**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)       | *  | FRN: 0006-3776-00            |
|                                  | *) |                              |
| Murfreesboro, Tennessee          | ** |                              |
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|                                  | *) |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: June 17, 2004 Released: June 21, 2004**

By the Chief, Enforcement Bureau:

# 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
    Order*[^1] 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).

# 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.

# 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).

# ordering clauses

19. Accordingly, **IT IS ORDERED** that, pursuant to Section 405 of the
    Act[^21] 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

[^1]: *Radio 810 Nashville, Inc*., 18 FCC Rcd 5464 (Enf. Bur. 2003)
    ("*Forfeiture Order*").

[^2]: 47 C.F.R. § 73.1215(a), 73.1350(d)(2), 73.1745(a).

[^3]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200232480004 (Enf. Bur., Atlanta Field Office, released June 18,
    2002) ("*NAL*").

[^4]: WMGC's station authorization requires that the station's
    transmission power be reduced from 5000 watts to 6 watts after
    sunset each day.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: The 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).

[^9]: Application 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.

[^10]: For a general discussion of the manner in which the Commission
    views *pro forma* assignments of license and transfers of control,
    s*ee, 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).

[^11]: *NAL*, ¶ 2.

[^12]: 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 ...." *Southern California Broadcasting Co.*, 6 FCC Rcd
    4387 (1991).

[^13]: 47 U.S.C. § 503(b)(1)(B).

[^14]: 47 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.

[^16]: *Hale Broadcasting Corporation*, 79 FCC 2d 169 (1980) at ¶ 7.

[^17]: 47 C.F.R. § 73.1350(d).

[^18]: Section 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.

[^19]: *AT&T Wireless Services, Inc.*, 17 FCC Rcd 21866, 21871 (2002);
    *Seawest Yacht Brokers*, 9 FCC Rcd 6099 (1994).

[^20]: *NAL* at page 3.

[^21]: 47 U.S.C. § 405.

[^22]: 47 C.F.R. § 1.106.

[^23]: 47 U.S.C. § 504(a).

[^24]: *See* 47 C.F.R. § 1.1914.