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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-AT-239
)
Farnell O'Quinn ) NAL/Acct. No. 200232480012
Licensee of Radio Stations )
WUFF(AM) ) FRN 0004-9860-22
and WUFF- FM )
Eastman, Georgia
MEMORANDUM OPINION AND ORDER
Adopted: September 1, 2004 Released: September 3,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
deny a petition for reconsideration filed by Mr. Farnell O'Quinn,
licensee of radio stations WUFF (AM) and WUFF-FM (``the O'Quinn
stations''), Eastman, Georgia, and owner of those stations'
antenna structure (antenna registration number 1019521); and we
affirm the Forfeiture Order1 issued August 11, 2003, in the
amount of three thousand dollars ($3,000) for willful violation
of Section 73.1350(a) of the Commission's Rules (``Rules'').2
The noted violation involves Mr. O'Quinn's failure to operate the
O'Quinn stations in accordance with the terms of their station
authorizations.
II. BACKGROUND
2. On June 11, 2002, an agent from the Commission's
Atlanta, Georgia, Field Office (``Atlanta Office'') inspected the
O'Quinn stations' transmitter site and antenna structure near
Eastman, Georgia. The agent determined through the Global
Positioning System (``GPS'') that the O'Quinn stations' antenna
structure was located at 32º 13' 18"N Latitude, 083º 13' 04"W
Longitude. The O'Quinn stations' licensed geographical
coordinates were 32º 13' 35"N Latitude, 083º 13' 10"W Longitude.
This placed the actual location of the O'Quinn stations' antenna
structure more than 1/3 of a mile South/Southeast of the
authorized location.3
3. On July 8, 2002, the Atlanta Office issued an NAL4 in
the amount of $4,000 to Mr. O'Quinn for failure to operate in
accordance with the terms of the O'Quinn stations'
authorizations. Mr. O'Quinn requested cancellation of the
forfeiture in his response to the NAL. In the Forfeiture Order,
we imposed a forfeiture of $3,000 on Mr. O'Quinn for willful
violation of Section 73.1350(a) of the Rules. We reduced the
proposed forfeiture amount because of Mr. O'Quinn's history of
overall compliance. In his petition for reconsideration, Mr.
Quinn again requests cancellation of the forfeiture. Mr. O'Quinn
objects to being ``termed a violator'' and argues that the
forfeiture is an insult to his forty (40) year record of running
a top-notch small market station in a town of 6,000. He also
argues that the Commission renewed his license without informing
him that the O'Quinn stations' coordinates were incorrect; that
the Commission never told him ``about changing out the analog
readings''; and that the coordinates he received from his
engineers were ``correct at the time.'' Additionally Mr. O'Quinn
argues that he did not willfully violate Section 73.1350(a) of
the Rules and that payment of the forfeiture would be a financial
hardship. Finally, Mr. O'Quinn states that the FCC agent said
that the District Director of the Atlanta Office was going to
recommend against a monetary forfeiture.
III. DISCUSSION
4. Mr. O'Quinn objects to being ``termed a violator.''
However, it is undisputed the O'Quinn stations' transmitter site
was located at about 1/3 of a mile from their authorized location
and that their operation from that site was not in accordance
with the terms of the stations' authorization. We, therefore,
affirm the conclusion that Mr. O'Quinn's operation from that site
violated the terms of his station authorizations and thereby
violated Section 73.1350(a) of the Rules.
5. Mr. O'Quinn contends that the Commission renewed his
license without informing him that the O'Quinn stations'
coordinates were incorrect; that the Commission never told him
``about changing out the analog readings''; and that the
coordinates he received from his engineers were ``correct at the
time.'' All of these arguments are apparently based on the
incorrect belief that the availability of the GPS technology
imposes a new or different requirement on broadcast licensees.
Broadcast licensees were and still are required to provide
accurate coordinates for their transmitter sites and to operate
their stations from the authorized coordinates. The availability
of the GPS technology does not change these requirements; GPS
simply provides an additional means of determining the correct
coordinates. Thus, the coordinates Mr. O'Quinn received from his
engineers were not ``correct at the time''; they were and remain
incorrect.
6. Mr. O'Quinn contends his violation of Section
73.1350(a) was not willful. He argues that ``the FCC never told
us this had to be done'' and he ``had no idea . . . that our
coordinates needed to be upgraded to [GPS].'' These arguments
also are based on the incorrect belief that the use of GPS to
determine broadcast station coordinates imposes a new or
different requirement on broadcast licensees. In addition, Mr.
