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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Mitchell Communications, Inc. ) File No. EB-02-NF-039
) NAL/Acct. No. 200232640003
Licensee of Station WDVA(AM) ) FRN 0007-0270-63
Danville, Virginia )
Adopted: November 5, 2002 Released: November 7,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of thirteen thousand dollars
($13,000) to Mitchell Communications, Inc. (``Mitchell''),
licensee of Station WDVA(AM), Danville, Virginia, for willful
and repeated violation of Section 17.4(a) of the Commission's
Rules (``Rules'') and willful violation of Section 73.49 of
the Rules.1 The noted violations involve Mitchell's failure
to register four antenna structures used as an antenna array
for WDVA(AM) and failure to enclose its antenna structures
within effective locked fences or other enclosures.
2. On June 10, 2002, the Commission's Norfolk, Virginia
Resident Agent Office (``Norfolk Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Mitchell for a
forfeiture in the amount of thirteen thousand dollars
($13,000) for the above noted violations.2 Mitchell filed a
response to the NAL on July 8, 2002.
3. On August 8, 2000, an agent from the Norfolk Office
inspected WDVA(AM) and determined that the four antenna
structures used as part of an antenna array for WDVA(AM) were
not registered. On March 20, 2001, the Norfolk Office issued
an NAL finding Mitchell apparently liable for a forfeiture in
the amount of $3,000 for failure to register the four antenna
structures in willful violation of Section 17.4(a) of the
Rules.3 The Enforcement Bureau issued a Forfeiture Order
assessing a $3,000 forfeiture against Mitchell for this
violation on July 6, 2001.4 Mitchell paid the forfeiture in
full on August 8, 2001.
4. On March 26, 2002, in response to a complaint, an agent
from the Norfolk Office inspected WDVA(AM). The agent
determined that the four antenna structures used as part of
antenna array for WDVA(AM) were still not registered with the
Commission. The agent also observed that the fences
surrounding the four antenna structures were all unlocked.
Mitchell's president, C. G. Hairston, told the agent that he
had hired someone to register the towers, but provided no
explanation as to why the fences were unlocked. On May 3,
2002, the agent searched the Commission's antenna structure
registration database and determined that Mitchell's antenna
structures were still not registered.
5. On June 10, 2002, the Norfolk Office issued an NAL for
a $13,000 forfeiture to Mitchell for failure to register its
antenna structures in willful and repeated violation of
Section 17.4(a) of the Rules and failure to enclose its
antenna structures within an effective locked fence in willful
violation of Section 73.49 of the Rules. The Norfolk Office
noted that the base forfeiture amount for failure to register
an antenna structure is $3,000 but adjusted the base amount
for this violation upward to $6,000 because Mitchell's failure
to register these antenna structures was a repeated violation.
On July 8, 2002, Mitchell filed a response to the NAL in which
it seeks cancellation of the forfeiture. Although Mitchell
acknowledges that the towers are not registered, it asserts
that its failure to register the towers was not intentional or
willful. Mitchell asserts that it only recently learned that
registration of the structures was required, that it hired an
expert to prepare and submit applications for antenna
structure registration to the FCC, and that the forms were
submitted to the FCC on or about May 11, 2001. However, the
FCC returned these forms to Mitchell because Mitchell had not
filed the appropriate notification to the Federal Aviation
Administration (``FAA'') and received a ``no hazard''
determination. Mitchell states that it then engaged an FAA
expert who submitted the appropriate documents to the FAA, but
the FAA has not yet issued an aeronautical study number. With
respect to the fencing violation, Mitchell admits that the
fences were not locked on the date of inspection. However, it
asserts that it truly believed that there were locks on the
gates, that there is no evidence that the fences were unlocked
on any other day, and that locks were installed on the date of
inspection and have been in place since that date. Therefore,
Mitchell argues that there was no willful or repeated
violation of Section 73.49.
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 Mitchell'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 other such matters as justice
7. Section 17.4(a) of the Rules provides that owners of
existing antenna structures that require notification to the
FAA register the structures with the FCC. Mitchell's four
antenna structures were more than 200 feet in height and
therefore require notification to the FAA and registration
with the FCC. Mitchell admits that the towers are not
registered. Accordingly, we find that Mitchell's failure to
register these towers is a violation of Section 17.4(a).
