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


In the Matter of                  )
                                 )   File Number EB-04-OR-103
Delta Radio Greenville, LLC       )
Licensee of WROX(AM)              )   NAL/Acct. No.200432620005
in Clarksdale, Mississippi        )
Las Vegas, Nevada                 )   FRN 0007689243
                                 )
                                 )


                      FORFEITURE ORDER

Adopted:             September           29,            2004                                                                                
Released:  October 1, 2004

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of twelve thousand dollars 
($12,000) to Delta Radio Greenville, LLC (``Delta''), 
licensee of radio station WROX(AM), Clarksdale, Mississippi, 
for willful and repeated violation of Sections 11.35(a) and 
73.49 of the Commission's Rules (``Rules'').1  The noted 
violations involve Delta's failure to maintain operational 
Emergency Alert System (``EAS'') equipment and failure to 
enclose its antenna structure within an effective locked 
fence or other enclosure.  

II.   BACKGROUND 

     2.   On May 12, 2004, an agent of the Commission's New 
Orleans Field Office of the Enforcement Bureau (``New 
Orleans Office'') observed the antenna structure of WROX(AM) 
and discovered that one side of the fence enclosing the 
antenna structure was lying on the ground.  The agent easily 
walked over the downed section of fence to the base of the 
antenna structure, which had radio frequency potential at 
its base.

     3.   On May 13, 2004, the agent inspected WROX(AM) and 
found that there was no EAS equipment present.  In addition, 
there was no evidence that the equipment had been removed 
from service for repair.2  The General Manager of the 
station admitted that no EAS equipment had been present at 
WROX(AM) since his arrival at the station in October 2003.  
When shown that one side of the fence enclosing WROX(AM)'s 
antenna structure was lying on the ground, he stated the 
fence had been this way for the same period of time.

     4.   On July 21, 2004, the New Orleans Office issued a 
Notice of Apparent Liability for Forfeiture to Delta in the 
amount of fifteen thousand dollars ($15,000) for the 
apparent willful and repeated failure to maintain 
operational EAS equipment and enclose its antenna structure 
within an effective locked fence as required by Sections 
11.35(a) and 73.49 of the Rules.3  In its response, Delta's 
President requests a cancellation of the forfeiture because 
he claims he was unaware of the conditions that led to the 
issuance of the NAL.  He asserts that the former station 
manager or the announcer stored the EAS equipment while the 
station relocated and failed to return the equipment.  He 
further states that the current station manager did not 
inform him that the station was missing EAS equipment.  He 
claims that Delta's Vice President inspected the fence 
surrounding the antenna on February 7, 2004 and found it 
adequate.  He claims that upon learning of the missing EAS 
equipment and damaged fence, Delta immediately purchased EAS 
equipment and scheduled a visit to inspect the fence.  He 
asserts if the fence was damaged after February 7, 2004 such 
damage was most likely the result of vandalism.  Finally, he 
argues the forfeiture should be reduced based on the 
station's long-time record of compliance with the Rules and 
the station's financial situation.          

III.        DISCUSSION

     5.   The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Act,4 
Section 1.80 of the Commission's Rules (``Rules''),5 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) (``Forfeiture Policy Statement'').  In 
examining Delta'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 other such 
matters as justice may require.6

     6.   Section 11.35(a) of the Rules requires that 
broadcast stations maintain operational EAS encoders, 
decoders, and attention signal generating and receiving 
equipment so that monitoring and transmitting functions are 
available during the times the stations are in operation.7  
On May 13, 2004, WROX(AM) had no EAS equipment and the 
General Manager of the station admitted that WROX(AM) had 
not had EAS equipment since at least October 2003.  There 
was no evidence or logs that WROX(AM) ever had installed EAS 
equipment or ever maintained operational EAS equipment, nor 
were there log entries indicating that the equipment was 
under repair.  Delta's President does not deny that the 
station did not maintain EAS equipment, but argues he was 
the ``victim of a dishonest station manager and the 
unfortunate death of a station employee.''8  However, 
``[t]he 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.''9  We find that 
Delta's violation of Section 11.35(a) of the Rules was 
willful10 and repeated.11

     7.   Section 73.49 of the Rules requires that antenna 
towers having radio frequency potential at the base must be 
enclosed within effective locked fences or other 
enclosures.12  On May 12 and 13, 2004, WROX(AM)'s antenna 
structure was not enclosed by an effective locked fence or 
enclosure.  Although the fence surrounding the antenna 
structure may have been effective on February 7, 2004, as 
alleged by Delta's President, the fence was damaged on May 
12 and 13, 2004, and the General Manager admitted that it 
had been damaged for some time.  It is irrelevant whether, 
as Delta claims, the damage may have been the result of 
vandalism.  Even if vandals caused the damage, Delta should 
have repaired the fence to ensure that it was effectively 
enclosing the antenna tower.  We find that Delta's violation 
of Section 73.49 of the Rules was willful and repeated.

