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


In the matter of                 )    File No. EB-02-OR-355
                                )
Pearson Broadcasting of Mena,    )    NAL/Acct. No. 200332620007
Inc.                             )
Licensee of KTTG(FM)             )    FRN No. 0003-7795-68
Mena, Arkansas

                        FORFEITURE  ORDER

Adopted:  July 29, 2004                 Released:  August 2, 2004

By the Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.        In this Forfeiture Order  (``Order''), we issue  a 
monetary  forfeiture in the  amount of one  thousand six  hundred 
dollars   ($1,600)  to   Pearson  Broadcasting   of  Mesa,   Inc. 
(``Pearson''), licensee of  FM Station KTTG, Mena, Arkansas,  for 
willful  and   repeated  violation  of   Section  11.61  of   the 
Commission's  Rules (``Rules'').1  The  noted violation  involves 
Pearson's  failure to receive  and transmit  required weekly  and 
monthly tests of the Emergency Alert System (``EAS'').

     2.        On February 18, 2003, the Commission's New Orleans 
District  Office (``New  Orleans  Office'') issued  a  Notice  of 
Apparent  Liability for  Forfeiture (``NAL'')  to Pearson  for  a 
forfeiture  in the  amount  of two  thousand  dollars  ($2,000).2  
Pearson filed a response to the NAL on May 12, 2003.

II.  BACKGROUND

     3.        On November 6,  2002, a New  Orleans Office  agent 
inspected  Pearson's  Station  KTTG.   The  agent  inspected  the 
printed  record  in  KTTG's EAS  unit  and  determined  that  the 
station had neither received nor transmitted required weekly  EAS 
tests (``RWT'') for the period June 23, 2002 to August 11,  2002.  
In addition,  the New Orleans agent  noted that KTTG had  neither 
received  nor transmitted  required monthly  EAS tests  (``RMT'') 
during the same time period.  The agent requested KTTG's  station 
logs for EAS  tests but the station could not produce them.   The 
station manager  stated to the New  Orleans Office agent that  he 
did  not know  the last time  that KTTG  had aired  an EAS  test.  
Neither  the  station manager  nor  anyone else  present  at  the 
station was able to run a test at the agent's request.

     4.        The KTTG EAS unit's continuous record covered only 
the  period of June  23, 2002  to August 11,  2002.  The  station 
manager stated that  he believed the EAS unit was  malfunctioning 
and  that  the  station engineer  had  been  notified.   The  New 
Orleans  Office agent found  no entries in  the station's log  to 
reflect the EAS  operations, malfunctions, or dates the unit  was 
not operational. 

     5.        On February  18,  2003,  the  New  Orleans  Office 
issued  a NAL to  Pearson for two  thousand dollars ($2,000)  for 
its failure to conduct the required RWTs and RMTs in willful  and 
repeated  violation  of  Section 11.61  of  the  Rules.   Pearson 
responds to  the NAL denying that  it willfully violated  Section 
11.61  of the  Rules.   Pearson  states that  responsibility  for 
oversight  of  EAS   compliance  was  assigned  to  the   station 
engineer,  and  that shortly  prior  to the  New  Orleans  Office 
agent's  inspection,  the  KTTG  engineer  had  been  terminated.  
Pearson avers  the station logs did exist  and were last seen  in 
the  possession  of  the  engineer.   Pearson  argues  that   its 
violation  was not conscious  and deliberate but  was due to  the 
``dereliction  of duties''  by its  contract engineer,  and  that 
Pearson  was in the  process of taking  corrective action at  the 
time  of the  New Orleans  Office inspection.   Pearson  explains 
that  it has  replaced the  engineer with  an individual  who  is 
certified  by the Commission  to conduct EAS  and other  facility 
inspections,  who  is  a  member  of  the  Arkansas  Broadcasters 
Association  and the author  of the EAS  guidelines for  Arkansas 
Broadcasters.    Finally,  Pearson  requests   relief  from   the 
forfeiture  due  to  inability to  pay,  and  provides  financial 
information in support of its request.

III.      DISCUSSION

     6.        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, 12  FCC Rcd 17087 (1997),  recon. denied, 15 FCC  Rcd 
303  (1999)  (``Policy  Statement'').   In  examining   Pearson'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.5

     7.        Section 11.61 of  the Rules requires  tests to  be 
made at regular  intervals as specified in paragraphs (a)(1)  and 
(a)(2)  of  that section.   In  particular,  Section  11.61(a)(1) 
requires  monthly  tests  of  the  EAS  header  codes,  attention 
signal, test script and End of Message (``EOM'') codes.   Section 
11.61(a)(2)  requires weekly tests  of the EAS  header codes  and 
EOM codes.   At the time of the  inspection on November 6,  2002, 
Pearson's  EAS equipment  record showed  that no  tests had  been 
conducted during the period of June 23, 2002 to August 11,  2002.   
Pearson does not  dispute that it failed to conduct tests  during 
this  time   period.   Accordingly,  we  conclude  that   Pearson 
willfully6 and repeatedly7 violated Section 11.61 of the Rules. 

