**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

MRJ, Inc. ) File Number EB-02-CF-569

WWYO ) NAL/Acct. No. 200332340002

Pineville, West Virginia ) FRN: 0005-9955-50

)

)

## 

## MEMORANDUM OPINION AND ORDER 

**Adopted: May 10, 2004 Released: May 12, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Memorandum Opinion and Order ("Order")*, we cancel the
    proposed monetary forfeiture in the amount of twenty-two thousand
    dollars (\$22,000) issued to MRJ, Inc. ("MRJ"), the licensee of
    WWYO, Pineville, West Virginia. We find that MRJ failed to conduct
    weekly EAS tests of the EAS header and EOM codes, failed to register
    its antenna structure with the Commission and failed to enclose the
    AM antenna in an effective locked fence in apparent willful and
    repeated violation of Sections 11.52(a), 17.4, and 73.49 and failed
    to allow access to the public inspection file in apparent willful
    violation of 73.3256(c) of the Commission's Rules ("Rules")[^1].
    While we cancel the forfeiture for a demonstrated inability to pay,
    we admonish MRJ for its willful and repeated violation of Sections
    11.52(a), 17.4, 73.49 of the Rules and its willful violation of
    Section 73.3526(c) of the Rules.

**II. BACKGROUND**

2.  On August 14, 2002, an agent from the Commission's Columbia,
    Maryland Office ("Columbia Office") conducted an inspection of
    Station WWYO, Pineville, West Virginia, for compliance with
    Commission Rules. Following issuance of a Notice of Violation for
    numerous Rules violations, and a Continuation of Notice of
    Violation, the licensee replied on September 30, 2002.

3.  On December 26, 2002, the Columbia Office released a *Notice of
    Apparent Liability for Forfeiture ("NAL")* to MRJ for a forfeiture
    in the amount of twenty-two thousand dollars (\$22,000) for
    violations of Sections 11.52(a), 17.4, 73.49 and 73.3526(c) of the
    Rules.[^2] MRJ filed a response on January 17, 2003. In its
    response, the licensee does not challenge the findings of the *NAL*,
    and states that they are continuing to work on and correct problems
    identified in the *NAL.* Additionally, MRJ seeks reduction or
    cancellation of the forfeiture based upon its unique role in its
    community, its commitment to continued remedial action and remedial
    actions taken so far and its claimed inability to pay.

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III. **DISCUSSION**

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4.  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.*[^5] In
    examining MRJ'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 such other matters as justice may require.[^6]

5.  Section 11.52(a) of the Rules requires that broadcast stations
    perform weekly tests of the EAS header and EOM codes. The agent
    could not find any record to indicate that the required weekly tests
    of the EAS header and EOM codes had been performed during the period
    June 18, 2002 to August 13, 2002.

6.  Section 17.4 of the Rules requires antenna structures that are over
    200 feet in height be registered with the Commission. As of the
    adoption date of this Order, MRJ has not registered the 331-foot
    antenna structure.

7.  Section 73.49 of the Rules requires that antennas that have radio
    frequency potential (voltage) at the base of the tower must be
    enclosed within an effective locked fence or other enclosure to
    protect the public. The agent found that the metal poles supporting
    the fence gate were rusted off at ground level and unable to provide
    adequate support for the gate. In addition, the top half of the gate
    had the wire mesh drawn back allowing access to the base of the
    tower, making the base of the tower a safety hazard to the public.

8.  Section 73.3526(c) of the Rules requires that the public inspection
    file be available for public inspection at any time during normal
    business hours. At the inspection, the station personnel were unable
    to produce the file.

9.  Based on the findings of the *NAL* and MRJ's response thereto, we
    find that MRJ's violations of Sections 11.52(a), 17.4, and 73.49 of
    the Rules were willful[^7] and repeated[^8] and its violation of
    Section 73.3526(c) was willful.

