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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-DT-988
Floyd County Broadcasting Company, Inc. )
WMDJ-FM ) NAL/Acct. No.
Martin, Kentucky )
) FRN: 0005-0045-51
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 6, 2002
By the District Director, Detroit Office, Enforcement Bureau:
· 1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Floyd County Broadcasting Company, Inc. (``Floyd
County Broadcasting''), the licensee of WMDJ-FM, has
apparently violated Section 11.35(a) of the Commission's Rules
(``Rules'')1 by failing to have Emergency Alert System (EAS)
equipment installed and operating. We conclude that Floyd
County Broadcasting is apparently liable for a forfeiture in
the amount of eight thousand dollars ($8,000).
2. On July 30, 2002, an FCC agent from the Detroit Office
conducted an Emergency Alert System inspection of WMDJ-
FM. At the time of inspection, he found no EAS
equipment installed. The station manager told him that
WMDJ-FM had never installed any EAS generating and
receiving equipment at the station.
3. Section 11.35(a) of the Rules requires all broadcast
stations to ensure that EAS generating and receiving
equipment is installed so that the monitoring and
transmitting functions are available during the times
the station is in operation. At the time of
inspection, Floyd County Broadcasting failed to have
Emergency Alert System equipment installed and
4. Based on the evidence before us, we find that Floyd
County Broadcasting willfully2 and repeatedly3 violated
Section 11.35(a) by failing to install and maintain
operational EAS equipment. The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC
Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd
303(1999) (``Forfeiture Policy Statement'')4, sets the
base forfeiture amount at $8,000 for EAS equipment not
installed or operational. In assessing the monetary
forfeiture amount, we must take into account the
statutory factors set forth in Section 503(b)(2)(D) of
the Communications Act of 1934, as amended, (the
``Act''),5 which include 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. The record reveals
that Floyd County Broadcasting has previously had an
overall history of compliance and showed good faith
surrounding the violations by the voluntary disclosure
of information; however, the violation is egregious.
Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the
inflation adjustments, we believe that an eight
thousand dollar ($8,000) monetary forfeiture is
IV. Ordering Clauses
5. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6 and Sections 0.111, 0.311 and 1.80
of the Rules7, Floyd County Broadcasting Company, Inc.
is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars
($8,000) for willfully violating Section 11.35(a) of
the Rules by failing to install and have operational
6. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of
this NOTICE OF APPARENT LIABILITY, Floyd County
Broadcasting SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
7. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of
the Federal Communications Commission, to the
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332360001, FRN: 0005-0045-51.
8. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau,
Technical and Public Safety Division, 445 12th Street,
S.W., Washington, D.C. 20554 and MUST INCLUDE THE
NAL/Acct. No. 200332360001, FRN: 0005-00045-51.
9. The Commission 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.
Any claim of inability to pay must specifically
identify the basis for the claim by reference to the
financial documentation submitted.
10. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should
be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.8
11. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding
the size of entities involved in forfeitures. If you
qualify as a small entity and if you wish to be treated
as a small entity for tracking purposes, please so
certify to us within thirty (30) days of this NAL,
either in your response to the NAL or in a separate
filing to be sent to the Technical & Public Safety
Division. Your certification should indicate whether
you, including your parent entity and its subsidiaries,
meet one of the definitions set forth in the list
provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be
used for tracking purposes only. Your response or
failure to respond to this question will have no effect
on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have
questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990.
12. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Floyd County Broadcasting
Company, Inc., P. O. Box 1530, 1428 Highway 80, Martin,
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
Attachment A - FCC List of Small Entities, October 2002.
47 C.F.R. § 11.35(a).
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference to
the commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.
447 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.