O'Quinn argues that his actions do not fit a dictionary
definition of ``willful'': ``done deliberately: intentional.''
This is not the definition of ``willful'' that the Commission
uses. The term ``willful,'' as used in Section 503(b) of the
Communications Act of 1934, as amended (``Act''),5 does not
require a finding that the rule violation was intentional or that
the violator was aware that it was committing a rule violation.
Section 312(f)(1) of the Act,6 which applies to violations for
which forfeitures are assessed under Section 503(b), provides
that ``[t]he term `willful,' ... means the conscious and
deliberate commission or omission of such act, irrespective of
any intent to violate any provision of this Act or any rule or
regulation of the Commission authorized by this Act ....'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). The
act of operating the O'Quinn stations from their actual location
was conscious and deliberate and, therefore, willful even though
Mr. O'Quinn was unaware that the location was unauthorized.7 We
affirm the conclusion that Mr. O'Quinn's violation of Section
73.1350(a) of the Rules was willful.
7. In the Forfeiture Order, we gave Mr. O'Quinn credit for
his history of overall compliance and reduced the forfeiture
amount from $4,000 to $3,000. Mr. O'Quinn's ``record of forty
(40) years of running a top-notch small market station in a town
of 6,000'' does not warrant further reduction or cancellation of
the forfeiture.
8. Mr. O'Quinn again asserts that he is unable to pay the
proposed forfeiture but again does not provide any financial
documentation from which we can assess his ability to pay.8
Therefore, we again decline to cancel or reduce the proposed
forfeiture on the basis of inability to pay.
9. We have considered the forfeiture amount and we have
examined Mr. O'Quinn's petition for reconsideration pursuant to
the statutory factors prescribed by Section 503(b)(2)(D) of the
Act,9 and in conjunction with the Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines,10 as well. As a result of
our review, we conclude that Mr. O'Quinn willfully violated
Section 73.1350(a) of the Rules and find that neither
cancellation nor reduction of the monetary forfeiture is
appropriate.11
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act12 and Section 1.106 of the Rules,13 Mr. O'Quinn's
petition for reconsideration of the Forfeiture Order IS DENIED
and the Forfeiture Order IS AFFIRMED.
11. 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.14
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/Acct. No. and FRN
No. referenced above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. Requests for
full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.15
12. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by First Class and Certified Mail, Return Receipt
Requested, to Farnell O'Quinn, 731 College Street, Eastman,
Georgia 31023.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Farnell O'Quinn, 18 FCC Rcd 16354 (Enf. Bur. 2003).
2 47 C.F.R. § 73.1350(a).
3 We note that Mr. O'Quinn filed an application with the
Commission on October 28, 2002, to correct the coordinates of
WUFF(AM). See File No. BP-20021028AAJ. That application was
granted June 2, 2003. In addition, Mr. O'Quinn filed an
application with the Commission on October 25, 2002, to correct
the coordinates of WUFF-FM. See File No. BPH-20021025AAB. That
application is pending.
4 Notice of Apparent Liability for Forfeiture, NAL/Acct No.
200232480012 (Enf. Bur., Atlanta Office, released July 8, 2002).
5 47 U.S.C. § 503(b).
6 47 U.S.C. § 312(f)(1).
7 See KM Radio of St. Louis, L.L.C., 19 FCC Rcd 5847, 5851-52
(2004).
8 As stated 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 practices
(``GAAP''); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. NAL at para. 10. The Commission has long
recognized that gross revenues are the primary indicator of a
licensee's ability to pay a forfeiture. See PJB Communications
of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992) (finding that
gross receipts are a ``very useful yardstick'' in analyzing a
company's financial condition for forfeiture purposes).
9 47 U.S.C. § 503(b)(2)(D).
10 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
11 Mr. O'Quinn claims that the FCC agent said that the District
Director of the Atlanta Office was going to recommend against a
monetary forfeiture. We note, however, that, even assuming
arguendo that the agent stated that the District Director was
going to recommend that there not be a forfeiture and even
assuming arguendo that such an agent statement would bind the
Bureau, Mr. O'Quinn was never informed that no forfeiture would
be imposed.
12 47 U.S.C. § 405.
13 47 C.F.R. § 1.106.
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.