10. In support of its request for cancellation or reduction, MRJ cites
    its value to its "poverty stricken" community as a vital provider of
    emergency news information, a distribution point for emergency
    relief supplies and the only news station operating on the weekend
    in the area. MRJ also says that it has hired contractors to repair
    the base fencing and correct the other infractions and "work on all
    of the problems." The fact that MRJ may perform useful service in
    the community does not mitigate its violations. Similarly, MRJ's
    remedial repair action subsequent to notification of the violation
    does not warrant cancellation or reduction of the proposed
    forfeiture.[^9] It is well established that "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."[^10]

11. MRJ also submits federal income tax returns for years 2000, 2001,
    and 2002 to demonstrate its inability to pay the monetary
    forfeiture.[^11] The Commission has determined that, in general, a
    licensee\'s gross revenues are the best indicator of its ability to
    pay a forfeiture.[^12] After reviewing the financial documentation
    submitted, we conclude that payment of the proposed \$22,000
    forfeiture would impose financial hardship and we will cancel the
    proposed forfeiture. Nevertheless, we find that it is appropriate to
    admonish MRJ for its willful and repeated violation of Sections
    11.52(a), 17.4, and 73.49 of the Rules and its willful violation of
    Section 73.3526(c) of the Rules.[^13]

12. As of the adoption date of this *Order*, MRJ has not provided
    evidence that it has complied with Section 17.4 of the Rules.
    Accordingly, we will require, pursuant to Section 308(b) of the
    Act,[^14] that MRJ report to the Enforcement Bureau no more than
    thirty (30) days following the release of this *Order* whether it
    has come into compliance with Section 17.4 by registering its
    antenna structure with the Commission. MRJ's report must be
    submitted in the form of an affidavit or declaration, under penalty
    of perjury, signed by an officer or director of the licensee. MRJ
    should note that its continued noncompliance could result in
    additional enforcement action by the Enforcement Bureau.

####  IV. ORDERING CLAUSES

13. Accordingly, **IT IS ORDERED THAT**, pursuant to Section 503(b) of
    the Act[^15], and sections 0.111, 0.311 and 1.80(f)(4) of the
    Commission\'s Rules[^16], the forfeiture in the amount of twenty-two
    thousand dollars (\$22,000) proposed in the December 26, 2002 NAL
    issued to MRJ**, IS CANCELLED**.

14. **IT IS FURTHER ORDERED THAT** MRJ **IS ADMONISHED** for failure to
    conduct weekly EAS tests of the EAS header and EOM codes, failure to
    register its antenna structure with the Commission and failure to
    enclose the AM antenna in an effective locked fence in willful and
    repeated violation of Sections 11.52(a), 17.4, and 73.49 of the
    Rules and failure to allow access to the public inspection file in
    willful violation of 73.3526(c) of the Rules.

15. **IT IS FURTHER ORDERED** that, pursuant to Section 308(b) of the
    Act, MRJ must submit the report described in Paragraph 12 above, no
    more than thirty (30) days following the release of this Order, to
    the Federal Communications Commission, Spectrum Enforcement
    Division, 445 12^th^ Street, S.W., Room 4-A223, Washington, D.C.
    20554, Attention: Emmitt Carlton, Esq.

16. **IT IS FURTHER ORDERED** that a copy of this Forfeiture Order shall
    be sent by Certified Mail, Return Receipt Requested, to MRJ, Inc.,
    P.O. Box 647, Bluefield, West Virginia 24701.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ 47 C.F.R. §§ 11.52(a), 17.4, 73.49 and 73.3526(c).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332340002 (Enf. Bur., Columbia Office, released December 26,
    2002).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^6]: 47 U.S.C. § 503(b)(2)(D)

[^7]: 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).

[^8]: 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*, *id.* at 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn 56 (2003).

[^9]: *See* KGVH, Inc., 42 FCC 2d 258, 259 (1973).

[^10]: ^?^ *Seawest Yacht Brokers*, 9 FCC Rcd 6099, 6099 (1994).

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

[^12]: *See PJB Communications of Virginia, Inc. at* 2088, 2089.

[^13]: *See Faith Bible College, Inc.,* Memorandum Opinion and Order,
    File No. EB-02-TP-221, NAL/Acct. No. 200232700010.

[^14]: 47 U.S.C. § 308(b).

[^15]: 47 U.S.C. § 503(b).

[^16]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).