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

In the Matter of                 )
                                 )
MRJ, Inc.                        )  File Number EB-02-CF-
569                              
WWYO                             )  NAL/Acct. No. 
200332340002
Pineville, West Virginia         )  FRN:  0005-9955-50
                                 )
                                 )

                MEMORANDUM OPINION AND ORDER 

Adopted:  May 10, 2004                       Released:   May 
12, 2004 

By the Chief, Enforcement Bureau:

                         I.  INTRODUCTION

     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.

                      II.   BACKGROUND

     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. 

                          III.  DISCUSSION

     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 
may require.6  

     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 
public.

     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 
willful.  

     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 
violations.''10

     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 
Rules.13  

     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 
Enforcement Bureau.





                      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 
303 (1999).  

     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 
4387 (1991).

     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 
(1994). 

     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, 
2089. 

     13 See Faith Bible College, Inc., Memorandum Opinion 
and Order, File No. EB-02-TP-221, NAL/Acct. No. 
200232700010.

     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).