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

In the Matter of                )
                                                       )                
File No. EB-02-CG-522
Mercury Broadcasting Company, Inc.   )  
                                )             NAL/Acct.       No. 
200332320004                    
Station WKBF (AM)               )    
Moline, Illinois                )       FRN: 0001 6778 06
                                
                        FORFEITURE ORDER 

Adopted:   September 28, 2004           Released:  September  30, 
2004

By the Assistant Chief, Enforcement Bureau:

I.           INTRODUCTION

   1.          In this Forfeiture Order  (``Order''), we issue  a 
      monetary  forfeiture  of   eight  thousand  eight   hundred 
      dollars  ($8,800) to  Mercury  Broadcasting  Company,  Inc. 
      (``Mercury'')  for  willful  and  repeated  violations   of 
      Sections  17.50  and   17.57  of  the  Commission's   Rules 
      (``Rules'').   The  noted   violations  involve   Mercury's 
      failure to  comply with  the prescribed  antenna  structure 
      painting requirements and failure  to register a change  in 
      tower ownership.

   2.          In January  24,  2003, the  Commission's  Chicago, 
      Illinois Field Office (``Chicago Office'') issued a  Notice 
      of Apparent Liability  for Forfeiture (``NAL'') to  Mercury 
      for  a  proposed  forfeiture  in  the  amount  of  thirteen 
      thousand dollars ($13,000).1  Mercury responded to the  NAL 
      on February 24, 2003.

II.         BACKGROUND

   3.          Mercury is the licensee of AM radio station  WKBF, 
      Rock Island,  Illinois.  Mercury  owns that  station's  two 
      antenna structures  (#s  1009199 and  1009200),  which  are 
      located  at  53rd  Street  and  Old  Colona  Road,  Moline, 
      Illinois.  The Commission's Antenna Structure  Registration 
      (``ASR'') database lists  each structure's height as  108.2 
      meters above  ground level  (355 feet).   The  registration 
      requires appropriate marking and lighting.

   4.          On July 31, 2002, an agent from the Chicago Office 
      inspected  WKBF's  antenna  structure  site.2   The   agent 
      observed that  both  antenna structures'  paint  was  badly 
      faded,  and sections  of  the  towers  had  paint  missing, 
      exposing the  bare metal.   On August  5, 2002,  the  agent 
      discovered  that  the  Commission  ASR  data  base   listed 
      another company as  the licensee for  WKBF.  Based on  this 
      inspection and information, on August 7, 2002, the  Chicago 
      Office issued a  Notice of Violation  (``NOV'') to  Mercury 
      for violations of Section  17.50 of the Rules, for  failure 
      to comply  with the prescribed  antenna structure  marking, 
      and Section 17.57,  failure to register  a change in  tower 
      ownership.  On August  16, 2002, Mercury  responded to  the 
      NOV.  It did not dispute the noted violations, but  instead 
      submitted  information  documenting  that  it  was  in  the 
      process of  having  the towers  painted,  and that  it  had 
      updated its tower registration with the Commission.3  

   5.             On January 24, 2003, the Chicago Office  issued 
      an NAL  for  a forfeiture  in  the amount  of  $13,000  for 
      apparent willful and repeated violations of Sections  17.50 
      ($10,000) and  17.57 ($3,000)  of the  Commission's  Rules.  
      Mercury responded to the NAL on February 24, 2003.  In  its 
      response, Mercury did not dispute the findings of the  NAL; 
      rather, Mercury sought a  reduction or cancellation of  the 
      proposed forfeiture  based  on its  good faith  and  prompt 
      remedial  efforts, the  nature  and  circumstances  of  the 
      violations,  and   its  record  of   compliance  with   the 
      Commission's Rules.    

III.      DISCUSSION

   6.            The proposed forfeiture amount in this case  was 
      assessed  in   accordance  with  Section   503(b)  of   the 
      Communications Act of 1934, as amended (``Act''),4  Section 
      1.80 of the Rules,5 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'').  Section 503(b) of the Act requires that  the 
      Commission,  in examining  Mercury's  response,  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   As   discussed   below,  we   have   considered 
      Mercury's response to the  NAL in light of these  statutory 
      factors  and have  found  that reduction  of  the  proposed 
      forfeiture is warranted.

