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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554


In the Matter of                         )   
                                    )   
Delta Radio, Inc.                        )
Licensee of WOHT(FM), Drew, MS           )   
                                    )   
For a Forfeiture                         )                                      
                                                            
                                 
                  MEMORANDUM OPINION AND ORDER
                       AND FORFEITURE ORDER

       Adopted:  August 20, 1998   Released:  August 24, 1998  

By the Chief, Mass Media Bureau:

                           INTRODUCTION

     1.  On November 6, 1995, the Chief, Mass Media Bureau ("Bureau") issued a Notice of
Apparent Liability ("NAL") to Delta Radio, Inc. ("Delta") pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("the Communications Act"), under authority delegated
to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules.  In the NAL,
the Bureau found that Delta had engaged in an unauthorized transfer of control of the license for
Station WOHT(FM) (formerly and hereafter referred to as Station WKZB(FM)), Drew, Mississippi,
in violation of Section 310(d) of the Communications Act of 1934, as amended, and Section 73.3540
of the Commission's Rules. Delta responded to the NAL on December 13, 1995, claiming that the
forfeiture should be reduced or rescinded. As discussed below, we deny Delta's request for rescission
but grant, in part, its request for reduction of the forfeiture.

                            BACKGROUND

     2.  The unauthorized transfer of control took place from July 28, 1993, when Delta entered
into a "Bill of Sale and Management Contract" with Eddie Bond ("Bond") until June 29, 1994, when
the Commission granted an application for assignment of the license from Bond to Delta, subject to
any possible enforcement action. The Bureau issued a NAL against Delta for $7,500. The details of
the unauthorized transfer were set out in the NAL and will not be repeated here. 

     3.  In its December 13, 1995, response to the NAL, Delta claims that there are a number of
reasons why the forfeiture should be reduced or rescinded.  Delta argues that the Bureau should have
considered that its president, Larry Fuss, made several attempts to ensure that the management
contract entered into with Bond complied with Commission regulations, but Bond would not
cooperate with these efforts.  In addition, Delta claims that the Bureau should not have relied upon
Delta's refusal to comply with Bond's demand to cease broadcasting as a basis for finding an
unauthorized transfer of control. Delta maintains that Bond ordered Delta to cease operations in order
to force Delta to pay him for the station in advance of Commission approval of the application for
assignment of the license.  Delta argues that under the circumstances, it was appropriate to refuse to
comply with Bond's request to cease broadcasting, especially since continued operation of the station
was in the public interest as it ensured both continued local service and the employment of two
minority employees. In support of its position, Delta cites Bennett Gilbert Gaines. Delta maintains
that in that case, even though the local marketing agreement ("LMA") operator refused the licensee's
representative's request to vacate the premises and to cease operation of the station, the Commission
absolved the LMA operator from liability and approved his application for acquisition of the station.

     4.  Delta also argues that the Commission should have considered the fact that Delta applied
for FCC consent to assignment of the station within a few days after it began operating the station. 
Delta further contends that its cooperation with the Commission warrants forfeiture rescission or
reduction.  Moreover, Delta asserts that the $7,500 forfeiture assessed against it for one violation is
unfair when compared to the $15,000 forfeiture assessed against Bond for three unauthorized
transfers of control. Delta maintains that the forfeiture assessed against Bond represents a $5,000
forfeiture for each transgression and argues that it should not have been assessed a $7,500 forfeiture
for one alleged transgression.

     5.  In addition to its substantive arguments, Delta claims that the forfeiture should be reduced
or rescinded because of its history of compliance with the Communications Act and the Commission's
Rules and because of its inability to pay.  In support of its claim of inability to pay, Delta states that
it lost its tower during a 1994 ice storm and was not able to return to full power for over two years. 
According to Delta, the station could not attract many advertisers during that time, which caused the
station's revenues to decrease.  Delta claims that the station's expenses exceed its revenues and that
payment of the forfeiture would create a financial hardship for the station and jeopardize the ability
of WKZB, the only FM station in Drew, Mississippi, to continue operating.  

     6.  Delta's response to the NAL did not contain sufficient information to support its claim of
inability to pay.  Accordingly, on May 15, 1997, the Bureau sent Delta a letter requesting further
information.  In response, Delta sent the Bureau three letters, dated June 13, 1997, June 16, 1997,
and July 16, 1997, detailing its financial situation. Delta claims that it is operating at a loss and
provides, in support, a copy of its 1996 income tax return.  In addition, it asserts that the financial
situation of station WKZB is even more uncertain than reflected in that return.  Delta also submitted
a statement from Mr. Fuss in which he repeated his earlier statements about the loss of the station's
transmission tower. He states that the tower loss was not covered by insurance and that Delta lacked
the funds necessary to pay for a new tower.  As a result, he states that the station went off the air and
then was forced to operate at low power for over two years.  He asserts that while WKZB began
operating from a new tower in October 1996, the station never recovered financially from the effects
of operating at low power for such an extended length of time and is supported financially by Delta's
other stations. Moreover, Mr. Fuss maintains that the economic condition of WKZB's service area
is declining.

                            DISCUSSION

     7.  As we stated in the NAL, there is no exact formula for determining whether a transfer of
control has taken place. The Commission has traditionally looked beyond the legal title to ascertain
whether a new entity or individual has obtained the right to determine the basic operating policies of
the station. The key factor in determining control is ultimate responsibility for essential station
matters, such as personnel, programming, and finances.  In the NAL, the Bureau stated that "[t]he
responses of both you and Bond to the Commission's letters of inquiry explicitly confirmed that
control of Station WKZB was transferred to you prior to Commission approval."  Nothing in Delta's
response to the NAL has persuaded us otherwise. 