8. Mitchell argues that the forfeiture proposed for this
violation should be cancelled because its failure to register
the towers was not willful or intentional. Section 503(b) of
the Act gives the Commission authority to assess a forfeiture
penalty against any person if the Commission determines that
the person has ``willfully or repeatedly'' failed to comply
with the provisions of the Act or with any rule, regulation or
order issued by the Commission. The term ``willful'' as
employed in Section 503(b) of the Act does not require a
finding that the rule violation was intentional or that the
violator was aware that it was committing a rule violation.8
While Mitchell states that it only recently learned that
registration of the towers was required, we note that the
rules requiring registration of antenna structures have been
in effect since 1996 and that the Commission has repeatedly
advised antenna structure owners that all existing antenna
structures subject to our rules must be registered immediately
or the owners face a monetary forfeiture or other enforcement
action.9 Licensees are expected to know and comply with the
Commission's rules.10 Furthermore, as noted above, Mitchell
was previously assessed a forfeiture for failure to register
its towers. Mitchell also claims that it filed the
appropriate documents with the FAA, but the FAA has not yet
issued an aeronautical study number. However, Mitchell did
not provide any documentation to support this claim.
Moreover, Enforcement Bureau staff contacted the FAA's Eastern
Regional Office to confirm whether Mitchell filed the required
notification to the FAA and the FAA was unable to find any
record of a filing by Mitchell for the four towers at issue.
Accordingly, we conclude that Mitchell's failure to register
the towers was a willful violation within the meaning of
Section 503(b). As explained in the NAL, the violation is
also repeated because the Commission previously assessed
forfeiture against Mitchell for its failure to register these
towers; the violation continued through at least May 3, 2002.
9. Section 73.49 of the Rules provides that antenna towers
having radio frequency potential at the base must be enclosed
within effective locked fences or other enclosures. Mitchell
does not dispute that at the time of the inspection, the
fences surrounding all four of its towers were not locked.
Accordingly, we find that Mitchell violated Section 73.49 of
the Rules by failing to enclose its four antenna towers within
effective locked fences. We disagree with Mitchell's
assertion that this violation was not willful. Although
Mitchell states that it truly believed that there were locks
on the fences, it offers no explanation why there were no
locks on the fences at the time of the inspection, nor does it
provide evidence or even assert that it periodically inspected
the fences to ensure that they were locked. Thus, we conclude
that Mitchell's violation of Section 73.49 was willful.11
Finally, while Mitchell submits that it installed locks on the
fences on the date of the inspection and that these locks have
been in place since that date, the Commission has repeatedly
stated that remedial actions taken to correct a violation are
not mitigating factors warranting reduction of a forfeiture.12
10. We have examined Mitchell'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 Mitchell willfully and repeatedly violated
Section 17.4(a) of the Rules and willfully violated Section
73.49 of the Rules, and we find no basis for canceling or
reducing the $13,000 forfeiture proposed for these violations.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,13 Mitchell Communications, Inc. IS LIABLE FOR A
MONETARY 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
12. 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.14 Payment may 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 reference NAL/Acct. No. 200232640003 and FRN
0007-0270-63. 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.
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class and certified mail return receipt
requested, to C. G. Hairston, President, Mitchell
Communications, Inc., 130 Lexington Avenue, Danville, Virginia
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 17.4(a) and 73.49.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232640003 (Enf. Bur., Norfolk Office, released June 10, 2002).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
20013264003 (Enf. Bur., Norfolk Office, released March 20, 2001).
4 Mitchell Communications, Inc., 16 FCC Rcd 13186 (Enf. Bur.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991);
see also Nan Tan Computer Co., 9 FCC Rcd 3092 (1994) (``[f]or a
violation to be willful, it is not required that the violator
also intend to violate a requirement of the Commission or be
aware that it is committing a violation'').
9 Antenna structure owners were required to register existing
antenna structures during a two-year filing period between July
1, 1996 and June 30, 1998. Streamlining the Commission's Antenna
Structure Clearance Procedure and Revision of Part 17 of the
Commission's Rules Concerning Construction, Marking and Lighting
of Antenna Structures, 11 FCC Rcd 4272, 4281 (1995). Subsequent
to the expiration of the filing period, the Commission staff
issued a Public Notice warning antenna structure owners to
register any unregistered antenna structures subject to our
requirements immediately or face possible monetary forfeitures or
other enforcement action. Public Notice, ``No?Tolerance Policy
Adopted for Unregistered Antenna Structures,'' 1999 WL 10060 (WTB
rel. January 13, 1999).
10 Sitka Broadcasting Company, Inc., 70 FCC 2d 2375, 2378
(1979), citing Lowndes County Broadcasting Company, 23 FCC 2d 91
(1970) and Emporium Broadcasting Company, 23 FCC 2d 868 (1970).
11 Because the NAL did not find that Mitchell violated Section
73.49 repeatedly, we need not address Mitchell's claim that its
violation of Section 73.49 was not repeated.
12 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.