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

In the Matter of                )
                                )
Mitchell Communications, Inc.   )    File No. EB-02-NF-039
                                )    NAL/Acct. No. 200232640003
Licensee of Station WDVA(AM)    )    FRN 0007-0270-63
Danville, Virginia              )    
                                   

                        FORFEITURE ORDER 

Adopted: November 5, 2002               Released:   November   7, 
2002

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary forfeiture in the amount of thirteen thousand  dollars 
  ($13,000)  to  Mitchell  Communications,  Inc.  (``Mitchell''), 
  licensee of Station  WDVA(AM), Danville, Virginia, for  willful 
  and repeated violation  of Section 17.4(a) of the  Commission's 
  Rules (``Rules'')  and willful  violation of  Section 73.49  of 
  the Rules.1   The noted violations  involve Mitchell's  failure 
  to register  four antenna structures used  as an antenna  array 
  for  WDVA(AM) and  failure to  enclose its  antenna  structures 
  within effective locked fences or other enclosures.

2.        On June 10,  2002, the  Commission's Norfolk,  Virginia 
  Resident Agent Office  (``Norfolk Office'') issued a Notice  of 
  Apparent Liability for  Forfeiture (``NAL'') to Mitchell for  a 
  forfeiture  in   the  amount  of   thirteen  thousand   dollars 
  ($13,000) for  the above noted  violations.2  Mitchell filed  a 
  response to the NAL on July 8, 2002.

                         II.  BACKGROUND

3.        On August 8,  2000, an  agent from  the Norfolk  Office 
  inspected  WDVA(AM)  and  determined  that  the  four   antenna 
  structures used as part  of an antenna array for WDVA(AM)  were 
  not registered.  On  March 20, 2001, the Norfolk Office  issued 
  an NAL finding  Mitchell apparently liable for a forfeiture  in 
  the amount of $3,000  for failure to register the four  antenna 
  structures  in willful  violation  of Section  17.4(a)  of  the 
  Rules.3   The  Enforcement Bureau  issued  a  Forfeiture  Order 
  assessing  a  $3,000  forfeiture  against  Mitchell  for   this 
  violation on  July 6, 2001.4  Mitchell  paid the forfeiture  in 
  full on August 8, 2001.

4.        On March 26, 2002, in response to a complaint, an agent 
  from  the  Norfolk   Office  inspected  WDVA(AM).   The   agent 
  determined that  the four  antenna structures used  as part  of 
  antenna array for  WDVA(AM) were still not registered with  the 
  Commission.    The  agent   also  observed   that  the   fences 
  surrounding  the four  antenna  structures were  all  unlocked.  
  Mitchell's president, C.  G.  Hairston, told the agent that  he 
  had  hired someone  to register  the  towers, but  provided  no 
  explanation as  to why  the fences  were unlocked.   On May  3, 
  2002,  the agent  searched the  Commission's antenna  structure 
  registration database  and determined  that Mitchell's  antenna 
  structures were still not registered.  

5.        On June 10, 2002, the Norfolk Office issued an NAL  for 
  a $13,000  forfeiture to Mitchell for  failure to register  its 
  antenna  structures  in  willful  and  repeated  violation   of 
  Section  17.4(a)  of  the Rules  and  failure  to  enclose  its 
  antenna structures within an effective locked fence in  willful 
  violation of  Section 73.49 of the  Rules.  The Norfolk  Office 
  noted that the  base forfeiture amount for failure to  register 
  an antenna  structure is  $3,000 but adjusted  the base  amount 
  for this violation upward to $6,000 because Mitchell's  failure 
  to register these antenna structures was a repeated  violation.  
  On July 8, 2002, Mitchell filed a response to the NAL in  which 
  it  seeks cancellation  of the  forfeiture.  Although  Mitchell 
  acknowledges that  the towers  are not  registered, it  asserts 
  that its failure to register the towers was not intentional  or 
  willful.  Mitchell asserts  that it only recently learned  that 
  registration of the  structures was required, that it hired  an 
  expert  to   prepare  and  submit   applications  for   antenna 
  structure  registration to  the FCC,  and that  the forms  were 
  submitted to  the FCC on or about  May 11, 2001.  However,  the 
  FCC returned these  forms to Mitchell because Mitchell had  not 
  filed  the appropriate  notification  to the  Federal  Aviation 
  Administration   (``FAA'')  and   received  a   ``no   hazard'' 
  determination.  Mitchell  states that  it then  engaged an  FAA 
  expert who submitted the appropriate documents to the FAA,  but 
  the FAA has not yet issued an aeronautical study number.   With 
  respect  to the  fencing violation,  Mitchell admits  that  the 
  fences were not locked on the date of inspection.  However,  it 
  asserts that  it truly believed  that there were  locks on  the 
  gates, that there is no evidence that the fences were  unlocked 
  on any other day, and that locks were installed on the date  of 
  inspection and have  been in place since that date.  Therefore, 
  Mitchell  argues  that   there  was  no  willful  or   repeated 
  violation of Section 73.49.