     8.  Delta claims that its forfeiture should be rescinded or reduced because it attempted to enter
into a valid local marketing agreement with Bond, making good faith efforts to comply with
Commission rules and regulations.  Moreover, it argues that the Commission should recognize its
efforts to serve the public interest by keeping the station on the air. We did, however, note such
efforts in the NAL and assessed the forfeiture based on the totality of the record before us, including
such factors. We likewise reject Delta's argument that the forfeiture should be reduced or rescinded
because it was justified in refusing Bond's request to cease broadcasting.  Delta was not the licensee
of the station and therefore had no authority to made a decision about its continued operation. The
Bennett Gilbert Gaines case, supra, cited by Delta as support for its contention that it acted properly
in refusing Bond's request, is not on point. That case involved a complex set of facts pertaining to a
station that was in bankruptcy.  In Bennett Gilbert Gaines, the station was licensed to a receiver who
in turn entered into an LMA with an individual to operate the station.  The LMA operator refused
to comply with an order by a representative of the receiver, who was acting without instruction from
the receiver, to vacate the station's premises and to cease broadcasting.   The Administrative Law
Judge concluded, and the Review Board concurred, that the receiver had ultimate control over the
station's programming, personnel, and finances, and that the incident involving the attempt to evict
the LMA operator did not have a bearing on the receiver's control of the station. In contrast, the
record in this case clearly indicates that even apart from the incident in question, Delta, and not Bond,
was in control of the station's programming, personnel, and finances.

     9.  Further, we reject Delta's argument that the forfeiture should be reduced or rescinded
because it filed an application for assignment of the station soon after entering into the LMA. The
mere filing of an assignment application does not give the assignee the right to assume control of the
station, nor is it a basis for reduction of a forfeiture assessed for an unauthorized transfer of control.
The Commission has consistently issued forfeitures for unauthorized transfers of control from the date
control was first transferred until the date that the assignment application was granted. See Salem
Broadcasting Inc., 6 FCC Rcd 4172, 4173 (MMB 1991); First Broadcasting Corp., 3 FCC Rcd 2758
(1988).

     10.  We also find without merit Delta's argument that the forfeiture should be reduced because
it cooperated with the Commission and "candidly disclosed" all the relevant information.  The
Commission expects its licensees to cooperate and to be truthful in its dealings with us.  Thus, such
behavior should not result in any special treatment to the licensee.

     11.  Finally, we reject Delta's claims that the assessment of a $7,500 forfeiture against it is
unfair in light of the amount of the forfeiture assessed against Bond.  Delta asserts that Bond was
fined $15,000 for three unauthorized transfers of control, which it characterizes as $5,000 for each
violation.  In determining a forfeiture amount, the Bureau compares the actions of the party in
question with the actions of other licensees involved in similar cases and also considers the factors
set out in Section 503(b)(2) of the Act.  In assessing a forfeiture against Bond, the Bureau did not
assess a separate forfeiture amount for each violation, nor can its actions be dissected in such a
manner.  Rather the Bureau concluded that as a whole, Bond's actions warranted a $15,000
forfeiture.  Similarly, the Bureau concluded that the facts of this case and relevant case law
supported a $7,500 forfeiture against Delta. 

     12.  Although we reject Delta's substantive arguments for reduction or rescission of the
forfeiture, we find that reduction of the forfeiture is warranted based on its showing of inability to pay
and its prior history of compliance with the Communications Act and Commission rules and
regulations.  Delta has demonstrated that the company is operating at a loss and that Station WKZB
is in an even more difficult financial position. According to the statement submitted by Larry Fuss,
WKZB lost its tower during an ice storm. The station had neither insurance nor its own funds to pay
for a new tower. As a result, the station went off the air and then operated at low power for over two
years.  

     13.  In evaluating a claim of inability to pay, the Commission has stated that operating at a
loss is one factor to be considered, although it is not necessarily sufficient in and of itself to support
such a claim.  PJB Communications of Virginia, 7 FCC Rcd 2088 (1992).  In this case, Delta has
shown that it is operating at a loss and also has provided the Commission with other evidence of
financial difficulty. Accordingly, we find its showing sufficient to warrant a reduction of the forfeiture
to $5,000.

     14.  We also accept Delta's argument that reduction of the forfeiture is warranted because it
has no prior history of violations of the Communications Act or the Commission's Rules.
Accordingly, we reduce the forfeiture to $4,000.
    
     15.  Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act
of 1934, as amended, 47 U.S.C. Section 503(b), that Delta Radio, Inc. FORFEIT to the United
States the sum of four thousand dollars ($4,000) for willful and repeated violations of Section 310(d)
of the Communications Act, as amended, and Section 73.3540 of the Commission's Rules, 47 C.F.R.
Section 73.3540. Payment of the forfeiture may be made by mailing to the Commission a check or
similar instrument payable to the Federal Communications Commission.





     16.  IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail --
Return Receipt Requested, copies of this Memorandum Opinion and Order and Forfeiture Order to
Delta Radio, Inc.


                         FEDERAL COMMUNICATIONS COMMISSION

               

                         Roy Stewart
                         Chief, Mass Media Bureau