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Federal Communications Commission
Washington, D.C. 20554
In the matter of ) File No. EB-02-AT-100
Radio 810 Nashville, Limited ) NAL/Acct. No. 200232480004
Licensee, Station WMGC(AM) )
Murfreesboro, Tennessee ) FRN: 0006-3776-00
MEMORANDUM OPINION AND ORDER
Adopted: June 17, 2004 Released: June 21, 2004
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''),
we grant in part the Petition for Reconsideration filed by Radio
810 Nashville, Limited (``Radio 810''), licensee of Station
WMGC(AM), Murfreesboro, Tennessee. Radio 810 seeks
reconsideration of the Forfeiture Order1 in which the Chief,
Enforcement Bureau (``Bureau'') found it liable for a monetary
forfeiture in the amount of ten thousand dollars ($10,000) for
willfully violating Sections 73.1215(a), 73.1350(d)(2), and
73.1745(a) of the Commission's Rules (``the Rules'').2 The noted
violations involve Radio 810's failure to maintain properly
calibrated indicating instruments, failure to terminate broadcast
operation as required when Station WMGC(AM) operated in non-
compliance with the technical rules, and exceeding the authorized
transmitter power at Station WMGC(AM) by failing to reduce power
2. On June 18, 2002, the District Director of the
Commission's Atlanta, Georgia Field Office (``Atlanta Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'')3
in the amount of $10,000 to Radio 810. Radio 810 did not file a
response to the NAL. On March 20, 2003, the Bureau issued the
Forfeiture Order, which imposed a monetary forfeiture in the
amount of $10,000. Radio 810 filed a request for reconsideration
of the Forfeiture Order on April 23, 2003. For the reasons set
forth below, we reduce the forfeiture to seven thousand dollars
3. On March 26, 2002, the Commission's Atlanta Office
received a complaint that radio station WMGC was not reducing
transmitter power after sunset as required by the station
authorization.4 On April 16 and 17, 2002, an agent of the
Atlanta Office monitored WMGC's signal and determined that the
station did not operate at reduced transmitter power after
sunset. The agent further determined that the station remained
at a power level above the authorized night time power level of 6
watts until 8:10 p.m. Central Daylight Time (CDT). Local sunset
was 7:15 p.m. CDT in April 2002.
4. On April 18, 2002, the Atlanta Office agent
inspected Station WMGC. The agent found that the station's
antenna base current meter at the authorized daytime power level
of 5000 watts was 9.2 amperes, representing an error of 4.6
amperes from the correct level of 13.8 amperes. In addition, the
agent found that the station's antenna base current meter at the
required night time power level of 6 watts was 20 amperes, more
than 42 times the minimum normal indication of approximately 0.47
5. On June 18, 2002, the District Director of the
Atlanta Office issued the NAL in the amount of $10,000 to Radio
810. Radio 810 did not file a response to the NAL. On March 20,
2003, the Bureau issued the Forfeiture Order, imposing a monetary
forfeiture of $10,000 for willful violation of Sections
73.1215(a), 73.1350(d)(2), and 73.1745(a) of the Rules. In its
petition for reconsideration, Radio 810 admits the violations as
to operating over night time power limits but avers that this was
inadvertent error due to the onset of daylight savings time. As
to the violations regarding overage of base current meter
readings, Radio 810 argues that the Atlanta Field agent did not
use the correct equipment to take the measurements. In addition,
Radio 810 argues that the Forfeiture Order is procedurally
defective because it was mailed to the company's former address
and was addressed to Radio 810's previous corporate name.
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 Radio 810's petition,
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.7
7. As a threshold matter, we acknowledge that the NAL
and the Forfeiture Order were addressed to the previous corporate
name and address of the licensee. Accordingly, we will consider
the instant Request for Reconsideration as if it were a response
to the original NAL.8 Radio 810 argues that the Forfeiture Order
was procedurally defective. However, we find that the Forfeiture
Order was not defective, because the Commission considers the two
companies to have the same ownership. In its application for
assignment of license from Radio 810 Incorporated to Radio 810
Limited, Radio 810 stated that ``Randolph Victor Bell is the
President and (simple) majority shareholder (51 percent or more)
of the two corporations involved in this transaction....This is
an application to transfer the license of Radio Station WMGC(AM)
from Radio 810 Nashville, Incorporated, to Radio 810 Nashville,
Limited....[T]here is no monetary exchange between the two
corporate entities.''9 This case presents the situation of a
pro forma change of corporate name and/or structure wherein the
underlying controlling party remains the same. In such cases,
accountability for corporate action does not change hands after
the license is assigned.10
8. Section 73.1745(a) of the Rules states that no
broadcast station shall operate at times, or with modes or power,
other than those specified and made a part of the license. The
agent from the Atlanta Office determined that Radio 810 was
operating at its daytime power level until 8:10 p.m., 55 minutes
after sunset, in violation of the terms of its license. Radio
810 argues that this violation was minor, inadvertent, and caused
no danger to the public. Radio 810 provides an affidavit from
Ted Johnson, General Manager of WMGC. Mr. Johnson states that in
March, according to the clock in the remote control system, the
station's power was automatically switched from daytime power to
night time power at local sunset each day, 6:00 p.m. Central
Standard Time (``CST''). For the month of April, Mr. Johnson
states that local sunset was 6:15 p.m. and that Daylight Savings
Time (``DST'') went into effect April 7. Accordingly, from April
7 onward, the station was permitted to operate at daytime power
until 7:15 p.m. Central Daylight Time (``CDT'').
