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

In the Matter of                )
                                )
Petracom of Joplin, L.L.C.      )       File  No.  EB-02-KC-
782
Licensee of Station KCAR-FM     )       NAL/Acct.        No. 
200332560006
Lutz, FL  33548                 )       FRN 0005-0098-40
                                )

                      FORFEITURE ORDER

Adopted:  April 2, 2004                      Released:  
April 6, 2004 

By the Chief, Enforcement Bureau:

                         I.  INTRODUCTION

     1.   In this  Forfeiture Order (``Order''), we  issue a 
monetary forfeiture  in the  amount of three  thousand, five 
hundred  dollars  ($3,500)  to Petracom  of  Joplin,  L.L.C. 
(``Petracom''), licensee of station KCAR-FM, Galena, Kansas, 
for   willful   and    repeated   violations   of   Sections 
11.61(a)(2)(i)(A)  and  73.3526(a)(2)  of  the  Commission's 
Rules   (``Rules'').1    The   noted   violations   involve, 
respectively, Petracom's failure to conduct weekly Emergency 
Alert    System    (``EAS'')    tests   and    to    include 
``issues/programs'' lists in the station's public file.

     2.   On  December  12,  2002, the  Commission's  Kansas 
City, Missouri Field Office  (``Kansas City Office'') issued 
a Notice of Apparent Liability for Forfeiture (``NAL'') 2 in 
the amount of three thousand, five hundred dollars ($3,500).  
Petracom filed a response to the NAL on January, 10, 2003.

                         II.  BACKGROUND

     3.   On November  7, 2002, a Commission  agent from the 
Kansas City Office inspected the EAS installation and public 
file for radio station KCAR-FM.  The operator on duty at the 
time of  the inspection could  not send an EAS  test without 
instruction  from   the  station's  engineer.    After  such 
instruction  and a  successful EAS  transmission, the  agent 
inspected the EAS log.  The agent found that the most recent 
log  entry of  an EAS  test was  dated July  22, 2002.   The 
station manager admitted  to the agent that  the station had 
not conducted  EAS tests  since that  date.  The  agent also 
found   that  the   station's  public   file  contained   no 
``issues/programs''  lists.  The  station  manager told  the 
agent  that the  station had  no ``issues/programs''  lists, 
though Petracom had owned KCAR-FM for over two years.  Based 
on the  violations noted  during the inspection,  the Kansas 
City Office issued Petracom an  NAL for the noted violations 
on  December  12,  2002.   On  January  10,  2003,  Petracom 
submitted a response to  the NAL, requesting cancellation of 
the forfeiture  claiming that  the violations  resulted from 
employee error.   Petracom also seeks cancellation  based on 
remedial measures taken, an inability  to pay, and a history 
of overall compliance.   

                      III.  DISCUSSION

     4.    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    (``Policy 
Statement'').5  In  examining Petracom'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.6    

     5.                                       Section 
11.61(a)(2)(i)(A) of the Rules requires  each AM, FM, and TV 
station  to conduct  tests  of  the EAS  Header  and End  of 
Message Codes at least once a week at random days and times.  
KCAR-FM's  EAS   log  showed,  and  the   station  manager's 
admission  confirmed, that  KCAR-FM  failed  to conduct  the 
required weekly EAS tests from  July 22, 2002 to November 7, 
2002.  The field agent's test of the EAS equipment showed it 
to  be fully  operational.  Petracom,  therefore, willfully7 
and  repeatedly8  failed  to   conduct  the  required  tests 
pursuant to 11.61(a)(2)(i)(A) of the Rules.    

     6.   Section 73.3526(a)(2)  of the Rules  requires each 
commercial AM  and FM radio  station to comply  with Section 
73.3526(e)(12),  which  in  turn requires  each  station  to 
include in its public inspection file, every three months, a 
list  of  programs that  have  provided  the station's  most 
significant  treatment   of  community  issues   during  the 
preceding three-month period.  This ``issues/programs'' list 
is required to  be filed in the  station's public inspection 
file by  the tenth day  of the succeeding  calendar quarter, 
and  the list  should be  retained in  the station's  public 
inspection file  until the Commission takes  final action on 
the  station's   next  license  renewal   application.   The 
Commission's field agent  found no ``issues/programs'' lists 
in KCAR-FM's  public inspection  file.  The  station manager 
told the field agent  that there were no ``issues/programs'' 
lists, even  though Petracom  had owned  the station  for at 
least  two   years.   Petracom,  therefore,   willfully  and 
repeatedly violated Section 73.3526(a)(2) by not maintaining 
``issues/programs''  lists  in KCAR-FM's  public  inspection 
file.     

