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

In the Matter of                )
                                )
Tri-County Broadcasting, Inc.   )    File No. EB-02-NF-030
                                )    NAL/Acct. No. 200232640007
Licensee of Station WBRG(AM)    )    FRN 0006-0159-29
Madison Heights, Virginia       )    

                        FORFEITURE ORDER 

Adopted:  May 9, 2003                   Released:   May 13, 2003

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary  forfeiture in  the amount  of four  thousand  dollars 
  ($4,000)  to Tri-County  Broadcasting,  Inc.  (``Tri-County''), 
  licensee of  Station WBRG(AM), Madison  Heights, Virginia,  for 
  willful and  repeated violation  of Section  73.1745(a) of  the 
  Commission's Rules (``Rules'').1  The noted violations  involve 
  Tri-County's failure to reduce power at WBRG(AM) at sunset  and 
  to limit WBRG(AM)'s pre-sunrise power.  

2.        On August 15, 2002, the Commission's Norfolk,  Virginia 
  Resident Agent Office  (``Norfolk Office'') issued a Notice  of 
  Apparent Liability for  Forfeiture (``NAL'') to Tri-County  for 
  a forfeiture in the amount of four thousand dollars  ($4,000).2  
  Tri-County filed a response to the NAL on September 16, 2002.

                         II.  BACKGROUND

3.        On February 27 and February 28, 2002, in response to  a 
  complaint alleging that WBRG(AM) exceeded its authorized  power 
  during  pre-sunrise hours,  an agent  from the  Norfolk  Office 
  conducted  field strength  measurements of  WBRG(AM)'s  signal.  
  WBRG(AM) is  licensed to  operate at 1,000  watts from  sunrise 
  until sunset, 98 watts from sunset until 6 a.m., and 475  watts 
  during pre-sunrise  hours (from 6:00  a.m. until sunrise).   On 
  February 27,  2002, the  agent observed  that WBRG(AM)'s  field 
  strength remained  constant between  4:30 p.m.  and 9:25  p.m., 
  i.e., the station did  not reduce power at  local sunset.   The 
  agent observed  that the  station signed off  the air  sometime 
  between  9:25 p.m.  and 10:16  p.m. on  February 27,  2002  and 
  recommenced  broadcasting  before 6:30  a.m.  on  February  28, 
  2002.  On  February 28,  2002, between 6:30  a.m. and  sunrise, 
  the agent  observed that  WBRG(AM)'s field  strength level  was 
  the same as it had been the previous day.  

4.        On February 28, 2002, the agent inspected  Tri-County's 
  facilities at WBRG(AM).   Station logs, meter readings and  the 
  agent's direct  power measurements revealed  that WBRG(AM)  was 
  operating  with  approximately  1,000  watts  of  power  during 
  daytime  hours,   post-sunset  hours,  and  pre-sunrise   hours 
  between February 27 and February 28, 2002.  The agent  notified 
  Tri-County's  management that  WBRG(AM) had  been operating  in 
  excess  of   its  authorized  power,   in  addition  to   other 
  violations.  

5.        On March 4, 2002, Tri-County sent the Norfolk Office  a 
  fax detailing remedial  actions taken by Tri-County,  including 
  training its staff  to reduce and increase the station's  power 
  at required times.  

6.        On August 15,  2002, the Norfolk  Office issued an  NAL 
  finding Tri-County  apparently liable for  a $4,000  forfeiture 
  for failure to reduce  power at WBRG(AM) at sunset and  failure 
  to limit WBRG(AM)'s  pre-sunrise power in willful and  repeated 
  violation of Section 73.1745(a) of the Rules.  In its  response 
  to the NAL,  Tri-County does not dispute that these  violations 
  occurred.   However,  Tri-County  seeks  cancellation  of   the 
  proposed  forfeiture.  Tri-County  asserts  that it  fired  the 
  employee who overpowered  the station on February 27, 2002  and 
  that  it  has  retrained  its  staff  to  operate  WBRG(AM)  in 
  compliance  with the  Commission's  rules.  In  addition,  Tri-
  County maintains that  payment of the proposed forfeiture  will 
  impose a hardship on it and provides its tax returns for  1999, 
  2000 and 2001 in support of this assertion.

