**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

NRS Enterprises, Inc. ) File No. EB-02-AT-329

Owner of unregistered Antenna Structure located at )

35° 20' 36'' North Latitude by 86° 12' 00" West ) NAL/Acct. No.
200332480004

Longitude in Tullahoma, Tennessee )

) FRN 0000-0394-46

## FORFEITURE ORDER 

**Adopted: March 25, 2004 Released: March 29, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of three thousand dollars (\$3,000) to NRS
    Enterprises, Inc. ("NRS"), licensee of AM broadcast station WJIG,
    Tullahoma, Tennessee, for willful and repeated violations of Section
    17.4 (a) of the Commission's Rules ("Rules").[^1] The noted
    violation involves NRS's failure to register its antenna structure.

2.  On November 5, 2002, the Commission's Atlanta, Georgia, Field Office
    ("Atlanta Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to NRS for a forfeiture in the amount of three
    thousand dollars (\$3,000).[^2] NRS filed its response to the *NAL*
    on December 5, 2002.

####  II. BACKGROUND

3.  On April 7, 1999, an agent from the Atlanta Office inspected WJIG's
    antenna structure, which NRS owns. The agent determined by checking
    the Commission's Antenna Structure Registration ("ASR") data base
    that the tower was unregistered. On April 9, 1999, the Atlanta
    office issued a Notice of Violation ("*NOV*") to NRS for having an
    unregistered tower. In response to the *NOV*, NRS stated that it had
    submitted an antenna structure registration form and would display
    the registration number near the tower.

4.  On July 29, 2002, the Atlanta Office received a report indicating
    that WJIG's antenna structure was not illuminated. An agent at the
    Atlanta Office checked the ASR data base and determined that there
    was no registered antenna structure within two miles of the location
    of WJIG's tower \-- 35° 20' 36'' North Latitude by 86° 12' 00" West
    Latitude.

5.  On August 25, 2002, an agent from the Atlanta Office again inspected
    WJIG's antenna structure. The agent found that the tower lighting
    was in operation but station personnel could not produce an antenna
    structure registration certificate. On September 27, 2002, the
    Atlanta Office received by facsimile a copy of the registration form
    which NRS said it sent to the FCC in April 1999.

6.  On November 5, 2002, an agent at the Atlanta Office again checked
    the Commission's ASR data base and found that WJIG's tower was
    unregistered.

7.  On November 5, 2002, the Atlanta Office issued a *NAL* for a
    forfeiture in the amount of \$3,000 to NRS for willful and repeated
    violation of Section 17.4(a) of the Rules. NRS responded to the
    *NAL* on December 5, 2002, seeking cancellation or reduction of the
    proposed monetary forfeiture. NRS states that the general manager
    who submitted the response to the *NOV* in 1999 resigned during 2001
    and that NRS is unable to determine why it did not complete the
    registration of WJIG's tower but finds it "difficult to accept" that
    the failure to register WJIG's tower was willful. NRS further states
    that its current management took steps to register the tower as soon
    as it became aware of the problem and that the antenna structure is
    now registered. However, NRS does not provide a registration number.
    Finally, NRS states that it is a not for profit organization and
    that payment of the proposed forfeiture would "have a dramatic
    impact on the operation funds for the station." To support its
    financial hardship claim, NRS provides copies of its 1999, 2000 and
    2001 federal income tax returns as well as profit and loss
    statements covering a three year period.

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III. **DISCUSSION**

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8.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^3] Section 1.80 of the Rules,[^4] 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, in examining
    NRS's response, 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 may
    require.[^5]

9.  Section 17.4(a) of the Rules required the owners of existing antenna
    structures that were assigned painting or lighting requirements
    before July 1, 1996, to register those antenna structures no later
    than July 1, 1998. WJIG's tower was subject to this requirement.[^6]
    On the basis of the FCC investigation and NRS's response, we find
    that NRS violated Section 17.4(a) by failing to register its antenna
    structure. Despite NRS's claim that it registered WJIG's tower, the
    Commission's ASR data base indicates that, as of the adoption date
    of this order, WJIG's tower remains unregistered.[^7] In view of the
    continuation of the violation of Section 17.4(a) after the issuance
    of an *NOV*,[^8] we conclude that it was willful[^9] and
    repeated.[^10]