     7.   In its response to the NAL, Petracom asserts that, 
because the  KCAR-FM station manager regularly  certified to 
Petracom  that  the  station  was  in  compliance  with  all 
Commission  rules, Petracom  exercised  proper diligence  in 
monitoring  its station  and  the  Commission should  cancel 
Petracom's forfeiture.  Such monitoring of and certification 
by   employees  does   not  warrant   cancellation  of   the 
forfeiture.  ``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.''9   

     8.   Petracom  states   in  its  response   that,  upon 
receiving the  NAL, Petracom  terminated the  former KCAR-FM 
station  manager,  implemented   new  procedures  to  ensure 
compliance  with Commission  rules, and  corrected KCAR-FM's 
violations.  While  commendable, these measures also  do not 
warrant cancellation  of the forfeiture.  As  the Commission 
stated in  Seawest Yacht Brokers, ``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.''10
 
     9.   Also in its NAL response, Petracom cites financial 
hardship as  a reason why  the Commission should  cancel the 
forfeiture.    Petracom  submits  copies  of  its  financial 
statements for fiscal years 2000  and 2001 in support of its 
claim of inability to  pay the proposed forfeiture amount.11  
Though  prepared  in   accordance  with  Generally  Accepted 
Accounting Practices (``GAAP''), the balance sheets Petracom 
provides do  not give an  accurate picture of  the company's 
finances, because  the balance  sheets do not  include gross 
receipts.12   Even  if  Petracom   had  provided  its  gross 
receipts, that would not necessarily be sufficient for us to 
evaluate  Petracom's ability  to  pay  the forfeiture.   The 
entity  before us  in  this proceeding  is  a subsidiary  of 
Petracom  Media,   L.L.C,  which  owns   three  broadcasting 
companies.    We  must   look   to  the   totality  of   the 
circumstances  surrounding  Petracom's  ability to  pay  the 
forfeiture.  The 
parent company's  ability to pay, therefore,  is relevant in 
evaluating  the  subsidiary  company's ability  to  pay  the 
forfeiture.13  The Commission would  need to see tax returns 
or GAAP-prepared balance sheets  showing gross receipts from 
the parent company to determine Petracom's ability to pay.14  
Because Petracom  has not  provided adequate  information to 
enable us to evaluate its financial condition, we are unable 
to cancel or reduce the forfeiture based on Petracom's claim 
of an inability to pay.15 

     10.  Petracom's  final   argument  for   canceling  the 
forfeiture is its claim of  a history of overall compliance.  
We  do  not  think  that  Petracom is  entitled  to  such  a 
reduction,  however.  Though  the  Commission  has taken  no 
prior  action against  Petracom,  the  Commission has  acted 
against  one of  Petracom's  sister  companies, Petracom  of 
Texarkana, L.L.C.  On May  2, 2003, the Commission's Dallas, 
Texas Field Office  issued an NAL to  Petracom of Texarkana, 
L.L.C. as licensee of FM  Station KPGG, Dallas, Texas, for a 
violation  of Section  11.35(a) of  the Rules  (also an  EAS 
violation).16   Petracom  of  Texarkana  L.L.C.  is  also  a 
subsidiary  of  Petracom Media,  L.L.C.   When  a parent  or 
sister company has previously received notice of a violation 
from the  Commission, it is as  if the company at  issue has 
received  the notice,  and  the company  at  issue will  not 
qualify  for  a reduction  based  on  a history  of  overall 
compliance.17  We  therefore reject  Petracom's claim  for a 
reduction based on a history of overall compliance.  

     11.  We have  examined Petracom'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 Petracom willfully  and repeatedly 
violated Sections 11.61(a)(2)(i)(A) and 73.3526(a)(2) of the 
Rules  and that  cancellation or  reduction of  the proposed 
$3,500 monetary forfeiture is not warranted.

                      IV.  ORDERING CLAUSES

     12.  Accordingly,  IT  IS  ORDERED  THAT,  pursuant  to 
Section 503(b) of  the Act18, and Sections  0.111, 0.311 and 
1.80(f)(4)  of the  Rules19, Petracom  of Joplin,  L.L.C. IS 
LIABLE  FOR A  MONETARY FORFEITURE  in the  amount of  three 
thousand, five  hundred dollars  ($3,500) for  willfully and 
repeatedly   violating    Sections   11.61(a)(2)(i)(A)   and 
73.3526(a)(2) of the Rules.   For collection, the Commission 
will  file a  proof  of  claim at  the  appropriate time  in 
Petracom's bankruptcy action.20

     13.       IT  IS FURTHER  ORDERED that  a copy  of this 
Order  shall  be  sent  by  Certified  Mail  Return  Receipt 
Requested  to Petracom  of Joplin,  L.L.C. at  1527 N.  Dale 
Mabry  Hwy, Suite  105, Lutz,  FL 33548,  and to  Petracom's 
counsel, M. Scott Johnson, Gardner, Carton & Douglas, 1301 K 
St., N.W., Suite 900, East Tower, Washington D.C. 20005. 

