United States v. Rust Communications Group, Inc., Civ. A. No. 75-0624-R.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Citation: 425 F. Supp. 1029
• Decision Date: 15 November 1976
• Parties: UNITED STATES of America, Plaintiff, v. RUST COMMUNICATIONS GROUP, INC., Licensee of Radio Station WRNL, Richmond, Virginia, Defendant.
• Docket Number: Civ. A. No. 75-0624-R.

425 F. Supp. 1029

UNITED STATES of America, Plaintiff,
v.
RUST COMMUNICATIONS GROUP, INC., Licensee of Radio Station WRNL, Richmond, Virginia, Defendant.

Civ. A. No. 75-0624-R.

United States District Court, E. D. Virginia, Richmond Division.

November 15, 1976.

425 F. Supp. 1030

David A. Schneider, Asst. U.S. Atty., Dept. of Justice, Richmond, Va., for plaintiff.

Stanley S. Neustadt, Cohn & Marks, Washington, D. C., A. C. Epps, Christian, Barton, Epps, Brent & Chappell, Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, the United States of America, brings this action pursuant to 47 U.S.C. §§ 503-04, to recover a forfeiture assessed by the Federal Communications Commission (Commission). The defendant, Rust Communications Group, Inc., is the owner and operator of radio station WRNL, Richmond, Virginia. Jurisdiction over this matter is attained pursuant to 28 U.S.C. §§ 1345, 1355. The matter comes before the Court on a trial de novo on the issue of liability. The Court has taken evidence, considered arguments of counsel, and renders its findings of fact and conclusions of law as follows:

The Commission is the agency of the United States charged with the duty of enforcing and executing provisions of the Communications Act of 1934, 47 U.S.C. § 151 et seq. The defendant, as licensee of a broadcast station, is subject to the rules and regulations promulgated by the Commission. After appropriate proceedings, the Commission on April 9, 1974 concluded that Rust had repeatedly violated § 73.52(a) of the Commission's rules and regulations on antenna input power. 47 C.F.R. § 73.52(a).¹ See generally Niagara Frontier Broadcasting Corp., ___ F.C.C.2d ___, 36 R.R.2d 1584 (1976); Paul A. Stewart, 45 F.C.C. 773 (1963). The Commission has assessed forfeiture liability of $1,000 against the defendant under 47 U.S.C.

425 F. Supp. 1031

§ 503(b)(1)(B).² A subsequent appeal to the Commission for a remission was denied. The defendant, electing to have the matter heard de novo in this Court, has refused to pay the assessment, asserting that it is "unwarranted and illegal." 47 U.S.C. § 504(a)

The Commission found that on seven occasions in 1972, WRNL had operated with excess power. The station is licensed by the Commission to operate on the frequency of 910 kHz. with a power of five thousand watts. Section 73.52(a) of the Commission's Rules and Regulations provides in part: "The actual antenna input power of each station shall be maintained as near as practicable to the authorized antenna input power and shall not be less than 90% nor greater than 105% of the authorized power . . ." Since station WRNL has an authorized antenna input power of 5,000 watts the section would permit power increases to the level of up to 5,250 watts. The Commission's method of determining the power at which the defendant allegedly operated on the seven days in question was the so-called "direct" method specified in Section 73.14(g) of the Commission's Rules:

(g) Antenna power. "Antenna input power" or "antenna power" means the product of the square of the antenna current and the antenna resistance at the point where the current is measured.

47 C.F.R. § 73.14(g). The "antenna resistance" is an assumed constant figure, calculated in this case to be 49.95 ohms. For directional antennas (station WRNL was operating in a directional mode at the time of the alleged violations),³ the term "antenna current" refers to the antenna current at the common point, or the "common point current." The value of the "common point current" is taken from readings taken at one half hour intervals from a "common point R.F. ammeter" (common point meter) at the station and entered in the station's logs.⁴ The operating logs for the days in question were entered in evidence; there is no allegation that the readings were negligently or improperly made.

The Commission found that the defendant was operating at "excessive power" whenever the log reflected a meter reading of greater than 10.25 ampers, the square root of the highest permissible antenna power (5,250 watts) divided by the antenna resistance (49.95 ohms.)⁵ The Commission

425 F. Supp. 1032

implicitly assumed that the log entries for the common point meter were conclusive evidence of the actual value of the common point current amperage at any one time. Expert testimony introduced at trial, however, indicates that the meter has a significant margin of error or zone of accuracy. The evidence satisfies the Court that within a specified percentage of the meter reading, the instrument is not a meaningful indicator of value gradients. Indeed, the Commission's rules specify error ranges that are permissible for the various meter instruments that are employed to read the common point current amperage. See 47 C.F.R. §§ 73.39, 73.67. Calculations from these sections indicate that station WRNL's primary meter located at the station's transmitter has a permissible error range of 3%, and that the station's remote meter located in the control room to relay readings from the...