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

                              )
In the Matter of                        )         
                              )         
Tralyn Broadcasting, Inc.                         )    File  No.: 
EB-02-OR-242
                              )    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, 
2004

By the Chief, Enforcement Bureau:

                         I. INTRODUCTION

     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 
          overall compliance.

     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.

                         II. BACKGROUND

     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 
tax returns.

                        III.  DISCUSSION

     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 
11.61(a)(2)(i)(A).

     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 
73.3526(a).

     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 
appropriate.

                      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. 
Bur. 2002).

     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,  
2002).

     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 
therein.

     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 
(1966).

     8  See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 
2089 (1992). 

     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 
(1999).

     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.