                      III.      DISCUSSION

6.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the  Communications Act  of 
  1934, as amended,  (``Act''),5 Section 1.80 of the Rules,6  and 
  The Commission's Forfeiture  Policy Statement and Amendment  of 
  Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture 
  Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC  Rcd 
  303  (1999) (``Policy  Statement'').  In  examining  Mitchell's 
  response,  Section  503(b)   of  the  Act  requires  that   the 
  Commission take into account 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.7

7.        Section 17.4(a) of  the Rules provides  that owners  of 
  existing antenna  structures that require  notification to  the 
  FAA  register the  structures with  the FCC.   Mitchell's  four 
  antenna  structures were  more  than  200 feet  in  height  and 
  therefore  require notification  to  the FAA  and  registration 
  with  the  FCC.   Mitchell  admits  that  the  towers  are  not 
  registered.  Accordingly,  we find that  Mitchell's failure  to 
  register these towers is a violation of Section 17.4(a).

8.        Mitchell argues that the  forfeiture proposed for  this 
  violation should be  cancelled because its failure to  register 
  the towers was  not willful or intentional.  Section 503(b)  of 
  the Act gives  the Commission authority to assess a  forfeiture 
  penalty against  any person if  the Commission determines  that 
  the person  has ``willfully  or repeatedly''  failed to  comply 
  with the provisions of the Act or with any rule, regulation  or 
  order  issued  by the  Commission.   The  term  ``willful''  as 
  employed  in Section  503(b)  of the  Act  does not  require  a 
  finding that  the rule  violation was intentional  or that  the 
  violator was  aware that it was  committing a rule  violation.8  
  While  Mitchell  states that  it  only  recently  learned  that 
  registration  of the  towers was  required,  we note  that  the 
  rules requiring  registration of antenna  structures have  been 
  in effect  since 1996  and that the  Commission has  repeatedly 
  advised  antenna structure  owners  that all  existing  antenna 
  structures subject to our rules must be registered  immediately 
  or the owners  face a monetary forfeiture or other  enforcement 
  action.9  Licensees  are expected to know  and comply with  the 
  Commission's rules.10   Furthermore, as  noted above,  Mitchell 
  was previously  assessed a forfeiture  for failure to  register 
  its  towers.    Mitchell  also   claims  that   it  filed   the 
  appropriate documents  with the FAA,  but the FAA  has not  yet 
  issued  an aeronautical  study number.   However, Mitchell  did 
  not   provide  any   documentation  to   support  this   claim.  
  Moreover, Enforcement Bureau staff contacted the FAA's  Eastern 
  Regional Office to confirm whether Mitchell filed the  required 
  notification  to the FAA  and the  FAA was unable  to find  any 
  record of  a filing by Mitchell for  the four towers at  issue.  
  Accordingly, we  conclude that Mitchell's  failure to  register 
  the  towers was  a  willful  violation within  the  meaning  of 
  Section  503(b).  As  explained in  the NAL,  the violation  is 
  also  repeated  because  the  Commission  previously   assessed 
  forfeiture against Mitchell  for its failure to register  these 
  towers; the violation continued through at least May 3, 2002.