     8.   Delta asserts that the forfeiture should be 
reduced based on its long-time record of compliance with the 
Rules.  After considering Delta's past history of 
compliance, we conclude that a reduction of the forfeiture 
amount to $12,000 is appropriate.13

     9.   Delta also requests a reduction of the proposed 
forfeiture based on its financial situation and its prompt 
actions to correct the problems.  As explicitly stated in 
the NAL, we will not consider reducing or canceling a 
forfeiture in response to a claim of inability to pay unless 
the petitioner submits: (1) federal tax returns for the most 
recent three-year period; (2) financial statements prepared 
according to generally accepted accounting practices 
("GAAP"); or (3) some other reliable and objective 
documentation that accurately reflects the petitioner's 
current financial status.  Delta has not provided any 
financial documentation to support a claim of inability to 
pay; therefore, we have no basis to reduce the forfeiture on 
grounds of inability to pay.14  Moreover, Delta's remedial 
actions to correct promptly violations after they have been 
identified by an agent is expected and does not warrant a 
reduction in the forfeiture amount.15       

     10.  We have examined Delta's response to the NAL 
pursuant to the statutory factors above, and in conjunction 
with the Forfeiture Policy Statement.  As a result of our 
review, we conclude that Delta willfully and repeatedly 
violated Sections 11.35(a) and 73.49 of the Rules and find 
that, although cancellation of the proposed monetary 
forfeiture is not warranted, reduction of the forfeiture 
amount to $12,000 is appropriate based on Delta's past 
history of compliance with the Rules.

IV.   ORDERING CLAUSES

     11.  Accordingly, IT IS ORDERED that, pursuant to 
Section 503(b) of the Communications Act of 1934, as 
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the 
Commission's Rules,16 Delta Radio Greenville, LLC IS LIABLE 
FOR A MONETARY FORFEITURE in the amount of twelve thousand 
dollars ($12,000) for willfully and repeatedly violating 
Sections 11.35(a) and 73.49 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.17  Payment by check or money 
order may be mailed to Forfeiture Collection Section, 
Finance Branch, Federal Communications Commission, P.O. Box 
73482, Chicago, Illinois 60673-7482.  Payment by overnight 
mail may be sent to Bank One/LB 73482, 525 West Monroe, 8th 
Floor Mailroom, Chicago, IL 60661.   Payment by wire 
transfer may be made to ABA Number 071000013, receiving bank 
Bank One, and account number 1165259.  The payment should 
note NAL/Acct. No. 200432620005, and FRN 0007689243.  
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. 20554.18 

     13.  IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class and Certified Mail Return 
Receipt Requested to Larry G. Fuss, President, Delta Radio, 
LLC, 9408 Grand Gate Street, Las Vegas, NV 89143.  



                              FEDERAL COMMUNICATIONS 
                              COMMISSION



                              George R. Dillon
                              Assistant Chief, Enforcement 
                         Bureau
               
_________________________

147 C.F.R.  11.35(a) and 73.49.

2See 47 C.F.R.  11.35(b).

3Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200432620005 (Enf. Bur., New Orleans Office, July 21, 2004) 
(``NAL''). 

447 U.S.C.  503(b).

547 C.F.R.  1.80.

647 U.S.C.  503(b)(2)(D).

747 C.F.R.  11.35(a). 

8Delta response at 2. 

9Eure Family Limited Partnership,  17 FCC Rcd 21861, 21863-
64 (2002) and cases cited therein.

10Section  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).   

11As  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).

1247 C.F.R.  73.49. 

13See South Central Communications  Corp., 17 FCC Rcd 22701 
(Enf. Bur. 2002).

14The  Commission has  determined that,  in general,  gross 
revenues are  the best  indicator of the  ability to  pay a 
forfeiture.  See  PJB Communications  of Virginia,  Inc., 7 
FCC Rcd 2088, 2089 (1992).  

15See  AT&T  Wireless Services,  Inc.,  17  FCC Rcd  21861, 
21864-75 (2002);  Sonderling Broadcasting Corp., 69  FCC 2d 
289, 291  (1978); Odino  Joseph, 18  FCC Rcd  16522, 16524, 
para.  8 (Enf.  Bur.  2003);  South Central  Communications 
Corp., 18  FCC Rcd 700,  702-03, para. 9 (Enf.  Bur. 2003); 
Northeast Utilities, 17 FCC Rcd  4115, 4117, para. 13 (Enf. 
Bur. 2002).  

1647 C.F.R.  0.111, 0.311, 1.80(f)(4).

1747 U.S.C.  504(a).

18See 47 C.F.R.  1.1914.