronic notification on the date said payment is made to
    <NER-Response@fcc.gov>.

16. **IT IS FURTHER ORDERED** that Christian Family Network, Inc.
    **SHALL REPORT**, in writing, within 10 days of the date of this
    *Order*, the date it ceased operating its station. Such report shall
    be submitted to Sharon L. Webber, Regional Counsel, Federal
    Communications Commission, Northeast Region, Enforcement Bureau, One
    Oxford Valley Office Building, Room 404, 2300 East Lincoln Highway,
    Langhorne, PA 19047.

17. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Christian Family Network, Inc. at its address of record.

**FEDERAL COMMUNICATIONS COMMISSION**

> G. Michael Moffitt

Acting Regional Director, Northeast Region

Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: The agents also conducted a station inspection on July 14, 2006,
    and found numerous apparent violations, including inoperable EAS
    equipment and missing public inspection file items. Because we find
    that the station has willfully and repeatedly operated without a
    valid license in violation of Section 301 of the Act, we do not
    address here the apparent violations with regard to the station's
    operations.

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200732360001 (Enf. Bur., Detroit Office, released August 16, 2007).

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^7]: 47 U.S.C. § 503(b)(2)(E).

[^8]: We note that, because we find here that the violation was
    repeated, we do not need to determine whether the violation was
    willful. *See* [Section
    503(b)(1)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&fn=_top&sv=Split&tc=-1&docname=47USCAS503&ordoc=2015550537&findtype=L&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=WestlawLocator)
    of the Act, [47 U.S.C. §
    503(b)(1)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&referencepositiontype=T&referenceposition=SP%3B3fed000053a85&fn=_top&sv=Split&tc=-1&docname=47USCAS503&ordoc=2015550537&findtype=L&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=WestlawLocator)
    (violator liable for forfeiture if violation is willful or
    repeated). We nevertheless address Christian Family Network's claim
    that the violation was not willful.

[^9]: 47 U.S.C. § 312(f)(1).

[^10]: See *Southern California Broadcasting Co.*, Memorandum and Order,
    6 FCC Rcd 4387 (1991).

[^11]: *Id*., citing *MCI Telecommunications Group*, Order and Notice of
    Apparent Liability, 3 FCC Rcd 509, 514 n.22 (1988); *Hale
    Broadcasting Corporation*, Memorandum Opinion and Order, 79 FCC Rcd
    169, 171 (1980).

[^12]: *1998 Biennial Regulatory Review-Streamlining of Mass Media
    Applications, Rules, and Processes*, Report and Order, 13 FCCR
    23056, 23060 (1998).

[^13]: *Id.* at 23061.

[^14]: Section 73.1635(a) of the Commission's Rules provides that an STA
    "is the authority granted to a permittee or licensee to permit the
    operation of a broadcast facility for a limited period at a
    specified variance from the terms of the station authorization or
    requirements of the FCC rules applicable to the particular class of
    station." 47 C.F.R. § 73.1635(a).

[^15]: See e.g., Roamer One, Inc. and Certain 220 MHz Non-Nationwide
    Licensees, Order, 17 FCC Rcd 3287, n.26 (2002), citing
    [*Applications of Hinton Telephone Company,* Memorandum Opinion and
    Order on Reconsideration, *10 FCC Rcd 11625, 11637*(1995)
    and](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.06&referencepositiontype=S&serialnum=1995262781&fn=_top&sv=Split&referenceposition=11637&findtype=Y&tc=-1&ordoc=2002138046&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=WestlawLocator)
    AAT Electronics Corp., 53 RR 2d 1241, 1225-26 (1983), aff\'d sub
    nom., P & R Temmer v. FCC, 743 F.2d 918, 931 (D.C. Cir. 1984).

[^16]: Once Christian Family Network's authorization was cancelled and
    the station's call sign was deleted, Christian Family Network's only
    recourse would have been to file a petition for reconsideration
    under Section 405(a) of the Act, 47 U.S.C. § 405(a), which we note
    does not need to be filed electronically. Christian Family Network
    does not address why it did not file such a petition. We note,
    however, that unless such petition had been filed within thirty (30)
    days of public notice of the cancellation of the station's
    authorization, the Commission could not have considered the petition
    because we have no discretion to waive the filing requirements in
    Section 405(a) of the Act. Thus, the cancellation of Christian
    Family Network's authorization to operate station WOLY and the
    cancellation of its call sign has become a final Commission order
    that is no longer is subject to review.

[^17]: *See NAL* para. 14; *See also Commission's Forfeiture Policy
    Statement and Amendment of Section 1.80 of the Rules to Incorporate
    the Forfeiture Guidelines* (\"*Forfeiture Policy Statement*\"), 12
    FCC Rcd 17087, 17106-07 (1997), *recon.* denied, 15 FCC Rcd 3030
    (1999).

[^18]: Christian Family Network also states in its response to the *NAL*
    that it would need to make any payment of forfeiture in
    installments. Requests for installment plans should be directed to
    the Commission's Chief Financial Officer, as directed in paragraph
    15 below.

[^19]: *See* 47 U.S.C. §§ 401, 501, 503 and 510.

[^20]: 47 U.S.C. §§ 503(b), 301; 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^21]: 47 U.S.C. § 504(a).