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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                                                        
     Jerry Russell dba The Russell                                           
     Company                                )   File Number: EB-06-DL-095    
     Licensee of Station KWRD               )   NAL/Acct. No.: 200732500002  
     Henderson, Texas                       )   FRN: 0009607078              
     Facility ID # 71519                    )                                

                          MEMORANDUM OPINION AND ORDER

   Adopted: May 15, 2007 Released: May 17, 2007

   By the Assistant Chief, Enforcement Bureau:


    1. In this Memorandum Opinion and Order ("Order"), we dismiss the
       Petition for Reconsideration filed by Jerry Russell dba The Russell
       Company, licensee of AM Broadcast Radio station KWRD, in Henderson,
       Texas. Mr. Russell seeks reconsideration of the Forfeiture Order  in
       which the Enforcement Bureau ("Bureau") found him liable for a
       monetary forfeiture in the amount of eight thousand dollars ($8,000)
       for willful and repeated violation of Section 11.35(a) of the
       Commission's Rules ("Rules"). The noted violation involves Mr.
       Russell's failure to ensure the operational readiness of station
       KWRD's Emergency Alert System ("EAS"). For the reasons provided below,
       we dismiss Mr. Russell's petition for reconsideration as untimely.


    2. On June 7, 2006, an agent from the Commission's Dallas Office of the
       Enforcement Bureau ("Dallas Office") conducted an inspection at the
       main studio of station KWRD located in Henderson, Texas. No employees
       of Mr. Russell were present at the station. On January 31, 2006, Mr.
       Russell signed a Time Brokerage and Option Agreement ("Agreement")
       with a third party ("Broker"). The Agreement allowed Broker to use the
       station's facilities to broadcast programming at the station for up to
       24 hours a day, seven days a week, but reserved two hours of
       programming each week for Mr. Russell. Broker and Broker's staff were
       present during the inspection. Broker stated that the EAS equipment
       had not been operational for "quite awhile." He further clarified that
       the EAS system had not been functional since he had been at the
       station; over three months. The agent observed that a red fault light
       was illuminated on the front panel of the EAS encoder/decoder.
       Additionally, the most recent station EAS log entry dated "6/23/05"
       simply stated "E.B.S. OK." No entries were made in the log by Mr.
       Russell or Broker staff to identify the date or cause of the EAS
       system failure, or the steps taken to remedy any failures.

    3. On November 14, 2006, the Dallas Office issued a Notice of Apparent
       Liability for Forfeiture to Mr. Russell in the amount of eight
       thousand dollars ($8,000) for the apparent willful and repeated
       violation of Section 11.35(a) of the Rules. On December 15, 2006, Mr.
       Russell submitted a timely response to the NAL requesting a reduction
       or cancellation of the proposed forfeiture. Mr. Russell argued that
       his violation was inadvertent and not willful, because the violations
       occurred unbeknownst to him. He claimed his station's EAS was
       operational before he entered into the Agreement and that Broker
       failed to notify him of the EAS status. Mr. Russell did not dispute
       that the violation was repeated.

    4. The Bureau affirmed the NAL in the Forfeiture Order, stating that
       "Russell, as the licensee, is responsible for ensuring compliance with
       the Rules, and consciously allowed its employees and Broker to operate
       its radio station. Russell cannot absolve itself of liability by
       claiming it was unaware of the actions and inactions of those
       employees and Broker." Mr. Russell filed a petition for
       reconsideration of the Forfeiture Order, which the Commission received
       on February 20, 2007.

   III. discussion

    5. Section 405 of the Communications Act of 1934, as amended ("Act")
       requires that a petition for reconsideration of a Commission action or
       an action by delegated authority must be filed no later than 30 days
       after the action that is the subject of the appeal. Once it has made
       public notice of the action pursuant to Section 1.4 of the Rules, the
       Commission loses jurisdiction to consider an appeal after 30 days have
       passed. Section 1.106 of the Rules reflects this statutory mandate.

    6. Mr. Russell did not timely file his petition for reconsideration of
       the Forfeiture Order. The Forfeiture Order was released and placed on
       public notice on January 5, 2007. The thirtieth day after January 5,
       2007 was February 4, 2007 (a Sunday). Mr. Russell's petition for
       reconsideration was therefore due on February 5, 2007. His petition
       for reconsideration was not received by the Commission until February
       20, 2007. After February 5, 2007, pursuant to the Act, the Commission
       has no jurisdiction to consider Russell's petition for
       reconsideration. Accordingly, we must dismiss Mr. Russell's petition
       for reconsideration as untimely.

