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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Tralyn Broadcasting, Inc. ) File No.:
) NAL/Acct. No. 200332620001
Licensee of Station WIGG(AM) in ) FRN 0005-0066-71
Wiggins, Mississippi )
Muscle Shoals, Alabama )
MEMORANDUM OPINION AND ORDER
Adopted: March 15, 2004 Released: March 17,
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order") we
grant in part and deny in part the Petition for
Reconsideration filed by Tralyn Broadcasting, Inc.
(``Tralyn''), licensee of Station WIGG(AM), Wiggins,
Mississippi. Tralyn seeks reconsideration of the
Forfeiture Order1 in which the Chief, Enforcement
Bureau (``Bureau''), found it liable for a monetary
forfeiture in the amount of $7,000 for willful and
repeated violation of Sections 11.61(a)(2)(i)(A) and
73.3526(a)(2) of the Commission's Rules (``Rules'').2
The noted violations involve Tralyn's failure to
conduct weekly tests of the Emergency Alert System and
failure to maintain all of the required items in the
station's public inspection file. We lower the
forfeiture here to $5,600 based on Tralyn's history of
2. On October 1, 2002, the District Director of the
Commission's New Orleans, Louisiana Field Office (``New Orleans
Office'') issued a Notice of Apparent Liability for Forfeiture
(``NAL'') in the amount of $7,000 to Tralyn.3 Tralyn did not
respond to the NAL. On January 30, 2003, the Bureau issued the
Forfeiture Order, which imposed a monetary forfeiture in the
amount of $7,000. Tralyn filed a request for reconsideration of
the Forfeiture Order on March 3, 2003.
3. On August 13, 2002, an agent from the New Orleans
Office inspected WIGG in Wiggins, Mississippi. During the
inspection, the agent found that there were no log entries
indicating that station personnel had conducted the required
weekly EAS tests and a station employee admitted that no weekly
EAS tests had been conducted. In addition, the agent's review of
the station's public inspection file indicated that several
required documents were missing from the file, including the
station authorization, The Public and Broadcasting manual,
letters from the public and quarterly issues/programs lists for
2001 and 2002.
4. On October 1, 2002, the New Orleans Office issued the
NAL to Tralyn in the amount of $7,000. Tralyn did not respond to
the NAL. On January 30, 2003, the Bureau issued the Forfeiture
Order, imposing a monetary forfeiture of $7,000 for willful and
repeated violation of Sections 11.61(a)(2)(i)(A) and
73.3526(a)(2) of the Rules. In its request for reconsideration,
Tralyn admits the violations but argues that they were caused by
a ``rogue'' former employee. Tralyn also argues it has a history
of overall compliance; that its violations were immediately
corrected and that payment of the proposed forfeiture would be a
financial hardship. To support its financial hardship argument,
Tralyn provides copies of its 1999, 2000 and 2001 federal income
5. Section 11.61(a)(2)(i)(A) of the Rules requires that
AM, FM and TV stations conduct tests of the EAS header and end of
message codes at least once a week at random days and times.
Tralyn admits that it did not conduct these tests. We find that
Tralyn willfully4 and repeatedly5 violated Section
6. Section 73.35226(a) of the Rules requires that every
permittee or licensee of an AM, FM, TV or Class A TV station in
the commercial broadcast services maintain a public inspection
file containing specified materials. Tralyn admits that its
public inspection file lacked many of the required documents. We
find that Tralyn willfully and repeatedly violated Section
7. Tralyn's violations cannot be excused or mitigated by
blaming them on a ``rogue'' employee. ``[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.''6
8. No mitigation is warranted on the basis of Tralyn's
correction of the violations. As the Commission stated in
Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), ``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.'' 7
9. We do, however, find that Tralyn has a history of
overall compliance and that, accordingly, the forfeiture amount
should be reduced to $5,600.
10. In support of its financial hardship claim, Tralyn
submits copies of its 1999, 2000 and 2001 federal income tax
returns. The Commission has determined that, in general, a
licensee's gross revenues are the best indicator of its ability
to pay a forfeiture.8 After reviewing the financial data
submitted, we find that the monetary forfeiture amount should not
be further reduced. 9
11. We have examined Tralyn's Petition for Reconsideration
pursuant to the statutory factors above, and in conjunction with
the Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines,10 as well. As a result of our review, we conclude
that Tralyn willfully and repeatedly violated Sections
11.61(a)(2)(i)(A) and 73.3526(a)(2) of the Rules and find that,
although cancellation of the monetary forfeiture is not
warranted, reduction of the forfeiture amount to $5,600 is
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act11 and Section 1.106 of the Rules,12 Tralyn's
petition for reconsideration of the March 3, 2003, Forfeiture
Order IS GRANTED to the extent that the monetary forfeiture
amount is REDUCED to $5,600 and IS DENIED in all other respects.
13. 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.13
Payment shall 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 note
NAL/Acct. No. 200332620001, and FRN 0005-0066-71. Requests for
full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.14
14. IT IS FURTHER ORDERED THAT a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to Tralyn Broadcasting, Inc., 522 D Mitchell
Self Memorial Drive, Muscle Shoals, Alabama 35662, and to its
counsel Frank R Jazzo, Esq., Fletcher, Heald & Hildreth P.L.C.,
Eleventh Floor, 1300 17th Street, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 AAT Communications Corporation, 18 FCC Rcd 1490 (Enf.
2 47 C.F.R. §§ 11.61(a)(2)(i)(A) and 73.3526(a)(2).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332620001 (Enf. Bur., New Orleans Office, released October 1,
4 Section 312(f)(1) of the Communications Act of 1934, as
amended, (``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).
5 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).
6 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-
64 (2002) (internal quotation marks omitted) and cases cited
7 See also Callais Cablevision, Inc., 17 FCC Rcd 22626,
22629 (2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259
(1973); and Executive Broadcasting Corp., 3 FCC 2d 699, 700
8 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
9 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).
10 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
11 47 U.S.C. § 405.
12 47 C.F.R. § 1.106.
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.