*Pages 1--2 from Microsoft Word - 40849* Federal Communications Commission DA 04- 2441 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Casey Network, LLC Licensee of AM Broadcast Station WRFS Auburn, Alabama ) ) ) ) ) File No. EB- 03- AT- 084 NAL/ ACCT No. 200332480023 FRN: 0005- 0273- 13 FORFEITURE ORDER Adopted: July 30, 2004 Released: August 4, 2004 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In a May 6, 2003 Notice of Apparent Liability for Forfeiture (“ NAL”), 1 the District Director- Atlanta Office proposed a monetary forfeiture of seven thousand dollars ($ 7,000) for Casey Network, LLC (“ Casey”) based on an apparent willful and repeated violation of Section 73.49 of the Commission’s Rules (“ Rules”). 2 That section requires that antenna towers with radio frequency potential at the base must be enclosed within an effective locked fence. On June 27, 2003, Casey filed a Response to the NAL. 3 In this Forfeiture Order, we affirm the monetary forfeiture in the amount of $7,000. II. DISCUSSION 2. Casey does not contest the subject violation, but alleges that it promptly (“ within three days” of the Commission’s agent’s inspection) and in good faith constructed a new fence. 4 We find that no mitigation is warranted on the basis of the alleged correction of the violation. As the Commission stated in Seawest Yacht Brokers, “corrective action taken to come into compliance with Commission rules or policy is expected, and does not nullify or mitigate any prior forfeitures or violations.” 5 3. Casey claims that the fine would place a “great financial strain on WRFS.” As evidence of an inability to pay the forfeiture amount, Casey submits that its stand- alone AM station – whose competition comprises three FM stations – is located in a shrinking Alabama town whose only industry has mostly shifted to Mexico. Casey avers that this “severe economic depression” has resulted in the 1 Notice of Apparent Liability for Forfeiture, NAL/ Acct. No. 200332480023 (Enf. Bur., Atlanta Office, rel. Jan. 29, 2003). 2 47 C. F. R. § 73.49. 3 Letter from Jimmy Jarrell, President, Casey Radio Network, to Federal Communications Commission (June 25, 2003) (“ Response”). 4 Response at 1. 5 See Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), see also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629 (2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966). 1 Federal Communications Commission DA 04- 2441 2 station operating in the red, with billings of less than $25,000 per year over the last four years. Because Casey has presented financial information only with respect to this station and not his company overall, 6 and has not provided any supporting documentation, we are not in a position to make a downward adjustment based on inability to pay. 7 III. ORDERING CLAUSES 4. Accordingly, IT IS ORDERED THAT, pursuant to Section 503( b) of the Act and Sections 0.111, 0.311 and 1.80( f)( 4) of the Rules, 8 Casey Network, LLC IS LIABLE FOR A MONETARY FORFEITURE in the amount of $7, 000 for willfully and repeatedly violating Section 73.49 of the Rules. 5. Payment of the forfeiture shall be made in the manner provided for in Section 1. 80 of the Rules 9 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. 10 Payment shall be made by mailing a check or similar instrument, payable to the order of the “Federal Communications Commission,” to the Federal Communications Commission, P. O. Box 73482, Chicago, Illinois 60673- 7482. The payment must include the FCC Registration Number (FRN) and the NAL/ Acct. No. referenced in the caption. Requests for full payment under an installment plan should be sent to: Chief, Revenue and Receivables Operations Group, 445 12 th Street, S. W., Washington, D. C. 20554. 11 6. IT IS FURTHER ORDERED THAT this Order shall be sent by first class mail and certified mail, return receipt requested, to Casey Network, LLC, 908 Opelika Road, Auburn, Alabama, 36830. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau 6 See, e. g., KASA Radio Hogar, Inc., 17 FCC Rcd 6256, 6258- 59 (2002). 7 As indicated in the NAL, the Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three- year period; (2) financial statements prepared according to generally accepted accounting; or (3) some other reliable and objective documentation that accurately reflects the petitioner’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. 8 47 C. F. R. §§ 0.111, 0.311, 1. 80( f)( 4). 9 47 C. F. R. §1. 80. 10 47 U. S. C. § 504( a). 11 47 U. S. C. § 1.1914. 2