9. Mr. Johnson states he was present when the Atlanta
Office agent inspected WMGC. Mr. Johnson goes on to declare that
upon his being informed by the Atlanta Office agent that the
station was operating over its power limit, he determined the
over-power operations were due to an error in programming the
remote control device. The remote control device was programmed
to automatically advance the system time to DST. In addition,
station personnel also manually advanced the device for DST. Mr.
Johnson indicates that this double correction for DST resulted in
operations past sunset. Mr. Johnson also states that upon
discovery, this error was immediately corrected, as was the five-
minute time discrepancy in the clock.
10. Radio 810's explanation for its over power
operation does not take into account the fact that the Commission
received a complaint about Radio 810's operations on March 26,
2002, almost two weeks before the start of DST in that year. 11
Radio 810 has no explanation for its over power operation prior
to the commencement of DST. Moreover, we find not credible Radio
810's claim of double correction of the station's remote control
device for DST, given the length of time after the commencement
of DST that the violation existed. Even if Radio 810's
explanation is true, however, double correction of the station's
remote control device was a conscious and deliberate act,
notwithstanding that such correction was not done with intent to
violate the Rules or the terms of Radio 810's station license.12
11. We conclude that Radio 810's argument that the
forfeiture should be cancelled because over-power operations were
inadvertent is without merit. Section 503(b)(1)(B) of the Act
provides that any person who ``willfully or repeatedly'' fails to
comply with any provision of the Act or any rule, regulation or
order issued by the Commission under the Act ``shall be liable to
the United States for a forfeiture penalty.''13 The 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 ....''14 Accordingly, we conclude that
Radio 810 willfully violated Section 73.1745(a) of the Rules.15
12. In addition, Radio 810's arguments that its
violation was minor and caused no danger to the public are
without merit. The Commission has consistently found, to the
contrary, that ``[u]nauthorized presunrise operation, because of
its potential for interference to other broadcast stations, has
always been considered a serious matter....''16
13. Section 73.1350(d)(2) of the Rules requires AM
stations to terminate operation within three minutes in the event
the station operates in a manner not specified by the station
license for the pertinent time of day or hours of operation. The
Atlanta Field Office agent determined by field strength
measurement that after sunset, Radio 810's power was not reduced
for the night, in violation of the terms of its station license.
Radio 810 argues that assessing a forfeiture for this violation
is duplicative with the forfeiture for Section 73.1745(a) of the
Rules. We agree in this case; however, we clarify that Radio 810
violated both rules.
14. Radio 810's operation at daytime power levels
during prime evening listening time was capable of causing
harmful interference. The Commission's Rules concerning
transmission systems generally require termination of operations
within three hours, except where the mode of operation is not
permitted. In that case, operations must be terminated within
three minutes.17 Thus, we conclude, in this case, that Radio 810
did not have appropriate control of its station transmitter when
it operated at daytime power during nighttime hours, and this is
a separate rule violation. Moreover, for the same reasons that
the violation of 73.1745(a) was willful, we likewise find that
the violation of 73.1350(d)(2) was willful. However, under the
specific facts of this case, we will consider that the forfeiture
we proposed for violation of Section 73.1350(d)(2) is subsumed
within the forfeiture we assess for Radio 810's violation of
Section 73.1745(a) of the Rules, and accordingly, we reduce the
proposed forfeiture amount by three thousand dollars ($3000).
15. Section 73.1215(a) of the Rules sets out the
required specifications for instruments that display a linear
scale. Section 73.1215(a)(5) of the Rules requires linear scale
instruments to have a full-scale reading not greater than five
times the minimum normal indication. In this case, a 6 watt
power level the antenna base current meter should have been able
to indicate an antenna base current of approximately 0.47
amperes. The scale necessary to determine this level of antenna
base current should not be greater than approximately 2.3
amperes. Station WMGC was equipped with a base current meter
that at the time of inspection was a linear scale meter with a
full scale of 20 amperes, in violation of Section 73.1215(a) of
the Rules.18 Thus, Radio 810 did not have an antenna current
meter with sufficient range to accurately indicate the nighttime
base current power of 6 watts. Radio 810 states that the meter
in question had two levels and was capable of reading the lower
nighttime power, but Radio 810 provides no evidence that the
meter was capable of making accurate readings at the lower power
level or any other evidence that would contradict the agent's
findings at the time of inspection. Accordingly, we rely on the
agent's observation on this point. The choice of antenna base
current meters is a conscious decision by Radio 810's, and
accordingly, we find the lack of required equipment to be a
willful violation of Section 73.1215(a) of the Rules.