   7.            Section 17.50 of the Rules provides that antenna 
      structures  requiring   painting   shall  be   cleaned   or 
      repainted  as   often  as   necessary  to   maintain   good 
      visibility.  Mercury admitted  that its antenna  structures 
      needed repainting.   Section 17.57  of the  Rules  requires 
      the owner of an antenna  structure for which an ASR  number 
      has been obtained  to notify the  Commission of any  change 
      in the  ownership information.   Mercury concedes  that  it 
      did  not do  so  following an  ownership  change.   Section 
      312(f)(1)  of the  Communications  Act7  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 .  . 
      .''8  Similarly,  Section 312  (f)(2) of  the Act  provides 
      that ``the term `[r]epeated,' . . . , means the  commission 
      or omission of such act  more than once or, if  continuous, 
      for more than one day.''9  We find that Mercury's  failures 
      to keep  its  antenna structure  painted to  maintain  good 
      visibility, and  to immediately  notify the  Commission  of 
      any  change  in  ownership  information  were  willful  and 
      repeated.

   8.             In support of its claim of good faith,  Mercury 
      submitted documentation that  it had begun negotiations  to 
      have the towers  repainted several months  before an  agent 
      from  the  Chicago  Office  inspected  the  towers  in  the 
      presence of Mercury's  Chief Engineer and Engineer.   After 
      reviewing this supporting  documentation, we conclude  that 
      a reduction of $2,000 of the proposed forfeiture amount  is 
      appropriate based on Mercury's  good faith efforts made  to 
      keep its towers  in conformance with  Section 17.50  before 
      being  notified  of   the  violations  by  the   Commission 
      staff.10  

   9.              Mercury  also  claims  that  the  nature   and 
      circumstances  of its  violations  reveal  ``no  threat  to 
      public  safety,''   thus   warranting  reduction   of   the 
      forfeiture  amount.   Specifically,   Mercury  notes   that 
      because the towers were  registered [in another name],  its 
      inadvertent failure  to register the  ownership change  was 
      not a  grave offense, nor  was its failure  to repaint  the 
      towers  because Mercury  repainted  them  so  quickly  upon 
      Commission  notice.  After  reviewing  the  facts  of  this 
      case, we find that  Mercury's violations are not  mitigated 
      because there was  no showing of harm  to the public.   The 
      Commission  has   emphasized   the  importance   of   tower 
      registration in  order  to be  able  to contact  the  tower 
      owner in  case a problem  arises.11  Moreover,  it is  well 
      established that a  licensee cannot absolve  itself of  the 
      failure to operate in  compliance with Commission Rules  by 
      simply  claiming  that  there  was  no  harm  done  to  the 
      public.12  Similarly, Mercury's  claim of inadvertence  for 
      failure to notify  the Commission of  the ownership  change 
      does not  excuse or mitigate  its violation  of the  Rules.  
      As the Commission  has stated, ``inadvertence .  . . is  at 
      best  ignorance of  the  law,''  and is  not  considered  a 
      mitigating   circumstance.13     Additionally,    Mercury's 
      remedial actions  based  on correcting  both  its  Sections 
      17.50  and  17.57  violations  after  the  violations  were 
      discovered  by  the   Commission,  are  not  a   mitigating 
      factor.14

   10.    Finally, Mercury points out, and a search of Commission 
      records confirms, that Mercury has a history of  compliance 
      with the Commission's  rules, and that in  its 12 years  as 
      an  FCC licensee,  it  has  not been  cited  for  any  rule 
      violations  for  its  seven  other  broadcast   stations.15  
      After considering Mercury's past history of compliance,  we 
      conclude that  a  further reduction  of two  thousand,  two 
      hundred  dollars  ($2,200)  of  the  forfeiture  amount  is 
      appropriate.  

   11.    We have  examined the  Mercury'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 Mercury  willfully 
      and repeatedly  violated Sections  17.50 and  17.57 of  the 
      Rules.   We find  that  the  proposed  forfeitures  against 
      Mercury  should be  reduced  to  the  amount  as  indicated 
      above.

