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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
Licensee of KTTG(FM) ) FRN No. 0003-7795-68
Adopted: July 29, 2004 Released: August 2, 2004
By the Chief, Enforcement Bureau:
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.
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
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.
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
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.
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
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,
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
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.