Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

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.

*****************************************************************



                         Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                 )
                                 )
Fayette County Broadcasting      )  File Number EB-02-AT-
315                              
Former Licensee of Station WSTN(AM) )   NAL/Acct. No. 
200332480003
Somerville, Tennessee            )  FRN:  0005-0323-70
                                 )
                                 )

                MEMORANDUM OPINION AND ORDER 

Adopted: May 17, 2004                        Released:   May 
19, 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 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.
                     II.      BACKGROUND

      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. 
                          III.  DISCUSSION

      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 
        or violations.''10
      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 
        11.35(a).14  
                          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 
        CANCELLED.
      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, 
        Arkansas 73290. 
                         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 
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. 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, 
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 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).