     8.        Pearson argues that its violation of Section 11.61 
was not willful because it was the act of a station engineer  who 
was  terminated   prior  to  the   New  Orleans  Office   agent's 
inspection.  We  find this argument to  be without merit.   ``The 
Commission  has long  held that  licensees and  other  Commission 
regulatees are  responsible for the acts  and omissions of  their 
employees  and  independent  contractors  and  has   consistently 
refused  to  excuse licensees  from  forfeiture  penalties  where 
actions of employees or independent contractors have resulted  in 
violations.''8     We will, however,  reduce the forfeiture  from 
$2000  to  $1600  because of  Pearson's  good  faith  efforts  to 
correct  the violation prior  to the New  Orleans Office  agent's 
inspection.9

     9.        Pearson also  seeks  relief  from  the  forfeiture 
because of losses  the parent corporation and the station  itself 
sustained in three  years of operations.10  Operating losses  are 
not  a  basis for  reduction  or cancellation  of  a  forfeiture, 
however.   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 that  the proposed  forfeiture amount  should 
not be reduced or cancelled on the basis of financial hardship. 
12   

     10.       We have  examined Pearson's  response to  the  NAL 
pursuant to the statutory factors above, and in conjunction  with 
the  Policy Statement as  well.  As  a result of  our review,  we 
conclude that  Pearson willfully and repeatedly violated  Section 
11.61  of the  Rules, but  we conclude  that a  reduction of  the 
forfeiture amount is warranted.  We will reduce the two  thousand 
dollar ($2,000) monetary  forfeiture to one thousand six  hundred 
dollars ($1,600)  because Pearson acted in  good faith by  taking 
action to correct  the violation prior to the New Orleans  Office 
agent's inspection.

IV.  ORDERING CLAUSES

     11.       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,13 Pearson Broadcasting of Mena, Inc.  IS 
LIABLE FOR A  MONETARY FORFEITURE in the amount of  one  thousand 
six  hundred  dollars  ($1,600)  for  its  willful  and  repeated 
violation of  Section 11.61 of the Rules.  

     12.       Payment of  the forfeiture  shall be  made in  the 
manner provided for  in Section 1.80 of the Rules 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.14  Payment may be made 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 
reference  NAL/Acct. No. 200332620007  and FRN No.  0003-7795-68.  
Requests  for full payment  under an installment  plan should  be 
sent to: Chief,  Revenue and Receivables Group, 445 12th  Street, 
S.W., Washington, D.C. 20554.15    

     13.       IT IS FURTHER  ORDERED that a  copy of this  Order 
shall be  sent by First Class  and Certified Mail Return  Receipt 
Requested to Pearson Broadcasting of Mena, Inc., 2937 Highway  71 
North, Mena, Arkansas 71953.

                              FEDERAL COMMUNICATIONS COMMISSION
                    



                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

1 47 C.F.R.  11.61.  
2 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200332620007 (Enf. Bur.,  New Orleans Office,  rel. February  18, 
2003).    
3  47 U.S.C.  503(b).
4  47 C.F.R.  1.80.
5  47 U.S.C.  503(b)(2)(D).
6  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 ....''  Southern  California Broadcasting Co., 6  FCC 
Rcd 4387 (1991).
7 As provided by 47 U.S.C.  312(f)(2), ``[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.'' 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).  Southern California Broadcasting Co., supra.

8  Eure Family  Limited Partnership, 17  FCC Rcd 21861,  21863-64 
(2002) and cases cited therein. 
9 Radio One Licenses, Inc., 18  FCC Rcd 15964, 15965  4  (2003), 
recon. denied, 18 FCC Rcd 25481 (2003).
10  When assessing  the solvency  of a licensee  for purposes  of 
reducing a forfeiture,  the Commission examines  the finances  of 
the parent corporation, as well  as its subsidiary, to  determine 
how the forfeiture will  financially affect the entire  corporate 
position, Alpha  Broadcasting  Corporation, 102  FCC  2d 18    6 
(1984),.
11   PJB Communications of Virginia,  Inc., 7 FCC Rcd 2088,  2089 
(1992).  Our evaluation of Pearson's ability to pay  necessitates 
a review of  the revenues  of not only  the Pearson,  but of  its 
parent company, Pearson  Broadcasting Management Services,  Inc., 
as well, see American Family Association, 18 FCC Rcd 2413,  2424-
15  6 (Enf. Bur. 2003).   
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 C.F.R.  0.111, 0.311, 1.80(f)(4).
14 47 U.S.C.  504(a).
15 See 47 C.F.R.  1.1914.