**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               |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## MEMORANDUM OPINION AND ORDER {#memorandum-opinion-and-order .unnumbered}

**Adopted:** December 29, 2008 **Released:** December 31, 2008

By the Deputy Chief, Enforcement Bureau:

# INTRODUCTION

1.  In this *Memorandum Opinion and Order,* issued pursuant to Section
    405 of the Communications Act of 1934, as amended ("Act"),[^1] and
    Section 1.106 of the Commission's rules,[^2] we grant in part and
    deny in part a Petition for Reconsideration ("*Petition*") filed on
    July 22, 2008, by Christian Family Network, Inc. ("Christian Family
    Network"), former licensee of AM station WOLY, in Battle Creek,
    Michigan.[^3] Christian Family Network seeks reconsideration of a
    *Forfeiture Order*[^4] issued by the Northeast Region ("Region") of
    the Enforcement Bureau, imposing a ten thousand dollar (\$10,000)
    monetary forfeiture for willful and repeated violation of Section
    301 of the Communications Act of 1934, as amended ("Act").[^5] The
    noted violation concerned Christian Family Network's continued
    operation of its station after expiration of its license. For the
    reasons discussed below, we deny the *Petition* with regard to the
    Region's finding that Christian Family Network willfully and
    repeatedly violated Section 301 of the Act and we grant the
    *Petition* with regard to Christian Family Network's inability to
    pay and reduce the forfeiture to five thousand dollars (\$5,000).

# BACKGROUND

2.  Christian Family Network's license authorizing it to operate station
    WOLY on frequency 1500 kHz expired on October 1, 2004. Christian
    Family Network never filed a license renewal application, which was
    due June 1, 2004, nor did it file a request for Special Temporary
    Authority ("STA") either to operate its station after October 1,
    2004, or to remain silent. As a result, 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.

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's license was cancelled for failure to file
    a license renewal application and that the station therefore is no
    longer authorized to operate. Elsman stated that he tried to file
    his license renewal application electronically, but was unable to do
    so.

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.

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.[^6] In its response, Christian Family Network claimed 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 reported that it filed a request for a special
    temporary authorization ("STA") on December 10, 2006, and that,
    since that time, it had assumed that the request would be answered
    by the FCC. Christian Family Network also claimed that it did not
    have the ability to pay the proposed forfeiture.

7.  In the *Forfeiture Order*, issued July 17, 2008, the Region
    considered Christian Family Network's response to the *NAL* and
    determined that cancellation or reduction of the forfeiture was not
    warranted. Specifically, the Region addressed Christian Family
    Network's claims that its violation was not willful, that it could
    not file its license renewal application because it did not have a
    computer, that it filed a request for Special Temporary
    Authorization ("STA") on which the FCC never acted, and that it
    cannot afford to pay the forfeiture. The Region found that Christian
    Family Network's violation was willful because Christian Family
    Network continued to operate its station after the Media Bureau
    cancelled its license and after FCC agents warned that continued
    operation of the station was unauthorized. The Region also rejected
    Christian Family Network's claim that it could not comply with the
    mandatory electronic filing requirement for its license renewal
    application because it did not have a computer. The Region explained
    that Christian Family Network could have used a computer at a public
    institution or it could have requested a waiver of the electronic
    filing requirement. With regard to the alleged request for an STA,
    the Region found that there was no record of Christian Family
    Network having filed such a request, but the Region concluded that,
    even if Christian Family Network had filed the request, an STA is
    available only to permittees and licensees and Christian Family
    Network's alleged STA request was filed on December 10, 2006, more
    than two years after its license had expired. The Region also denied
    Christian Family Network's request for reduction or cancellation of
    the forfeiture based on its inability to pay because Christian
    Family Network did not submit any supporting documentation.

# DISCUSSION

8.  Reconsideration is appropriate only where the petitioner either
    demonstrates a material error or omission in the underlying order or
    raises additional facts not known or not existing until after the
    petitioner's last opportunity to present such matters.[^7] A
    petition for reconsideration that reiterates arguments that were
    previously considered and rejected will be denied.[^8] Christian
    Family Network has raised no new facts or arguments regarding the
    Region's finding in the *Forfeiture Order* that Christian Family
    Network willfully and repeatedly violated Section 301 of the Act and
    therefore we deny the *Petition* with regard to the violation of
    Section 301 of the Act. We take the opportunity below, however, to
    reiterate certain findings in the *Forfeiture Order* regarding the
    Section 301 violation. We also address below Christian Family
    Network's claim that it cannot pay the forfeiture amount.

