Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Fayette County Broadcasting ) File Number EB-02-AT-
Former Licensee of Station WSTN(AM) ) NAL/Acct. No.
Somerville, Tennessee ) FRN: 0005-0323-70
MEMORANDUM OPINION AND ORDER
Adopted: May 17, 2004 Released: May
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''),
we cancel the proposed monetary forfeiture in the
amount of eight thousand dollars ($8,000) issued to
Fayette County Broadcasting Company, Inc.
(``Fayette County Broadcasting''), former licensee
of Station WSTN(AM), Somerville, Tennessee, for
failure to install operational Emergency Alert
System (``EAS'') equipment at its station in
apparent willful and repeated violation of Section
11.35(a) of the Commission's Rules (``Rules'').1
While we cancel the forfeiture for a demonstrated
inability to pay, we admonish Fayette County
Broadcasting for its willful and repeated violation
of Section 11.35(a) of the Rules.
2. On August 6, 2002, an agent from the Commission's
Atlanta Office (``Atlanta Office'') inspected
Station WSTN(AM). The agent found that EAS
equipment was installed but not connected to audio
and power sources. Station personnel could not
produce EAS logs to indicate that the required
weekly or monthly EAS test activations had been
sent or received, or that EAS equipment had been
removed from service. During a telephone interview
on September 10, 2002, the station owner said that
the equipment had been disconnected around May
2002. On October 2, 2002, the owner faxed the
Atlanta Office stating that the equipment, which
had been removed for service, had been returned to
the station in July 2002, but was not reconnected
until two days after the Commission inspection.
The owner also stated that all station personnel
had been retrained to log every EAS test.
3. On November 5, 2002, the Atlanta Office released
a Notice of Apparent Liability for Forfeiture
(``NAL'') to Fayette County Broadcasting for a
forfeiture in the amount of eight thousand dollars
($8,000) for its failure to have operational EAS
equipment installed at the station in violation of
Section 11.35(a).2 In its November 18, 2002
response, Fayette County Broadcasting does not
challenge the findings of the NAL, and admits the
EAS system had been inoperative and logs incomplete
at the time of inspection. Fayette County
Broadcasting states that the EAS equipment is now
operational and that the employees have been
trained to ensure that the EAS tests are properly
logged. Additionally, Fayette County Broadcasting
seeks reduction or cancellation of the forfeiture
based upon its prompt remedial action and its
claimed inability to pay.
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 Fayette County
Broadcasting'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 11.35(a) of the Rules provides that
broadcast stations are responsible for ensuring
that EAS equipment used as part of the EAS is
installed so that the monitoring and transmitting
functions are available during times the station
and system are in operation. From approximately
May 2002 until August 8, 2002, Fayette County
Broadcasting did not have properly operating EAS
equipment installed at the station. Fayette County
Broadcasting acknowledges that the EAS equipment
was not operational in its response. We find that
Fayette County Broadcasting's violation of Section
11.35(a) of the Rules was willful7 and repeated.8
6. In support of its request for cancellation or
reduction, Fayette County Broadcasting cites its
``immediate response to correct the infraction.''
Fayette County Broadcasting's remedial 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
7. Fayette County Broadcasting also submits federal
income tax returns for years 1999, 2000, and 2001
to demonstrate its inability to pay the monetary
forfeiture. The Commission has determined that, in
general, a licensee's gross revenues are the best
indicator of its ability to pay a forfeiture.11
After reviewing the financial documentation
submitted, we conclude that payment of the proposed
$8,000 forfeiture would impose financial hardship
on Fayette County Broadcasting. Furthermore, we
note that Fayette County Broadcasting assigned the
license for WSTN(AM) and is no longer a Commission
licensee.12 Therefore, we conclude that
cancellation of the forfeiture is warranted. 13
Nevertheless, we find that it is appropriate to
admonish Fayette County Broadcasting for its
willful and repeated violation of Section
IV. ORDERING CLAUSES
8. 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 eight thousand
dollars ($8,000) proposed in the November 5, 2002
NAL issued to Fayette County Broadcasting, IS
9. IT IS FURTHER ORDERED THAT Fayette County
Broadcasting IS ADMONISHED for failure to install
operational EAS equipment at Station WSTN(AM) in
willful and repeated violation of Section 11.35(a)
of the Rules.
10. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by Certified Mail, Return Receipt
Requested, and by First Class Mail to Fayette
County Broadcasting, 798 N. Sebastian, West Helena,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 11.35(a).
2 Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200332480003 (Enf. Bur., Atlanta Office,
released November 5, 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
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
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. 97th
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 See Seawest Yacht Brokers, 9 FCC Rcd 6099,
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 The Commission staff granted the application to
assign the license for WSTN(AM) on September 5, 2002 (File
No. BAL-20020711AP), and the assignment was consummated on
December 4, 2002.
13 See Lighthouse Broadcasting, 18 FCC Rcd 9573, 9576
(Enf. Bur. 2003).
14 Id. at 9576.
15 47 U.S.C. § 503(b).
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).