     IV.       ORDERING CLAUSES

   12.    Accordingly, IT IS  ORDERED that,  pursuant to  Section 
      503(b)  of  the   Act,  and  Sections   0.111,  0.311   and 
      1.80(f)(4) of  the Rules,16  Mercury Broadcasting  Company, 
      Inc. IS LIABLE FOR A  MONETARY FORFEITURE in the amount  of 
      eight thousand eight  hundred dollars ($8,800) for  willful 
      and repeated violation of  Sections 17.50 and 17.57 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.17  Payment  of the  forfeiture 
      must be  made by check  or similar  instrument, payable  to 
      the order  of the Federal  Communications Commission.   The 
      payment  must  include  the  NAL/Acct.  No.  and  FRN   No. 
      referenced above.  Payment by  check or money order may  be 
      mailed to  Forfeiture Collection  Section, Finance  Branch, 
      Federal   Communications  Commission,   P.O.   Box   73482, 
      Chicago, Illinois  60673-7482.  Payment  by overnight  mail 
      may be  sent to  Bank One/LB  73482, 525  West Monroe,  8th 
      Floor  Mailroom,  Chicago,  IL  60661.   Payment  by   wire 
      transfer may  be made  to ABA  Number 071000013,  receiving 
      bank Bank One,  and account number  1165259.  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. 20554.18  







   14.    IT IS FURTHER ORDERED that  a copy of this Order  shall 
      be sent by  First Class and  Certified Mail Return  Receipt 
      Requested to Mercury  Broadcasting Company, Inc., 115  East 
      Travis, San Antonio, Texas  78205.

                              FEDERAL COMMUNICATIONS COMMISSION

                         

                              George R. Dillon
                              Assistant Chief, Enforcement Bureau
_________________________

1 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200332320004 (Enf.  Bur., Chicago  Office, released  January  24, 
2003).    

2  The NAL, at paragraph 2,  identifies the day of inspection  as 
July 3,  2002.  The  Notice of  Violation and  the  investigative 
record, however, correctly identify  the inspection date as  July 
31, 2002.

3 The documentation included a  list of companies to which  tower 
painting quotes  were sent  out  on April  30,  2002, and  a  bid 
acceptance dated July 24, 2002 and signed July 29, 2002.

4 47 U.S.C.  503(b).

5 47 C.F.R.  1.80.

6 47 U.S.C.  503(b)(2)(D).

7 47 U.S.C.  312(f)(1).

8 See  Southern  California  Broadcasting Co.,  6  FCC  Rcd  4387 
(1991).

9 47 U.S.C.  312(f)(2).

10 See Access.1 Communications Corp. - NY, 18 FCC Rcd 22289 (Enf. 
Bur. 2003) (reducing a  forfeiture where a  licensee was able  to 
demonstrate that it  had taken significant  steps towards  having 
its antenna structure repainted  before the Commission  inspected 
the tower).   

11  See American Tower Corporation, 16 FCC Rcd 1282 (2001).

12 In PJB Communications of Virginia, Inc. (7 FCC Rcd 2088,  2088 
(1992), the  Commission did  not downwardly  adjust a  forfeiture 
based on  wireless  carrier's  claims  that  its  rule  violation 
[failure to file  required notifications  to maintain  authorized 
operation of one-way paging facilities] did not adversely  affect 
the public. The Commission further explained that licensees  have 
a duty to operate in accordance with Commission rules, and cannot 
absolve themselves of the failure  to do by simply claiming  that 
there was no harm done to the public.  The Commission  maintained 
that  there  is  an  independent  public  interest  in  licensees 
complying with the rules. 

13Southern California Broadcasting Co., supra, note 8 at 4388.

14 See Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994), ``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.'' 

15 Mercury  cites  four  different  cases  where  the  Commission 
reduced a forfeiture based on  the licensees' history of  overall 
compliance, and one  case based on  the Commission's  discretion.  
Because these  cases support  the action  we are  taking in  this 
case, no further discussion is necessary. 

16 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

17 47 U.S.C.  504(a).

18 See 47 C.F.R.  1.1914.