9.  At issue in this proceeding is the Region's finding that Christian
    Family Network willfully and repeatedly violated Section 301 of the
    Act by operating a broadcast station long after the Media Bureau had
    canceled the license and deleted the call sign for station WOLY.
    Contrary to Christian Family Network's claims, this proceeding is
    not about the alleged unconstitutionality of the Commission's
    mandatory electronic filing requirements established for license
    renewal applications, requirements with which Christian Family
    Network claims it was not able to comply and which resulted in the
    cancellation of its license. As the Region explained in the
    *Forfeiture Order*, to the extent Christian Family Network believed
    that cancellation of its license for failure to file a license
    renewal application was in error, Christian Family Network's legal
    recourse was to file a petition for reconsideration under Section
    405(a) of the Act,[^9] which the Region noted does not need to be
    filed electronically.[^10] Christian Family Network has never
    addressed why it did not file such a petition.[^11] Christian Family
    Network continued to operate its station after receiving warnings
    from FCC agents that such operation was illegal and could subject it
    to further enforcement action. 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 subject to review. Christian Family Network's continued
    operation of station WOLY therefore violated Section 301 of the Act.

10. Christian Family Network claims that it cannot afford to pay the
    \$10,000 forfeiture. With regard to an individual's or entity's
    inability to pay, the Commission has determined that, in general,
    gross revenues are the best indicator of an ability to pay a
    forfeiture.[^12] After examining the financial documentation
    submitted by Christian Family Network, we find that a reduction in
    the forfeiture to \$5,000 is warranted based on Christian Family
    Network's demonstrated inability to pay the full forfeiture amount
    assessed in the *Forfeiture Order*.

# ORDERING CLAUSES

11. Accordingly, **IT IS ORDERED** that, pursuant to Section 405 of the
    Communications Act of 1934, as amended,[^13] and Section 1.106 of
    the Commission's Rules,[^14] Christian Family Network's Petition for
    Reconsideration **IS DENIED IN PART** and **GRANTED IN PART** and
    the forfeiture is reduced to five thousand dollars (\$5,000).

12. 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.[^15] 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 shall also send electronic notification on
    the date said payment is made to NER-Response@fcc.gov.

13. **IT IS FURTHER ORDERED** that this Order shall be sent by regular
    mail and by certified mail, return receipt requested, to Christian
    Family Network at its address of record.

**FEDERAL COMMUNICATIONS COMMISSION**

George R. Dillon

Deputy Bureau Chief

Enforcement Bureau

[^1]: 47 U.S.C. § 405.

[^2]: 47 C.F.R. § 1.106.

[^3]: Although Christian Family Network captioned its pleading as a
    "Response to Forfeiture Order," we treat it as a petition for
    reconsideration ("*Petition*") pursuant to Section 1.106 of the
    Commission's Rules, 47.C.F.R. § 1.106.

[^4]: *Christian Family Network, Inc.*, Forfeiture Order*,* 23 FCC Rcd
    10898 (EB 2008) ("*Forfeiture Order*").

[^5]: 47 U.S.C. § 301.

[^6]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200732360001 (Enf. Bur., Detroit Office, released August 16, 2007).

[^7]: *See* 47 C.F.R. § 1.106(c); *EZ Sacramento, Inc.,* 15 FCC Rcd
    18257 (EB 2000), *citing WWIZ, Inc.,* 37 FCC 685, 686 (1964), *aff'd
    sub. nom. Lorain Journal Co. v. FCC,* 351 F.2d 824 (D.C. Cir. 1965),
    *cert. denied,* 383 U.S. 967 (1966).

[^8]: *EZ Sacramento, Inc.,* 15 FCC Rcd at 18257.

[^9]: 47 U.S.C. § 405(a).

[^10]: *See Forfeiture Order* at n.16.

[^11]: For the first time in this proceeding, Christian Family Network
    submits a letter, dated September 27, 2004, which it allegedly sent
    to the Commission and which Christian Family Network now claims was
    a petition to waive the mandatory electronic filing requirements.
    Even if Christian Family Network in fact filed the letter and even
    if it could be considered a waiver request, the proper forum for
    making such a claim would have been in a proceeding reconsidering
    the Media Bureau's cancellation of the license for station WOLY.

[^12]: *See PJB Communications of Virginia, Inc*., 7 FCC Rcd 2088, 2089
    (1992) (forfeiture not deemed excessive where it represented
    approximately 2.02 percent of the violator's gross revenues); *Local
    Long Distance, Inc.,* 16 FCC Rcd 24385 (2000) (forfeiture not deemed
    excessive where it represented approximately 7.9 percent of the
    violator's gross revenues); *Hoosier Broadcasting Corporation,* 15
    FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    revenues). We also note that, although we are not required under
    Section 1.106(c) to consider information not previously submitted to
    the Region, we find that it is in the public interest to consider
    the financial documentation submitted by Christian Family Network in
    support of its inability to pay claim. *See* 47 C.F.R. §
    1.106(c)(2).

[^13]: 47 U.S.C. § 405.

[^14]: 47 C.F.R. § 1.106.

[^15]: 47 U.S.C. § 504(a).