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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Petracom of Texarkana, L.L.C. ) File No. EB-03-DL-062
Licensee of FM Radio Station ) NAL/Acct. No. 200332500006
KPGG ) FRN 0005009881
Adopted: April 30, 2004 Released: May 4,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of five thousand four
hundred dollars ($5,400) to Petracom of Texarkana, LLC
(``Petracom''), licensee of Station KPGG(FM), Ashdown,
Arkansas for failure to install Emergency Alert System
(``EAS'') equipment in willful and repeated violation of
Section 11.35(a) of the Commission's Rules (``Rules'').1
2. On January 30, 2003, the Commission's Dallas,
Texas Office (``Dallas Office'') conducted an on-site
inspection of Station KPGG(FM). The inspection revealed
that the station's EAS equipment had been removed for
repairs on October 16, 2003, that the equipment had not been
returned to service within sixty days of removal, and that
the station had not sought from the Dallas Office an
extension of time in which to complete the repairs.2 On May
2, 2003, the Dallas Office released a Notice of Apparent
Liability for Forfeiture, finding that Petracom apparently
willfully and repeatedly violated the EAS requirements and
assessing an $8,000 forfeiture against the company.3
3. Pursuant to an extension of time, Petracom filed a
response on June 9, 2003.4 In its response, Petracom does
not dispute the NAL findings. However, as discussed below,
Petracom seeks cancellation or reduction of the assessed
forfeiture amount based upon its remedial efforts, history
of compliance, and inability to pay.
4. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the 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.7 In examining
Petracom's response, Section 503(b) of the Act requires us
to 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.8 We will respond to each of Petracom's claims
5. First, Petracom claims, and the record reflects,
that ``prior to the FCC inspection'' it took corrective
measures by terminating the chief engineer, who was
responsible for ensuring compliance with Commission
requirements, by retaining the services of experts, who
recommended various corrective measures, and by taking steps
to implement the experts' recommendations.9 Petracom
further claims, and the record reflects, that after the
inspection, it informed the Dallas Office of its efforts to
implement the experts' recommendations and ultimately
correct all noted deficiencies.10
6. Petracom, as the licensee, is accountable for its
chief engineer's omissions and ultimately is responsible for
compliance with Commission requirements.11 Moreover, had
Petracom initiated remedial measures after the Commission's
inspection, notice or action, such measures, while
commendable, would not have been considered a mitigating
factor that would have warranted a reduction or cancellation
of the assessed forfeiture.12 However, the record
establishes that Petracom voluntarily and on its own accord
initiated corrective remedial measures prior to the
inspection by the Commission's Dallas Office. Under such
circumstances, and consistent with precedent,13 we find that
Petracom's actions present a mitigating factor and that a
reduction of the $8,000 forfeiture to $5,400 is warranted.
7. Second, Petracom claims that it ``has an excellent
history . . . regarding compliance issues'' and community
service. According to Commission records, although Station
KPGG(FM) appears to have an unblemished history of
compliance, one of its sister companies does not.
Specifically, Commission records reflect that a Forfeiture
Order was recently issued against Petracom of Joplin,
L.L.C., for violation of the EAS, as well as the public
file, requirements.14 Because Petracom's sister company has
been the subject of an enforcement action, we find that
Petracom's reliance upon past history misplaced and that
further reduction of the assessed forfeiture amount is not
8. Finally, Petracom claims that it is ``having
serious financial difficulty'' and that payment of the
forfeiture would ``have a serious impact on [its] ability to
meet payroll and other expenses.''16 As the NAL correctly
noted, we will consider adjusting or canceling a forfeiture
on the basis of an inability to pay claim only if the
petitioner submits financial documentation (i.e., ``federal
tax returns for the most recent three-year period, financial
statements prepared according to generally accepted
accounting practices, or some other reliable and objective
documentation that accurately reflects the petitioner's
current financial status'').17 Petracom offered to, but did
not, provide any financial documentation in support of its
requested adjustment or cancellation of the forfeiture,18
and thus we have no basis upon which to assess its inability
to pay claim.19
IV. ORDERING CLAUSES
9. 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,20 Petracom of Texarkana, L.L.C. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of five
thousand four hundred dollars ($5,400) for its failure to
comply with the EAS requirements, in willful and repeated
violation of Section 11.35(a) of the Rules.21 For
collection, the Commission will file a proof of claim at the
appropriate time in Petracom's bankruptcy action.22
10. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Joseph M. Fry, Vice President and Chief
Financial Officer, Petracom of Texarkana, L.L.C., 1527 N.
Dale Mabry Highway, Lutz, Florida 33548, and to M. Scott
Johnson, Esq., Gardner, Carton & Douglas, 1301 K Street,
N.W., Suite 900, East Tower, Washington, D.C. 20005.
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 11.35(a).
