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                           Before the
                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:


I.   INTRODUCTION

     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 
at sunset. 

     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 
($7000).

II.  BACKGROUND

     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 
amperes.

     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.

III.      DISCUSSION

     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 
forfeiture.19 

     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) 
(``Forfeiture Order'').
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, 
2002) (``NAL'').
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 
(1998).
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.