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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Mitchell Communications, Inc. ) File Number EB-02-NF-039
Licensee of AM Radio Station ) NAL/Acct.No. 200232640003
WDVA, ) FRN: 0007-0270-63
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 10, 2002
By the Enforcement Bureau, Norfolk Office:
1. In this Notice of Apparent Liability for Forfeiture, we
find that Mitchell Communications, Inc., (``Mitchell''), licensee
of AM Broadcast Station WDVA, Danville, Virginia, willfully and
repeatedly violated Section 17.4(a) of the Commission's Rules
(``Rules''),1 and willfully violated Section 73.49 of the Rules2
by failing to register its antenna structures and by failing to
enclose its antenna towers within an effective locked fence or
other enclosure. We conclude that Mitchell is apparently liable
for forfeiture in the amount of thirteen thousand dollars
2. On August 8, 2000, an agent of the Commission's Norfolk
Resident Agent Office (``Norfolk Office'') determined that
Mitchell failed to register its four antenna structures used as
part of AM radio station WDVA, Danville, Virginia. This
violation resulted in a $3,000 forfeiture against Mitchell for
willful violation of Section 17.4(a) of the Rules, which Mitchell
paid in full.3
3. On March 26, 2002, in response to a complaint, an agent
of the Norfolk Office inspected AM radio station WDVA, Danville,
Virginia, and Mitchell's four antenna structures used as part of
radio station WDVA. The agent determined that the four antenna
structures were still not registered with the Commission. The
agent questioned the station owner, C. G. Hairston, about the
tower registration, to which Mr. Hairston responded that the
towers were not registered and that he had hired someone to
register the towers. The agent also observed that the fencing at
the base of all four antenna towers was unlocked. The agent
informed Mr. Hairston about the unlocked fencing, and Mr.
Hairston provided no explanation.
4. On May 3, 2002, a search of the FCC Antenna Structure
Registration database determined that Mitchell's antenna
structures remained unregistered.
5. Section 17.4(a) of the Rules requires that the owners
of existing antenna structures that require notice of proposed
construction to the Federal Aviation Administration (``FAA'')
must register the structure with the Commission. Mitchell's
antenna structures required registration with the Commission
because, due to the height of the structures, they require
notification of proposed construction to the FAA. From August 8,
2000 to at least May 3, 2002, Mitchell failed to register its
four antenna structures used as part of AM radio station WDVA.
6. Section 73.49 of the Rules requires that antenna towers
having radio frequency potential
at the base be enclosed within effective locked fences or other
enclosure. On March 26, 2002, the fences surrounding all four of
Mitchell's antenna towers for AM radio station WDVA were found
7. Based on evidence before us, we find that Mitchell
willfully4 and repeatedly5 violated Section17.4(a) of the Rules
by failing to register its antenna structures, and willfully
73.49 of the Rules by failing to enclose its antenna towers
within an effective locked fence or other enclosure.
8. Pursuant to Section 1.80(b)(4) of the Commission's
Rules, the base forfeiture amount
for failing to register antenna structures is $3,000 (failure to
file required forms or information), and for failing to enclose
its antenna towers within an effective locked fence or other
enclosure is $7,000.6 Section 503(b)(2)(D) of the Communications
Act of 1934, as amended (``Act'') requires us to 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
other such matters as justice may require.''7 Mitchell's
repeated failure to register its antenna structures warrants an
upward adjustment of the $3,000 base forfeiture amount for that
violation to $6,000. Considering the entire record and applying
the statutory factors listed above, this case warrants a $13,000
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80 Rules,9
Mitchell is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of thirteen thousand dollars ($13,000)
for willful and repeated violation of Section 17.4(a) of the
Rules, and willful violation of Section 73.49 of the Rules.
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Mitchell SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
11. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications, P. O. Box 73482, Chicago,
Illinois 60673-7482. The payment must include the FRN and NAL
Acct. No. referenced in the letterhead above.
12. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. and FRN referenced in the letterhead above.
13. The Commission 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.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
14. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Mitchell Communications, Inc., at 130 Lexington
Avenue, Danville, Virginia 24541. An additional copy shall be
sent to Mitchell Communications, Inc., at One Radio LN, Danville,
FEDERAL COMMUNICATIONS COMMISSION
1 47 C.F.R. § 17.4(a).
2 47 C.F.R. § 73.49.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
20013264003 (Enf. Bur., Norfolk Office, released March 20, 2001).
Mitchell paid the forfeiture in full on August 8, 2001.
4Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `willful', when used with reference to the
commission or omission of any act , means that conscious and
deliberate commission or omission of such act, irrespective of
any intent to violate any provision of the Act...'' . See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
5Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`repeated', when used with reference to the commission or
omission of any act, means the commission or omission of such act
more than once or, if such commission or omission is continuous,
for more than one day.''
6 47 C.F.R. § 1.80(b)(4).
7 47 U.S.C. § 503 (b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.11, 0.311, 1.80.
10 See 47 C.F.R. § 1.1914.