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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
MRJ, Inc. ) File Number EB-02-CF-
WWYO ) NAL/Acct. No.
Pineville, West Virginia ) FRN: 0005-9955-50
MEMORANDUM OPINION AND ORDER
Adopted: May 10, 2004 Released: May
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''),
we cancel the proposed monetary forfeiture in the amount of
twenty-two thousand dollars ($22,000) issued to MRJ, Inc.
(``MRJ''), the licensee of WWYO, Pineville, West Virginia.
We find that MRJ failed to conduct weekly EAS tests of the
EAS header and EOM codes, failed to register its antenna
structure with the Commission and failed to enclose the AM
antenna in an effective locked fence in apparent willful and
repeated violation of Sections 11.52(a), 17.4, and 73.49 and
failed to allow access to the public inspection file in
apparent willful violation of 73.3256(c) of the Commission's
Rules (``Rules'')1. While we cancel the forfeiture for a
demonstrated inability to pay, we admonish MRJ for its
willful and repeated violation of Sections 11.52(a), 17.4,
73.49 of the Rules and its willful violation of Section
73.3526(c) of the Rules.
2. On August 14, 2002, an agent from the Commission's
Columbia, Maryland Office (``Columbia Office'') conducted an
inspection of Station WWYO, Pineville, West Virginia, for
compliance with Commission Rules. Following issuance of a
Notice of Violation for numerous Rules violations, and a
Continuation of Notice of Violation, the licensee replied on
September 30, 2002.
3. On December 26, 2002, the Columbia Office released
a Notice of Apparent Liability for Forfeiture (``NAL'') to
MRJ for a forfeiture in the amount of twenty-two thousand
dollars ($22,000) for violations of Sections 11.52(a), 17.4,
73.49 and 73.3526(c) of the Rules.2 MRJ filed a response on
January 17, 2003. In its response, the licensee does not
challenge the findings of the NAL, and states that they are
continuing to work on and correct problems identified in the
NAL. Additionally, MRJ seeks reduction or cancellation of
the forfeiture based upon its unique role in its community,
its commitment to continued remedial action and remedial
actions taken so far and its claimed inability to pay.
4. The proposed 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.5 In examining MRJ'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 such other matters as justice
5. 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.
6. Section 17.4 of the Rules requires antenna
structures that are over 200 feet in height be registered
with the Commission. As of the adoption date of this Order,
MRJ has not registered the 331-foot antenna structure.
7. 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
8. 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 file.
9. Based on the findings of the NAL and MRJ's
response thereto, we find that MRJ's violations of Sections
11.52(a), 17.4, and 73.49 of the Rules were willful7 and
repeated8 and its violation of Section 73.3526(c) was
10. In support of its request for cancellation or
reduction, MRJ cites its value to its ``poverty stricken''
community as a vital provider of emergency news information,
a distribution point for emergency relief supplies and the
only news station operating on the weekend in the area. MRJ
also says that it has hired contractors to repair the base
fencing and correct the other infractions and ``work on all
of the problems.'' The fact that MRJ may perform useful
service in the community does not mitigate its violations.
Similarly, MRJ's remedial repair action subsequent to
notification of the violation does not warrant cancellation
or reduction of the proposed forfeiture.9 It is well
established that ``corrective action taken to come into
compliance with Commission rules or policy is expected, and
does not nullify or mitigate any prior forfeitures or
11. MRJ also submits federal income tax returns for
years 2000, 2001, and 2002 to demonstrate its inability to
pay the monetary forfeiture.11 The Commission has
determined that, in general, a licensee's gross revenues are
the best indicator of its ability to pay a forfeiture.12
After reviewing the financial documentation submitted, we
conclude that payment of the proposed $22,000 forfeiture
would impose financial hardship and we will cancel the
proposed forfeiture. Nevertheless, we find that it is
appropriate to admonish MRJ for its willful and repeated
violation of Sections 11.52(a), 17.4, and 73.49 of the Rules
and its willful violation of Section 73.3526(c) of the
12. As of the adoption date of this Order, MRJ has
not provided evidence that it has complied with Section 17.4
of the Rules. Accordingly, we will require, pursuant to
Section 308(b) of the Act,14 that MRJ report to the
Enforcement Bureau no more than thirty (30) days following
the release of this Order whether it has come into
compliance with Section 17.4 by registering its antenna
structure with the Commission. MRJ's report must be
submitted in the form of an affidavit or declaration, under
penalty of perjury, signed by an officer or director of the
licensee. MRJ should note that its continued noncompliance
could result in additional enforcement action by the
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act15, and sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules16, the forfeiture in
the amount of twenty-two thousand dollars ($22,000) proposed
in the December 26, 2002 NAL issued to MRJ, IS CANCELLED.
14. IT IS FURTHER ORDERED THAT MRJ IS ADMONISHED for
failure to conduct weekly EAS tests of the EAS header and
EOM codes, failure to register its antenna structure with
the Commission and failure to enclose the AM antenna in an
effective locked fence in willful and repeated violation of
Sections 11.52(a), 17.4, and 73.49 of the Rules and failure
to allow access to the public inspection file in willful
violation of 73.3526(c) of the Rules.
15. IT IS FURTHER ORDERED that, pursuant to Section
308(b) of the Act, MRJ must submit the report described in
Paragraph 12 above, no more than thirty (30) days following
the release of this Order, to the Federal Communications
Commission, Spectrum Enforcement Division, 445 12th Street,
S.W., Room 4-A223, Washington, D.C. 20554, Attention:
Emmitt Carlton, Esq.
16. IT IS FURTHER ORDERED that a copy of this
Forfeiture Order shall be sent by Certified Mail, Return
Receipt Requested, to MRJ, Inc., P.O. Box 647, Bluefield,
West Virginia 24701.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 11.52(a), 17.4, 73.49 and 73.3526(c).
2 Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200332340002 (Enf. Bur., Columbia Office,
released December 26, 2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
6 47 U.S.C. § 503(b)(2)(D)
7 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
8 As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one
day. The Conference Report for Section 312(f)(2) indicates
that Congress intended to apply this definition to Section
503 of the Act as well as Section 312. See H.R. Rep. 97th
Cong. 2d Sess. 51 (1982). See Southern California
Broadcasting Company, id. at 4387, 4388 (1991) and Western
Wireless Corporation, 18 FCC Rcd 10319 at fn 56 (2003).
9 See KGVH, Inc., 42 FCC 2d 258, 259 (1973).
10 Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099
11 See PJB Communications of Virginia, Inc., 7 FCC Rcd
2088 (1992) (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's
gross revenues); Hoosier Broadcasting Corporation, 15 FCC
Rcd 8640, 8641 (Enf. Bur. 2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of
the violator's gross revenues); Afton Communications Corp.,
7 FCC Rcd 6741 (Com. Car. Bur. 1992) (forfeiture not deemed
excessive where it represented approximately 3.9 percent of
the violator's gross revenues).
12 See PJB Communications of Virginia, Inc. at 2088,
13 See Faith Bible College, Inc., Memorandum Opinion
and Order, File No. EB-02-TP-221, NAL/Acct. No.
14 47 U.S.C. § 308(b).
15 47 U.S.C. § 503(b).
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).