    7. Assuming arguendo that Mr. Russell's petition was timely filed, we
       would nevertheless deny it. Mr. Russell's petition raises additional
       circumstances, which were not submitted in the response to the NAL,
       but these facts do not justify cancellation or reduction of the
       forfeiture. It is irrelevant whether the station's EAS was working
       prior to entering into the Agreement, because there was no evidence
       that the equipment was working between January 31, 2006 and the
       inspection on June 7, 2006. It is also irrelevant that Mr. Russell
       employed someone to monitor the station on a daily basis, who failed
       to notify him of the problems with the EAS, because 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 the Commission has "consistently refused
       to excuse licensees from forfeiture penalties where actions of
       employees or independent contractors have resulted in violations."
       Moreover, Mr. Russell's illness does not provide grounds for
       cancellation of the violation. Finally, Mr. Russell asserts that the
       forfeiture would pose a serious hardship, but he failed to include any
       documentation of the station's finances. Therefore, we are unable to
       determine whether a reduction based on inability to pay is warranted.

   IV. ordering clauses

    8. Accordingly, IT IS ORDERED that, pursuant to Section 405(b) of the
       Communications Act of 1934, as amended, and Section 1.106(f) of the
       Commission's Rules, the petition for reconsideration filed by Jerry
       Russell dba The Russell Company IS DISMISSED.

    9. Payment of the forfeiture assessed by the Forfeiture Order 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. Payment of the forfeiture must be made by check or similar
       instrument, payable to the order of the Federal Communications
       Commission. The payment must include the NAL/Acct. No. and FRN No.
       referenced above. Payment by check or money order may be mailed to
       Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
       15251-8340.  Payment by overnight mail may be sent to Mellon
       Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
       15251.   Payment by wire transfer may be made to ABA Number 043000261,
       receiving bank Mellon Bank, and account number 911-6106. Requests for
       payment of the full amount of the NAL under an installment plan should
       be sent to: Associate Managing Director - Financial Operations, 445
       12^th Street, S.W., Room 1A625, Washington, D.C. 20554.

   10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail Return Receipt Requested to Jerry Russell dba
       The Russell Company at his address of record.


   George R. Dillon

   Assistant Chief, Enforcement Bureau

   Jerry Russell dba The Russell Company, 22 FCC Rcd 48 (South Central
   Region, Enf. Bur. 2007) ("Forfeiture Order").

   47 C.F.R. S 11.35(a).

   The Emergency Broadcast System ("EBS") predates EAS.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732500002
   (Enf. Bur., Dallas Office, November 14, 2006) ("NAL").

   47 U.S.C. S 405(a).

   47 C.F.R. S 1.4.

   47 C.F.R. S 1.106(f).

   Daily Digest, Vol. 26, No. 3, January 5, 2007.

   47 C.F.R. S 1.4(j) provides that, when the calculated filing date falls on
   a "holiday," the document is due to be filed on the next business day. 47
   C.F.R. S 1.4(e)(2) defines the term "holiday" as "Saturday, Sunday,
   officially recognized Federal legal holidays and any other day on which
   the Commission's offices are closed and not reopened before 5:30 p.m."

   Mr. Russell's petition for reconsideration was dated February 10, 2007 and
   postmarked February 13, 2007. Thus, it was written and mailed after the
   petition was due.

   Reuters Ltd. v. FCC, 781 F. 2d 946, 951 (D.C. Cir. 1986); National Black
   Media Coalition v. FCC, 760 F. 2d 1297, 1299-1300 (D.C. Cir. 1985, Scalia,
   J.) (FCC has no jurisdiction to consider an appeal after 30 days have
   passed from date of public notice, distinguishing Gardner v. FCC, 530 F.
   2d 1086 (D.C. Cir. 1976)).

   Metromedia, Inc., 56 FCC2d 909 (1975) (Commission may not waive 30 day
   filing period to accept a petition for reconsideration filed one day
   late); Mobile Telephone, Inc. 91 FCC 2d 907 PP 4-5 (1982); Nextel
   Communications, Inc., 13 FCC Rcd. 281, 283 P 6 (Wireless Telecom. Bur.

   We note that there was no evidence at the station that the EAS was
   operational after June 23, 2005.

   Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
   21861, 21863,-64, para. 7 (2002); MTD, Inc., Memorandum Opinion and Order,
   6 FCC Rcd 34 (1991)(holding that a company's reliance on an independent
   contractor to construct a tower in compliance of FCC rules does not excuse
   that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
   Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
   for violations of FCC rules despite its reliance on a consulting
   engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248 (Enf. Bur. 2004)
   (holding a licensee liable for its employee's failure to conduct weekly
   EAS tests and to maintain the "issues/programs" list).

   American Paging, Inc. of Virginia, Notice of Apparent Liability for
   Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf. Div.,
   Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, 96 FCC 2d
   1235, 1244 (1984).

   47 C.F.R. S 1.106(f).

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

   See 47 C.F.R. S 1.1914.

   (...continued from previous page)


   Federal Communications Commission DA 07-2069


   Federal Communications Commission DA 07-2069