Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-CF-569
MRJ, Inc. ) NAL/Acct. No.
Pineville, West Virginia ) FRN: 0005-9955-50
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the District Director, Columbia Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that MRJ, Inc (``MRJ'') has apparently violated
Sections 11.52(a), 17.4, 73.49, and 73.3526(c) of the
Commission's Rules1 (``Rules''), by failing to conduct weekly EAS
tests of the EAS header and EOM codes, by failing to register its
antenna structure with the Commission, failing to enclose the AM
antenna in an effective locked fence, and failing to allow access
to the public inspection file. We conclude that MRJ is
apparently liable for a forfeiture in the amount of twenty two
thousand dollars ($22,000).
2. On August 14, 2002, an agent from the Commission's
Columbia, Maryland office conducted an inspection of station
WWYO, Pineville, West Virginia for compliance with FCC Rules.
The agent observed that the station did not have an EAS operating
handbook, had not conducted weekly tests of the EAS header and
EOM codes during the period June 18, 2002 to August 13, 2002, did
not monitor two EAS sources, failed to register the antenna
structure, failed to enclose the antenna in an effective locked
fence, failed to maintain the carrier frequency within tolerance,
failed to have the chief operator review the station records as
least once per week, and failed to allow access to the public
3. On August 27, 2002, the Columbia Office issued a Notice
of Violation to MRJ for violation of Sections 11.15, 11.52(a),
11.52(d), 17.4, 73.49, 73.1545(a), 73.1870(c)(3), and 73.3526(c)
of the Rules2. In reply by fax dated September 5, 2002, MRJ
stated that they were going to have a consultant fill out the
antenna registration form, a contractor had reset the fence
posts, and the licensee stated the public inspection file was in
a publicly accessible location.
4. On September 20, 2002, the Columbia Office issued a
Continuation of Notice of Violation (``Continuation'') to MRJ for
Sections 11.52(d), 17.4, 73.49, and 73.1545(a). In the
Continuation, the Columbia Office required further clarification
of the actions taken to correct the violations for failing to
monitor two EAS sources, failure to register the antenna, failure
to enclose the antenna in an effective locked fence, and failure
to maintain the carrier frequency within tolerance. MRJ
adequately addressed corrective action of the other violations in
its reply of September 5, 2002.
5. On September 30, 2002, MRJ replied to the Continuation
of Notice of Violation. In the reply, MRJ stated that the EAS
equipment was back on line, a contract to repair the fence and
gate had been let, the FAA form 7460-1 was being completed, and
the frequency tolerance problem was being worked on.
6. Section 11.52(a) of the Rules requires that broadcast
stations perform weekly tests of the EAS header and EOM codes.
The agent could not find any record to indicate that the required
weekly tests of the EAS header and EOM codes had been performed
during the period June 18, 2002 to August 13, 2002.
7. Section 17.4 of the Rules requires antenna structures
that are over 200 feet in height be registered with the
Commission. As of the release date of this notice, MRJ has not
registered the 331-foot antenna structure.
8. Section 73.49 of the Rules requires that antennas that
have radio frequency potential (voltage) at the base of the tower
must be enclosed within an effective locked fence or other
enclosure to protect the public. The agent found that the metal
poles supporting the fence gate were rusted off at ground level
and unable to provide adequate support for the gate. In
addition, the top half of the gate had the wire mesh drawn back
allowing access to the base of the tower, making the base of the
tower a safety hazard to the public.
9. Section 73.3526(c) of the rules requires that the
public inspection file be available for public inspection at any
time during normal business hours. At the inspection, the
station personnel were unable to produce the public file.
10. Based on the evidence before us, we find that MRJ
willfully3 and repeatedly4 violated Section 11.52(a) of the Rules
by failing to conduct weekly EAS tests during the period June18,
2002 to August 13, 2002, and Sections 17.4, 73.49 and 73,3526(a)
of the Rules by failing to register its antenna structure,
failing to enclose the antenna structure in an effective locked
fence and failing to provide access to the public inspection
file. The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC
Rcd 303(1999) (``Forfeiture Policy Statement'')5, sets the base
forfeiture amounts at $2,000 for failure to make required
measurements or conduct required monitoring (e.g. failure to
conduct weekly EAS tests), $3,000 for failure to file the
required forms or information (e.g. failure to register the
antenna structure), $7,000 for failure to enclose the AM antenna
in an effective locked fence, and $10,000 for violation of the
public file rules. In assessing the monetary forfeiture amount,
we must take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Communications Act of 1934 (``Act''),
as amended,6 which include 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 other such matters as justice may require. Applying the
Forfeiture Policy Statement and the statutory factors to the
instant case and applying the inflation adjustments, we believe
that a twenty two thousand dollar ($22,000) monetary forfeiture
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act7 and Sections 0.111, 0.311 and 1.80 of the
Rules,8 MRJ is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty two thousand dollars ($22,000)
for willfully violating Sections 11.52(a), 17.4, 73.49, and
73.3526(c) of the Rules.
12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, MRJ SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
13. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332340002, and FRN 0005-9955-50.
14. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200332340002.
15. 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.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
16. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
17. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical and Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to MRJ, Inc., P.O. Box 647, Bluefield, West
Charles C. Magin
1 47 C.F.R. §§ 11.52(a), 17.4, 73.49 and 73.3526(c).
2 47 C.F.R. §§ 11.15, 11.52(d), 73.1545(a), 73.1870(c)(3).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
4 Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.