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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 )
Adopted: May 9, 2003 Released: May 13, 2003
By the Chief, Enforcement Bureau:
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.
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
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.
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
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
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
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.
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,
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.