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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 )
Adopted: January 3, 2007 Released: January 5, 2007
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eight thousand dollars ($8,000) to Jerry Russell dba The
Russell Company ("Russell"), licensee of AM Broadcast Radio station
KWRD, in Henderson, Texas for willful and repeated violation of
Section 11.35(a) of the Commission's Rules ("Rules"). The noted
violation involves Russell's failure to ensure the operational
readiness of station KWRD's Emergency Alert System ("EAS").
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 Russell were present at the station. On January 31, 2006, 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 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 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 Russell 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, Russell submitted
a response to the NAL requesting a reduction or cancellation of the
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, 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 Russell'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
5. Section 11.35 of the Rules requires all broadcast stations to ensure
that EAS encoders, EAS decoders and Attention Signal generating and
receiving equipment are installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. Broadcast stations must also determine
the cause of any failure to receive required monthly and weekly EAS
tests, and must indicate in the station's log why any required tests
were not received and when defective equipment is removed and restored
to service. On June 7, 2006, station KWRD's EAS encoder/decoder was
not operational when the station was in operation. A red fault light
was illuminated on the front panel of the EAS encoder/decoder. Broker,
who was in charge of the station during the inspection, admitted that
the EAS equipment had not worked since he arrived at the station.
Broker did not know when the EAS equipment first became defective, but
he did observe that it had been defective for over 90 days. The most
recent EAS log entry for the station was dated 6/23/05, and there was
no evidence that the equipment was operational after that date or that
any required weekly or monthly EAS tests had been conducted after that
date. There were also no log entries describing when the EAS equipment
first became defective.
6. In its response, Russell argues that the violation was inadvertent and
not willful. Russell does not dispute that its violation was repeated.
Russell states the EAS system was operational and the EAS logs up to
date on December 30, 2005, right before the Agreement went into
effect. Russell asserts former employees had access to the station for
three days as the Agreement was completed and states they may have
removed equipment and materials, unbeknownst to it. Russell states it
was not aware that the EAS unit was damaged until October 2006,
because its employees and Broker failed to alert it of that fact.
Russell does not present any facts that would warrant a reduction or
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 the
Commission has "consistently refused to excuse licensees from
forfeiture penalties where actions of employees or independent
contractors have resulted in violations." Pursuant to the Agreement,
Broker's personnel were subject to the supervision of Russell's
management personnel. 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.
7. Based on the evidence before us, we find that Russell willfully and
repeatedly violated Section 11.35(a) of the Rules by failing to
maintain operational EAS equipment. We have examined Russell'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 find no basis to reduce the $8,000 forfeiture proposed for
IV. ORDERING CLAUSES
8. 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, Jerry Russell dba The Russell
Company IS LIABLE FOR A MONETARY FORFEITURE in the amount of eight
thousand dollars ($8,000) for violation of Section 11.35(a) of the
9. 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. 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 full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th 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 its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
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 503(b).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 11.35(a), (b).
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).
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
The term "repeated," when used with reference to the commission or
omission of any act, "means the commission or omission of such act more
than once or, if such commission or omission is continuous, for more than
one day." 47 U.S.C. S 312(f)(2).
47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 11.35(a).
47 U.S.C. S 504(a).
In its response to the NAL, Russell requested that the forfeiture be
reduced and that it be permitted to pay the reduced forfeiture in
installments. We do not reduce the forfeiture associated with the
violation. Russell, however, may submit a request to pay the full amount
of the forfeiture in installments with the Associate Managing Director.
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-04
Federal Communications Commission DA 07-04