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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  Xx-  Mto the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules.xٯ yO-ԍ #C\  P6QP#Delta Radio Inc, 10 FCC Rcd 12538 (MMB 1995)("NAL"). In the   NAL, the Bureau found that Delta had engaged in an unauthorized transfer of control of the  XJ-  Mlicense for Station WOHT(FM) (formerly and hereafter referred to as Station WKZB(FM))JXٯ yOS-  Jԍ #C\  P6QP#Effective March 6, 1995, the call letters for Station WKZB(FM) were changed to WOHT(FM). However, for ease of reference, we will henceforth refer to the station by its previous call letters.,   !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 Delta responded to the NAL on     December 13, 1995, claiming that the forfeiture should be reduced or rescinded.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   Lbelow, we deny Delta's request for rescission but grant, in part, its request for reduction of the forfeiture.  X- ",))ZZ"  X--@BACKGROUNDă  #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  Xv-  ?$7,500 v yO-  ԍ #C\  P6QP#The Bureau also issued a NAL against Bond, who had engaged in three unauthorized transfers of control of  yO-  JWKZB. Eddie Bond, 10 FCC Rcd 12535 (MMB 1995) (Bond NAL), Eddie Bond, 12 FCC Rcd 20202 (MMB 1997),  yO -  Jrecon., DA 981280 (MMB, released June 29, 1998)(forfeiture reduced from $15,000 to $5,000 because of showing of inability to pay), review pending.. The details of the unauthorized transfer were set out in the NAL and will not be repeated here.  X1- 3. %S   %S In its December 13, 1995, response to the NAL, Delta claims that there are a number   zof reasons why the forfeiture should be reduced or rescinded.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   ymanagement contract entered into with Bond complied with Commission regulations, but Bond   Zwould 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   iof the application for assignment of the license. Delta argues that under the circumstances, it was   zappropriate to refuse to comply with Bond's request to cease broadcasting, especially since   jcontinued 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  X-  Bennett Gilbert Gaines.< yO~-  ԍ #C\  P6QP#Initial Decision, 7 FCC Rcd 1976 (1992), aff'd., 8 FCC Rcd 1405 (Rev. Bd. 1993), recon. den., 8 FCC Rcd  yOF-3986 (Rev.Bd. 1993), remanded on other grounds, 9 FCC Rcd 533 (1994).< 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   kunauthorized 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",-(-(ZZ"   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  X-  <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,  X_-to continue operating.  6. Delta's response to the NAL did not contain sufficient information to support its claim   Mof inability to pay. Accordingly, on May 15, 1997, the Bureau sent Delta a letter requesting  X -  yfurther information.X  yO| -  iԍ #C\  P6QP#See Pinnacle Communications Inc., 11 FCC Rcd 15496 (1996); LeSea Broadcasting Corporation, 12 FCC  yOD -  .Rcd 15977 (MMB 1997); PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); San Luis Obispo  yO -Limited Partnership, 11 FCC Rcd 9616 (1996) which were cited by the Bureau in its May 15, 1997, letter.  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   ya 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   zinsurance 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   Myears. 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.  X-GDISCUSSIONă  X-  X- ?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  XN-  for essential station matters, such as personnel, programming, and finances.kN yO -  ԍ #C\  P6QP#See WHDH, Inc., 17 FCC 2d 856 (1969), aff'd sub nom., Greater Boston Television Corp. v. FCC, 444 F.  yO!-2d 841 (D.C. Cir. 1970), cert. den., 403 U.S. 923 (1971); Salem Broadcasting, Inc., 6 FCC Rcd 4172 (MMB 1991). k 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  X -approval."I @ yO%-ԍ NAL, 10 FCC Rcd at 12538.I Nothing in Delta's response to the NAL has persuaded us otherwise. ",-(-(ZZ<"Ԍ {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   LCommission 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  X-  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   Kor 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  XH-  continued operation. The Bennett Gilbert Gaines case, supra, cited by Delta as support for its  X1-  contention that it acted properly in refusing Bond's request, is not on point. That case involved  X -  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   Lfinances, 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.  X4-  X- N9. 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.   zThe 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   itransfer of control. The Commission has consistently issued forfeitures for unauthorized transfers   Zof control from the date control was first transferred until the date that the assignment application  X-  was granted. See Salem Broadcasting Inc., 6 FCC Rcd 4172, 4173 (MMB 1991); First  X|-Broadcasting Corp., 3 FCC Rcd 2758 (1988).  | 10. We also find without merit Delta's argument that the forfeiture should be reduced   Kbecause it cooperated with the Commission and "candidly disclosed" all the relevant information.  X -  The Commission expects its licensees to cooperate and to be truthful in its dealings with us.  yO-ԍ #C\  P6QP#Southern California Broadcasting Company, 7 FCC Rcd 3454, 3455 (1992). 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 $5,000   for each violation. In determining a forfeiture amount, the Bureau compares the actions of the   party in question with the actions of other licensees involved in similar cases and also considers   the factors set out in Section 503(b)(2) of the Act. In assessing a forfeiture against Bond, the"h$X,-(-(ZZF#"   zBureau 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  X-  .warranted a $15,000 forfeiture.  yOK-  ԍ #C\  P6QP#Bond NAL, 10 FCC Rcd at 12537. The Bureau made a similar analysis in determining the appropriate  yO-forfeiture for Delta. NAL, 10 FCC Rcd at 12539. Similarly, the Bureau concluded that the facts of this case and relevant case law supported a $7,500 forfeiture against Delta.  0 12. Although we reject Delta's substantive arguments for reduction or rescission of the   yforfeiture, we find that reduction of the forfeiture is warranted based on its showing of inability   Lto 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   LLarry Fuss, WKZB lost its tower during an ice storm. The station had neither insurance nor its   jown 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  X-  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  X-  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. "  ,-(-(ZZ"  X-  16.` ` IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail   kԩ Return Receipt Requested, copies of this Memorandum Opinion and Order and Forfeiture Order to Delta Radio, Inc. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  ` `  hh,Roy Stewart ` `  hh,Chief, Mass Media Bureau