10. In support of its financial hardship claim, NRS submits copies of
    its 1999, 2000 and 2001 federal income tax returns and profit and
    loss statements covering a three year period. The Commission has
    determined that, in general, a licensee\'s gross revenues are the
    best indicator of its ability to pay a forfeiture.[^11] After
    reviewing the financial data submitted, we find that the monetary
    forfeiture amount should not be reduced on the basis of financial
    hardship. [^12]

11. We have examined NRS'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 NRS
    willfully and repeatedly violated Section 17.4 (a) of the Rules. We
    find that there is no basis for cancellation or reduction of the
    proposed monetary forfeiture.

12. Because WJIG's antenna structure remains unregistered as of the
    adoption date of this order, we will require, pursuant to Section
    308(b) of the Act,[^13] that NRS report to the Enforcement Bureau
    within thirty (30) days of the release of this *Order* whether it
    has achieved compliance with Section 17.4(a) of the Rules. If the
    report indicates that NRS has registered WJIG's antenna structure,
    NRS must provide the registration number. NRS's report must be
    submitted in the form of an affidavit signed by an officer or
    director of the licensee. If NRS fails to submit such a report or we
    find that NRS has not come into compliance with Section 17.4(a), we
    will consider further appropriate enforcement action.

    **IV. ORDERING CLAUSES**

13. 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,[^14]
    NRS **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of three
    thousand dollars (\$3,000) for willful and repeated violation of
    Section 17.4(a) of the Rules.

14. **IT IS ALSO ORDERED** that, pursuant Section 308(b) of the Act, NRS
    must submit the report described in Paragraph 12, above, within 30
    days from the release of this *Order*, to: Federal Communications
    Commission, Enforcement Bureau, Spectrum Enforcement Division, 445
    12th Street, S.W., Room 7-A 820, Washington, D.C. 20554, Attention:
    Thomas D. Fitz-Gibbon.

15. 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.[^15] 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. 200332480004 and FRN
    0000-0394-46. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^16]

16. **IT IS FURTHER ORDERED** that copies of this *Order* shall be sent
    by Certified Mail Return Receipt Requested and by First Class Mail
    to NRS Enterprises, Inc., 607 E. Carroll Street, Tullahoma,
    Tennessee 37388.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 17.4 (a).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332480004 (Enf. Bur., Atlanta Office, released November 5, 2002).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: The Commission's TOWPUB tower data base indicates that WJIG's
    tower was assigned painting or lighting requirements before July 1,
    1996.

[^7]: Even had NRS taken remedial measures to correct the registration
    violation, no mitigation would be warranted on that basis. The
    Commission stated in *Seawest Yacht Brokers*, 9 FCC Rcd 6099, 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." *See also Callais
    Cablevision, Inc.,* 17 FCC Rcd 22626, 22629 (2002); *Radio Station
    KGVL, Inc.,* 42 FCC 2d 258, 259 (1973); and *Executive Broadcasting
    Corp*., 3 FCC 2d 699, 700 (1966).

[^8]: Although NRS no longer employs the general manager who was in
    charge at the time of the issuance of the *NOV*, NRS is responsible
    for his actions. "\[T\]he 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.

[^9]: Section 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
    ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^10]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The *Conference
    Report* for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^11]: *See PJB Communications of Virginia, Inc.,* 7 FCC Rcd 2088, 2089
    (1992).

[^12]: *Id.* at 2089 (forfeiture not deemed excessive where it
    represented approximately 2.02 percent of the violator's gross
    revenues); *Hoosier Broadcasting Corporation*, 15 FCC Rcd 8640, 8641
    (Enf. Bur. 2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    revenues); *Afton Communications Corp.*, 7 FCC Rcd 6741 (Com. Car.
    Bur. 1992) (forfeiture not deemed excessive where it represented
    approximately 3.9 percent of the violator's gross revenues).

[^13]: 47 U.S.C. § 308(b)

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^15]: 47 U.S.C. § 504(a).

[^16]: *See* 47 C.F.R. § 1.1914.