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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Floyd County Broadcasting Company, Inc. ) File Number EB-02-
WMDJ-FM ) NAL/Acct. No. 200332360001
Allen, Kentucky ) FRN: 0005-0045-51
Adopted: June 2, 2004 Released: June 4, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand
dollars ($8,000) to Floyd County Broadcasting Company,
Inc. (``Floyd County Broadcasting''), the licensee of
WMDJ-FM, Allen, Kentucky for willful and repeated
violation of Section 11.35(a) of the Commission's Rules
(``Rules'').1 The noted violation involves Floyd County
Broadcasting's failure to have Emergency Alert System
(``EAS'') equipment installed and operating.
2. On November 6, 2002, the Commission's Detroit, Michigan
District Office (``Detroit Office'') released a Notice
of Apparent Liability for Forfeiture (``NAL'') to Floyd
County Broadcasting in the amount of eight thousand
dollars ($8,000).2 Floyd County Broadcasting filed a
response on November 21, 2002.
3. On July 30, 2002, an FCC agent from the Detroit Office
conducted an EAS equipment 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.
4. As a result of the inspection, on November 6, 2002, the
Detroit Office issued the subject NAL to Floyd County
Broadcasting finding that it willfully and repeatedly
violated Section 11.35 of the Rules. In its response,
Floyd County Broadcasting does not challenge the
findings of the NAL, that it willfully and repeatedly
violated Section 11.35(a) of the Rules. Rather, the
licensee seeks reduction or cancellation of the
forfeiture based upon its inability to pay the
5. 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 Floyd 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
6. Section 11.35(a) of the Rules provides that broadcast
stations are responsible for ensuring that EAS Encoders,
EAS Decoders, and Attention Signal generating and
receiving equipment used as part of the EAS are
installed so that the monitoring and transmitting
functions are available during times the stations and
systems are in operation. An FCC inspection of WMDJ-FM
revealed that no EAS equipment was installed. Floyd
County Broadcasting admitted in its response to the NAL
that there was no EAS equipment at the station.7
7. Based on the findings of the NAL and Floyd County
Broadcasting's response thereto, we find that Floyd
County Broadcasting's violation of Section 11.35(a) of
the Rules was willful8 and repeated.9
8. In support of its request for cancellation or
reduction of the proposed forfeiture, Floyd County
Broadcasting submits federal income tax returns for
years 1999, 2000, and 2001.10 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 data
submitted, we find no evidence in Floyd County
Broadcasting's response that would support cancellation
of the forfeiture or a reduction based upon inability to
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act13, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules14, Floyd County
Broadcasting, IS LIABLE FOR A MONETARY FORFEITURE in the
amount of eight thousand dollars ($8,000) for its
willful and repeated violation of Section 11.35(a) of
10. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's Rules15
within 30 days of the release of this Order. If the
forfeiture is not paid within the period specified, the
case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act.16
Payment may be made by credit card through the
Commission's Credit and Debt Management Center at (202)
418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications
Commission, to the Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should note the NAL/Acct. No. 200332360001, and
FRN: 0005-0045-51 referenced above. Requests for full
payment under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th
Street, S.W., Washington, D.C. 20554.17
11. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent by Certified Mail, Return Receipt
Requested, to Floyd County Broadcasting Company, Inc.,
P.O. Box 1530, 1428 Highway 80, Martin, Kentucky 41649.
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.
200332360001 (Enf. Bur., Detroit Office, released November 6,
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
6 47 U.S.C. § 503(b)(2)(D).
7 Floyd County Broadcasting also states that it
ordered EAS equipment immediately following the inspection and
had it in place and operational the very next day. However, 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.'' See Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099
8 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).
9 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, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn 56 (2003).
10 Floyd County Broadcasting also seeks cancellation or
reduction of the proposed forfeiture because its advertising
``Rate Card'' would allegedly demonstrate that its market is so
small that cancellation or reduction would be warranted. As
stated herein a licensee's gross revenues are the best indicator
of its ability to pay a forfeiture. See footnote 11, infra. We
will therefore focus on the information provided in the
licensee's tax returns to determine its ability to pay the
11 See PJB Communications of Virginia, Inc., 7 FCC Rcd
2088, 2089 (1992).
12 Id. at 2089 (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).
13 47 U.S.C. § 503(b).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 C.F.R. § 1.80.
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.