                         FEDERAL COMMUNICATIONS COMMISSION


                         
                         David H. Solomon
                         Chief, Enforcement Bureau

_________________________

     11.   47 C.F.R.  11.61(a)(2)(i)(A) and 73.3526(a)(2).

     21.   Notice of Apparent Liability of Forfeiture, 
NAL/Acct. No.  200332560006 (Enf. Bur., Kansas City Office, 
released December 12, 2002). 

     31.   47 U.S.C.  503(b).

     41.   47 C.F.R.  1.80.

     51.   12 FCC Rcd 17087 (1997),  recon. denied, 15 FCC 
Rcd 303 (1999) [hereinafter Policy Statement] .  

     61.   47 U.S.C.  503(b)(2)(D).

     7 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  ....''  See Southern California 
     Broadcasting Co., 6 FCC Rcd 4387 (1991).   

     81.   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, supra at 4388. 

     91.   See, e.g. Eure Family Limited Partnership, 17 FCC 
Rcd 21861, 21863-64 (2002) (internal quotation marks 
omitted) and cases cited therein.

     101.       See 9 FCC Rcd 6099 (1994).  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).

     111.       See Policy Statement, supra note 5 at 17158 
(stating that the ``Commission has the flexibility to 
consider any documentation [e.g., balance sheets, 
profit/loss statement certified by the licensee] that it 
considers probative, objective evidence of the violator's 
inability to pay a forfeiture'') (brackets were parentheses 
in original).  

     121.       See PJB Communications of Virginia, Inc., 7 
FCC Rcd 2088, 2089 (1992) (finding gross receipts a ``very 
useful yardstick in helping to analyze a company's financial 
condition for forfeiture purposes'').  See also In re Alpine 
Broadcasting, Station KKIT, 17 FCC Rcd. 18242, 18244 (Enf. 
Bur. 2002) (stating, ``the best indication of a company's 
ability to pay a forfeiture amount is its gross receipts'').  

     131.       See In the Matter of KASA Radio Hogar, Inc., 
17 FCC Rcd 6256, 6258-59 (2002) (finding no reduced 
forfeiture despite a claim of inability to pay, because the 
licensee was a subsidiary of a company with the financial 
means to pay the forfeiture).  

     141.       See id. at 6257. 

     151.       The FCC has received notice that Petracom 
has filed for Chapter 11 bankruptcy.   However, the filing 
for bankruptcy does not necessarily preclude the imposition 
of a forfeiture.  See 11 U.S.C.  362(b); see also United 
States v. Commonwealth Companies, Inc., 913 F.2d 518, 522-26 
(8th Cir. 1990) (excepting from bankruptcy imposed stays, 
suits by government to obtain monetary judgment for past 
violations of the law); Coleman Enterprises, Inc., 15 FCC 
Rcd 24385, 24389 notes 27-28 (2000), recon. denied, 16 FCC 
Rcd 10016 (2001) (noting that a bankruptcy filing does not 
preclude the Commission from assessing forfeitures for 
violations of the Act and Rules).  Moreover, the filing for 
bankruptcy does not necessarily justify an adjustment or 
cancellation of the forfeiture amount for a violation of the 
Rules.  See Adelphi Communications, 18 FCC Rcd 7652, 7654  
8 (Enf. Bur. 2003) (finding that a Chapter 11 bankruptcy 
filing -- alone, without financial documentation -- does not 
support an inability to pay claim and thus does not provide 
a basis to adjust or cancel an assessed forfeiture); see 
also North American Broadcasting Co., Inc., 19 FCC Rcd 2754 
 6 (Enf. Bur. 2004); Pinnacle Towers, Inc., 18 FCC Rcd 
16365, 16366-67  7 (Enf. Bur. 2003); Friendship Cable of 
Texas, Inc., 17 FCC Rcd 8571, 8572-73  9 (Enf. Bur. 2002). 

     161.       See Notice of Apparent Liability of 
Forfeiture, NAL/Acct. No. 200333500006 (Enf. Bur., Dallas, 
Texas Office, released May 2, 2003). 

     171.         See In re Mega Communications of St. 
Petersburg, Licensee, L.L.C. 16 FCC Rcd 15948, 15949 (Enf. 
Bur. 2001) (denying a subsidiary's claim of history of 
overall compliance because the Commission had issued eight 
NOVs to parent and sister companies).  See also In the 
Matter of Rio Grande Transmission, Inc. 16 FCC Rcd 17040, 
17042-43 (Enf. Bur. 2001) (imposing a forfeiture against a 
subsidiary $13,000 for a tower-related violation and 
rejecting the subsidiary's claim of history of overall 
compliance because the Commission had previously issued six 
prior NOVs against the parent company for tower-related 
violations).  

     181.       47 U.S.C.  503(b).

     191.       47 C.F.R.  0.111, 0.311, 1.80(f)(4).

     201.       See Coleman Enterprises, Inc., supra at 
24390.  See also Commonwealth, supra at 523 note 15.