**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Application of             | *  | Facility I.D. No. 15796      |
|                                  | *) |                              |
| **John F. Warmath**              | ** | NAL/Acct. No.                |
|                                  |    | MB-200741410011              |
| For Renewal of License for       | *  |                              |
|                                  | *) | FRN: 0001770783              |
| Station WIRJ(AM)                 | ** |                              |
|                                  |    | File No. BR-20040802ABZ      |
| Humboldt, Tennessee              | *  |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: January 26, 2007 Released: January 30, 2007**

By the Chief, Media Bureau:

**I. INTRODUCTION**

1.  The Commission has before it the captioned application of John F.
    Warmath (the "Licensee"), for renewal of his license for Station
    WIRJ(AM), Humboldt, Tennessee (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,[^3] by failing to timely file a license
    renewal application for the Station, and Section 301 of the Act,[^4]
    by engaging in unauthorized operation of the Station after his
    authorization had expired. 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 three thousand
    five hundred dollars (\$3,500), and we grant the captioned WIRJ(AM)
    renewal application.

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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."[^5] An application for
renewal of WIRJ(AM)'s license should have been filed by April 1, 2004,
four months prior to the Station's August 1, 2004, license expiration
date,[^6] but was not. In fact, the Licensee did not file the renewal
application until August 2, 2004, one day after the Station's license
had expired.

**III. DISCUSSION**

3\. *Proposed Forfeiture.* In this case, the Licensee has admitted that
he failed to timely file a license renewal application for WIRJ(AM), as
required by Section 73.3539(a) of the Rules. Moreover, he does not
dispute that he continued Station operation after his license had
expired on August 1, 2004.

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.[^7] 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.[^8] 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,[^9] and the Commission has so
interpreted the term in the Section 503(b) context.[^10] Section
312(f)(2) of the Act provides that "\[t\]he term 'repeated,' when used
with reference to the commission or omission of any act, means the
commission or omission of such act more than once or, if such commission
or omission is continuous, for more than one day."[^11]

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.[^12] The guidelines
    also specify a base forfeiture amount of \$10,000 for construction
    and/or operation without an instrument of authorization for the
    service.[^13] 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."[^14]

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2.  In this case, the Licensee failed to timely file the WIRJ(AM)
    renewal application, filing the application one day after the
    station's license had expired and continuing Station operations.
    Nevertheless, because he had previously been licensed to operate
    Station WIRJ(AM), the latter transgression is not comparable to
    \"pirate\" wireless operations, which typically have been subject to
    forfeitures of approximately \$10,000. 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 propose a
    forfeiture for the full \$3,000 base amount for the failure to
    timely file the renewal application, and, in light of the duration
    of the Licensee's period of unauthorized operation, reduce the base
    amount for that violation and propose a forfeiture of \$500 for the
    unauthorized operation. Thus, we propose a forfeiture in the total
    amount of \$3,500.

3.  *License Renewal Application.* In evaluating an application for
    license renewal, the Commission's decision is governed by Section
    309(k) of the Act.[^15] 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.[^16] 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."[^17]

4.  We find that the Licensee's apparent violations of Section 73.3539
    of the Rules and Section 301 of the Act do not constitute "serious
    violations" warranting designation for evidentiary hearing.
    Moreover, we find no evidence of violations that, when considered
    together, evidence a pattern of abuse.[^18] Further, we find that
    Station WIRJ(AM) served the public interest, convenience, and
    necessity during the subject license term. We will therefore grant
    the license renewal application below.

**IV. ORDERING CLAUSES**

5.  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 F. Warmath is hereby NOTIFIED of his
    APPARENT LIABILITY FOR FORFEITURE in the amount of three thousand
    five hundred dollars (\$3,500) for his apparent willful violations
    of Section 73.3539 of the Commission's Rules and Section 301 of the
    Communications Act of 1934, as amended.

6.  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 F. Warmath SHALL PAY the full amount of the proposed
    forfeiture or SHALL FILE a written statement seeking reduction or
    cancellation of the proposed forfeiture.

7.  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.

8.  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.

9.  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.

10. 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.[^19]

11. IT IS FURTHER ORDERED, pursuant to Section 309(k) of the
    Communications Act of 1934, as amended, that the license renewal
    application of John F. Warmath for Station WIRJ(AM), Humboldt,
    Tennessee (File No. BR-20040802ABZ) IS GRANTED.

12. IT IS FURTHER ORDERED that a copy of this *NAL* shall be sent, by
    First Class and Certified Mail, Return Receipt Requested, to John F.
    Warmath, P.O. Box 740, 2606 Eastend Drive, Humboldt, Tennessee
    38343-0740.

FEDERAL COMMUNICATIONS COMMISSION

Monica Shah Desai

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]: *See* 47 U.S.C. § 301.

[^5]: 47 C.F.R. § 73.3539(a).

[^6]: *See* 47 C.F.R. §§ 73.1020, 73.3539(a).

[^7]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. 1.80(a)(1).

[^8]: 47 U.S.C. § 312(f)(1).

[^9]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^10]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^11]: 47 U.S.C. § 312(f)(2).

[^12]: *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.

[^13]: A broadcast station requires an authorization from the Commission
    to operate. *See* 47 U.S.C. § 301.

[^14]: 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).

[^15]: 47 U.S.C. § 309(k).

[^16]: 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). S*ee Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^17]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^18]: 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.\"
    *See Heart of the Black Hills Stations*, Decision, 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*, Hearing Designation Order, 6 FCC Rcd 4622
    (1991), *Calvary Educational Broadcasting Network, Inc*., Hearing
    Designation Order, 7 FCC Rcd 4037 (1992).

[^19]: *See* 47 C.F.R. § 1.1914.