9.        Section 73.49 of the Rules provides that antenna towers 
  having radio frequency  potential at the base must be  enclosed 
  within effective locked  fences or other enclosures.   Mitchell 
  does  not dispute  that  at the  time  of the  inspection,  the 
  fences  surrounding all  four of  its towers  were not  locked.  
  Accordingly, we  find that Mitchell  violated Section 73.49  of 
  the Rules by failing to enclose its four antenna towers  within 
  effective   locked  fences.    We  disagree   with   Mitchell's 
  assertion  that  this  violation  was  not  willful.   Although 
  Mitchell states  that it truly believed  that there were  locks 
  on  the fences,  it offers  no explanation  why there  were  no 
  locks on the fences at the time of the inspection, nor does  it 
  provide evidence or even assert that it periodically  inspected 
  the fences to ensure that they were locked.  Thus, we  conclude 
  that  Mitchell's  violation of  Section  73.49  was  willful.11  
  Finally, while Mitchell submits that it installed locks on  the 
  fences on the date of the inspection and that these locks  have 
  been in  place since that date,  the Commission has  repeatedly 
  stated that remedial  actions taken to correct a violation  are 
  not mitigating factors warranting reduction of a forfeiture.12  

10.       We  have  examined  Mitchell's  response  to  the   NAL 
  pursuant to  the statutory  factors above,  and in  conjunction 
  with the Policy Statement as well.  As a result of our  review, 
  we  conclude that  Mitchell willfully  and repeatedly  violated 
  Section 17.4(a)  of the  Rules and  willfully violated  Section 
  73.49  of the  Rules, and  we find  no basis  for canceling  or 
  reducing the $13,000 forfeiture proposed for these violations.

                      IV.  ORDERING CLAUSES

11.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503 of  the Act, and  Sections 0.111, 0.311  and 1.80(f)(4)  of 
  the  Rules,13 Mitchell  Communications, Inc.  IS LIABLE  FOR  A 
  MONETARY FORFEITURE in the amount of thirteen thousand  dollars 
  ($13,000)  for  willful  and  repeated  violation  of   Section 
  17.4(a) of the Rules and willful violation of Section 73.49  of 
  the Rules.

12.       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 may 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  should reference  NAL/Acct. No.  200232640003 and  FRN 
  0007-0270-63.  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
13.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be  sent by  first  class  and certified  mail  return  receipt 
  requested,   to    C.   G.   Hairston,   President,    Mitchell 
  Communications, Inc., 130 Lexington Avenue, Danville,  Virginia 
  24514. 

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1 47 C.F.R.  17.4(a) and 73.49.  

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232640003 (Enf. Bur., Norfolk Office, released June 10, 2002).

  3 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
20013264003 (Enf. Bur., Norfolk Office, released March 20, 2001).

  4 Mitchell  Communications, Inc., 16 FCC  Rcd 13186 (Enf.  Bur. 
2001).

  5 47 U.S.C.  503(b).

  6 47 C.F.R.  1.80.

  7 47 U.S.C.  503(b)(2)(D).

  8 Southern California Broadcasting Co., 6 FCC Rcd 4387  (1991); 
see also Nan Tan Computer Co.,  9 FCC Rcd 3092 (1994) (``[f]or  a 
violation to be  willful, it  is not required  that the  violator 
also intend  to violate  a requirement  of the  Commission or  be 
aware that it is committing a violation'').

  9 Antenna structure  owners were required to register  existing 
antenna structures during a  two-year filing period between  July 
1, 1996 and June 30, 1998.  Streamlining the Commission's Antenna 
Structure Clearance  Procedure and  Revision of  Part 17  of  the 
Commission's Rules Concerning Construction, Marking and  Lighting 
of Antenna Structures, 11 FCC Rcd 4272, 4281 (1995).   Subsequent 
to the  expiration of  the filing  period, the  Commission  staff 
issued a  Public  Notice  warning  antenna  structure  owners  to 
register any  unregistered  antenna  structures  subject  to  our 
requirements immediately or face possible monetary forfeitures or 
other enforcement action.   Public Notice, ``No?Tolerance  Policy 
Adopted for Unregistered Antenna Structures,'' 1999 WL 10060 (WTB 
rel. January 13, 1999).  

  10  Sitka Broadcasting  Company, Inc.,  70  FCC 2d  2375,  2378 
(1979), citing Lowndes County Broadcasting Company, 23 FCC 2d  91 
(1970) and Emporium Broadcasting Company, 23 FCC 2d 868 (1970). 

  11 Because the NAL did not find that Mitchell violated  Section 
73.49 repeatedly, we need not  address Mitchell's claim that  its 
violation of Section 73.49 was not repeated. 

  12 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).

  13 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  14 47 U.S.C.  504(a).

  15 See 47 C.F.R.  1.1914.