                      III.      DISCUSSION

7.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the  Communications Act  of 
  1934, as amended,  (``Act''),3 Section 1.80 of the Rules,4  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  Tri-County'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.5

8.        Section  73.1745(a)  of  the  Rules  provides  that  no 
  broadcast  station shall  operate at  times, or  with modes  or 
  power,   other   than   those   specified   in   the    station 
  authorization.  WBRG(AM) is licensed to operate at 1,000  watts 
  from sunrise until sunset,  98 watts from sunset until 6  a.m., 
  and 475  watts during pre-sunrise hours  (from 6:00 a.m.  until 
  sunrise).  On  February 27, 2002, WBRG(AM)  did not reduce  its 
  power at sunset and on February 28, 2002, WBRG(AM) operated  at 
  daytime  power  levels during  pre-sunrise  hours.   Tri-County 
  does not dispute that these violations occurred.   Accordingly, 
  we  find that  Tri-County willfully6  and repeatedly7  violated 
  Section 73.1745(a) of the Rules.

9.        Tri-County asserts  that  it  fired  the  employee  who 
  overpowered the  station on February 27,  2002 and that it  has 
  retrained its staff to operate WBRG(AM) in compliance with  the 
  Commission's  rules.  However,  the Commission  has  repeatedly 
  stated that remedial  actions taken to correct a violation  are 
  not mitigating factors warranting reduction of a forfeiture.8  

10.       Tri-County also asserts  that payment  of the  proposed 
  forfeiture will impose a financial hardship on it.  In  support 
  of  this assertion,  Tri-County provides  its tax  returns  for 
  1999, 2000 and  2001.  The Commission has repeatedly held  that 
  a  company's gross  revenues  are  the best  indicator  of  its 
  ability to pay a forfeiture.9  After considering the  financial 
  information  submitted by  Tri-County,  we conclude  that  Tri-
  County's gross  revenues are sufficient to  enable it to pay  a 
  $4,000 forfeiture.

11.       We have  examined  Tri-County'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  Tri-County willfully and repeatedly  violated 
  Section  73.1745(a) of  the Rules,  and we  find no  basis  for 
  reduction   of  the   $4,000  forfeiture   proposed  for   this 
  violation.  

                      IV.  ORDERING CLAUSES

12.       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,10 Tri-County  Broadcasting, Inc.  IS LIABLE  FOR  A 
  MONETARY  FORFEITURE in  the amount  of four  thousand  dollars 
  ($4,000)  for  willful   and  repeated  violation  of   Section 
  73.1745(a) of the Rules.

13.       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.11  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.  200232640007 and  FRN 
  0006-0159-29.  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. 
  20554.12

14.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be sent by first class mail and certified mail, return  receipt 
  requested,  to Tri-County  Broadcasting, Inc.,  P.O. Box  1079, 
  Lynchburg, Virginia 24505.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1 47 C.F.R.  73.1745(a).  

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232640007 (Enf.  Bur.,  Norfolk Office,  released  August  15, 
2002).    

  3 47 U.S.C.  503(b).

  4 47 C.F.R.  1.80.

  5 47 U.S.C.  503(b)(2)(D).

  6 Section  312(f)(1) of the Act,  47 U.S.C.  312(f)(1),  which 
applies to violations  for which forfeitures  are assessed  under 
Section 503(b) of the Act, 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).

  7  Section 312(f)(2)  of the  Act  provides that  ``[t]he  term 
`repeated,' ... means the commission or omission of such act more 
than once or, if such  commission or omission is continuous,  for 
more than one day.''  47 U.S.C.  312(f)(2).

  8 See  e.g., AT&T Wireless  Services, Inc., 17  FCC Rcd  21866, 
21871 (2002);  Seawest  Yacht Brokers,  9  FCC Rcd  6099  (1994); 
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).

  9  See  Long Distance  Direct,  Inc.,  15 FCC  Rcd  3297,  3305 
(2000); PJB Communications  of Virginia,  Inc., 7  FCC Rcd  2088, 
2089 (1991).   The  Commission  has also  stated  that  if  gross 
revenues are  sufficiently  great,  the  existence  of  operating 
losses does not by  itself mean that a  company cannot afford  to 
pay a forfeiture.  Id.  

  10 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  11 47 U.S.C.  504(a).

  12 See 47 C.F.R.  1.1914.