16. Radio 810 states that in any event, shortly after
the inspection, it replaced the meter observed during the
inspection with two separate meters to ensure compliance with the
Rules. Correction of a violation after it has been found in an
inspection is commendable, but does not warrant a reduction of
17. Radio 810 claims that paying the forfeiture would
be a substantial hardship. Radio 810 does not, however, provide
the required documentation to support its claim. As explicitly
stated in the NAL, we will not consider reducing or canceling a
forfeiture in response to a claim of inability to pay unless the
petitioner submits: (1) federal tax returns for the most recent
three-year period; (2) financial statements prepared according to
generally accepted accounting practices ("GAAP"); or (3) some
other reliable and objective documentation that accurately
reflects the petitioner's current financial status.20 Since
Radio 810 did not provide financial documentation meeting any of
these criteria, we cannot determine whether it is unable to pay
the proposed forfeiture.
18. We have examined Radio 810's Request for
Reconsideration pursuant to the statutory factors above, and in
conjunction with the Policy Statement as well. As a result of
our review, we conclude that Radio 810 willfully violated
Sections 73.1215(a), 73.1350(d)(2), and 73.1745(a) of the Rules,
but we find that the assessed forfeiture should be reduced to
seven thousand dollars ($7000).
IV. ORDERING CLAUSES
19. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act21 and Section 1.106 of the Rules,22 Radio
810's Petition for Reconsideration, which we are treating as a
Response to the March 20, 2003 Forfeiture Order IS GRANTED IN
PART AND DENIED IN PART as discussed herein.
20. 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.23 Payment shall 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 note NAL/Acct. No. 200232480004, and FRN 0006-
3776-00. 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. 20554.24
21. IT IS FURTHER ORDERED THAT a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to Mr. Randolph V. Bell, President, Radio 810
Nashville, Limited, 1920 Abrams Parkway, #387, Dallas, Texas
75214-6218, and to its counsel Matthew H. McCormick, Esq., Reddy
Begley & McCormick, LLP, 2175 K Street, N.W., Suite 350,
Washington, D.C. 20037-1845.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1Radio 810 Nashville, Inc., 18 FCC Rcd 5464 (Enf. Bur. 2003)
247 C.F.R. § 73.1215(a), 73.1350(d)(2), 73.1745(a).
3Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480004 (Enf. Bur., Atlanta Field Office, released June 18,
4WMGC's station authorization requires that the station's
transmission power be reduced from 5000 watts to 6 watts after
sunset each day.
547 U.S.C. § 503(b).
647 C.F.R. § 1.80.
747 U.S.C. § 503(b)(2)(D).
8The effect of an incorrect address in a Commission action is
that the Commission will extend or waive its 30-day response
period to permit filing of a response by the licensee in
question. See, e.g., 4,330 Applications for Authority to
Construct and Operate Multipoint Distribution Service Stations at
62 Transmitter Sites, 10 FCC Rcd. 1335 (1994) at ¶ 204. We will
consider Radio 810's petition as a response to the NAL pursuant
to 47 C.F.R. § 1.80(f)(3). An opportunity to file a petition for
reconsideration after issuance of this Order is provided pursuant
to 47 C.F.R. 1.80(i).
9Application for Consent to Assign Broadcast Station License, FCC
Form 316, Radio 810 Nashville, Inc., File No. BAL - 20011002AAA,
filed October 2, 2001, Exhibits 2, 4.
10For a general discussion of the manner in which the Commission
views pro forma assignments of license and transfers of control,
see, Federal Communications Bar Association's Petition for
Forbearance From Section 310(d) of the Communications Act
Regarding Non-Substantial Assignments of Wireless Licenses and
Transfers of Control Involving Telecommunications Carriers and
Personal Communications Industry Association's Broadband Person
Communications Services Alliance's Petition for Forbearance for
Broadband Personal Communications Services, 13 FCC Rcd. 6293
11NAL, ¶ 2.
12Section 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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
1347 U.S.C. § 503(b)(1)(B).
1447 U.S.C. § 312(f)(1); See Southern California Broadcasting
Co., 6 FCC Rcd 4387 (1991).
15``The Commission has long held that licensees and other
Commission regulatees are responsible for the acts and omissions
of their employees and independent contractors and has
consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent contractors
have resulted in violations.'' Eure Family Limited Partnership,
17 FCC Rcd 21861, 21863-64 (2002) (internal quotation marks
omitted) and cases cited therein.
16Hale Broadcasting Corporation, 79 FCC 2d 169 (1980) at ¶ 7.
1747 C.F.R. § 73.1350(d).
18Section 73.1215(f) of the Rules requires that licensees use
equipment that accurately determines operational power levels.
The Atlanta Office agent also found that Radio 810's antenna base
current meter gave a significantly inaccurate reading at daytime
power levels; the meter read only 9.2 amperes, consistent with a
transmitter power level of 2,200 watts, when it should have
produced a reading of 13.8 amperes to accurately reflect the
actual transmitter power level of 5000 watts that was measured by
the agent with field strength measuring equipment.
19AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002);
Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994).
20NAL at page 3.
2147 U.S.C. § 405.
2247 C.F.R. § 1.106.
2347 U.S.C. § 504(a).
24See 47 C.F.R. § 1.1914.