2 Under Sections 11.35(b) and (c) of the Rules, 47
C.F.R. §§ 11.35(b) and (c), a broadcast station is required
to have effective EAS equipment installed, but is permitted
to operate for a period of sixty days without defective
equipment pending its repair. Beyond the sixty day period,
the broadcast station is required to notify the appropriate
Field Office that additional time is needed to complete the
3 Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200332500006 (Enf. Bur., Dallas Office, May
2, 2003) (``NAL'').
4 See Letter from Joseph M. Fry, Vice President and
Chief Financial Officer, Petracom of Texarkana, LLC to
Joseph Casey, Chief, Enforcement Bureau, Technical and
Public Safety Division (June 9, 2003).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
8 47 U.S.C. § 503(b)(2)(D).
9 Response at 3.
10 Id. at 2.
11 See Eure Family Limited Partnership, 17 FCC Rcd
21861, 21864-65 ¶¶ 7-8 (2002); Sonderling Broadcasting
Corp., 69 FCC 2d 289, 291 ¶ 6 (1978); American Paging,
Inc., 12 FCC Rcd 10417, 10419 ¶ 11 (Enf. Bur. 1997); Dial-
A-Page, Inc., 10 FCC Rcd 8825, 8826 ¶ 5 (Enf. Bur. 1995).
12 See AM Broadcast Station KTNC and C.R.
Communications, Inc., DA 99-2960 ¶ 5 (Enf. Bur. 1999); see
also AT&T Wireless Services, Inc., 17 FCC Rcd 21861, 21864-
75 (2002); Sonderling Broadcasting Corp., 69 FCC 2d 289,
291 (1978); Odino Joseph, 18 FCC Rcd 16522, 16524 ¶ 8 (Enf.
Bur. 2003); South Central Communications Corp., 18 FCC Rcd
700, 702-03 ¶ 9 (Enf. Bur. 2003); Northeast Utilities, 17
FCC Rcd 4115, 4117 ¶ 13 (Enf. Bur. 2002).
13 See Rotijefco, Inc., 18 FCC Rcd 14629, 14631 ¶ 7;
see also Max Media of Montana, L.L.C., 18 FCC Rcd 21375,
21378 ¶ 11 (Enf. Bur. 2003); East Tennessee Radio Group,
L.P., DA 03-868 ¶ 7 (Enf. Bur. March 26, 2003).
14 See Petracom of Joplin, L.L.C., 19 FCC Rcd 6248
(Enf. Bur.2004) (``Petracom-Joplin'').
15 Findings of violations, or apparent violations, by
parent, sister or commonly controlled companies are imputed
to, and also negate the past history claim, of the company
under investigation. See CCN, Inc., et al., 13 FCC Rcd
13599, 13599-600 ¶ 1(1998); Petracom Joplin, supra, at ¶
10; Hill Country Real Estate Development Corp., 18 FCC Rcd
21079, 21080 ¶ 5 (Enf. Bur. 2003); Rio Grande Transmission,
Inc., 16 FCC Rcd 17040, 17042-43 ¶ 10 (Enf. Bur. 2001);
Mega Communications of St. Petersburg, Licensee, L.L.C., 16
FCC Rcd 15948, 15949 ¶ 6 (Enf. Bur. 2001).
16 Response at 3.
17 NAL at ¶ 10.
18 Specifically, Petracom offered to address its
financial difficulties ``separately on a confidential
basis, and will file with the FCC appropriate financial
material.'' Response at 3. However, under the Rules and
precedent, Petracom's request for confidentiality had to
accompany its submitted material (i.e., financial
documentation). See 47 C.F.R. § 0.457(d)(2), see also
KYOO-Communications, 16 FCC Rcd 9291, 9292 ¶ 5 (Enf. Bur.
2001); Callais Cablevision, Inc., 16 FCC Rcd 1359, 1366-67
19 Outside of the instant case, the FCC has received
notice that Petracom has filed for Chapter 11 bankruptcy.
However, it appears that the Commission has notice that
Petracom filed for bankruptcy. See Petracom Joplin, supra,
at note 15. Here, because Petracom has not relinquished
control over the station and has not submitted any
supporting financial documentation, its bankruptcy filing,
alone, neither precludes the imposition of a forfeiture, nor
justifies an adjustment or cancellation of the forfeiture
amount for a violation of the Rules. See 11 U.S.C. §
362(b); see also United States v. Commonwealth Companies,
Inc., 913 F.2d 518, 522-26 (8th Cir. 1990); Coleman
Enterprises, Inc., 15 FCC Rcd 24385, 24389 notes 27-28
(2000), recon. denied, 16 FCC Rcd 10016 (2001); Adelphi
Communications, 18 FCC Rcd 7652, 7654 ¶ 8 (Enf. Bur. 2003).
20 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
21 See 47 U.S.C. § 312(f); see also Southern
California Broadcasting Co., 6 FCC Rcd 4387, 4387-88 ¶ 5
22 See Commonwealth, 913 F.2d at 523 note 15Coleman
Enterprises, Inc., 15 FCC Rcd at 24390; see also note 19,