Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Frank R. Truatt ) File Number EB-05-NY-245
Licensee of Station WTBQ ) NAL/Acct. No. 200632380007
Warwick, New York ) FRN 0003 7763 90
Facility ID #22292 )
Adopted: March 2, 2007 Released: March 8, 2007
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of nine thousand six hundred dollars ($9,600) to Frank R.
Truatt ("Truatt"), the licensee of AM station WTBQ in Warwick, New
York, for willfully and repeatedly violating Sections 11.35(a),
73.1590(a)(6), and 73.3526(e)(12) of the Commission's Rules ("Rules")
by failing to maintain fully operational Emergency Alert System
("EAS") equipment, failing to conduct the annual transmitter equipment
performance measurements, and failing to maintain a radio
issues/programs list in the station's public inspection file.
2. On September 15, 2005, an agent from the Commission's New York Office
conducted an inspection with Truatt at WTBQ's main studio located at
62 North Main Street, Florida, NY 10921. Based on violations found by
the agent during the inspection and additional information provided by
Truatt in response to a Letter of Inquiry ("LOI"), the New York Office
issued a Notice of Apparent Liability for Forfeiture in the amount of
$14,000 to Truatt on July 19, 2006, for apparent willful and repeated
violation of Sections 11.35(a), 73.1590(a)(6), and 73.3526(e)(12) of
the Rules for failure to maintain fully operational EAS equipment,
failure to conduct the annual transmitter equipment performance
measurements, and failure to maintain a radio issues/programs list in
the station's public inspection file.
3. Truatt submitted a response to the NAL on August 17, 2006. Truatt does
not dispute the findings in the NAL, but claims a cancellation or
reduction is warranted because: (1) the EAS equipment was partially
repaired prior to the FCC's inspection; (2) Truatt is unable to pay
the forfeiture without undue financial hardship; (3) Truatt has a
history of compliance with the FCC's Rules; and (4) Truatt has taken
steps to ensure that the violations do not occur again.
4. With regard to the EAS violation, Truatt claims that the forfeiture
should be reduced because he partially resolved the EAS equipment
problem several days prior to the agent's inspection. In the NAL, we
found that WTBQ's EAS equipment had received only nine EAS tests from
its LP-1 source and had received no tests from its LP-2 source between
August 24, 2003, and September 15, 2005. As Truatt explained in
response to a Letter of Inquiry ("LOI") from the New York Office, the
tests were not received because of a malfunction in WTBQ's EAS
equipment, which occurred around September 2003. Truatt also indicated
in his response to the LOI that the problem with the receipt of tests
from its LP-1 source was resolved on September 12, 2005, just three
days before the FCC agent's inspection. Truatt also reported that the
station had changed its LP-2 source on September 16 and that it was
receiving tests from its LP-2 source. The logs submitted by Truatt in
response to the LOI confirmed that tests were being received from the
LP-1 source, but also showed that during the seventeen weeks following
the September 15, 2005 inspection, WTBQ had received a total of only
four weekly and one monthly EAS test from its new LP-2 source. In his
response to the NAL, Truatt reports that WTBQ's EAS equipment is fully
operational and that the partial repairs he made to the equipment
prior to the agent's inspection warrant a reduction in the forfeiture.
5. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("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. In assessing forfeitures,
Section 503(b)(2)(D) of the Act requires that we 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
6. We agree with Truatt that the partial repairs made to the EAS
equipment prior to the agent's inspection warrant a reduction in the
proposed forfeiture. As the Commission has stated, however, the amount
of a reduction based on good faith depends on the circumstances of the
particular case. Here, in determining the amount of the reduction, we
take into account that the repairs made prior to the agent's
inspection did not, as Truatt concedes, fully resolve the problems
with the EAS equipment. In addition, by Truatt's own admission, the
EAS equipment was defective for more than two years. We conclude that
a reduction in the amount of $1,600 is appropriate. We also agree that
a reduction is warranted in light of Truatt's history of compliance
with the Commission's Rules. Accordingly, we will further reduce the
proposed forfeiture by an additional $2,800, which brings the total
forfeiture amount to $9,600.
7. We decline, however, to reduce the proposed forfeiture based on
Truatt's claim that he has taken steps to ensure that the violations
do not occur again. The Commission consistently has held that
corrective action taken to come into compliance with the Rules is
expected, and does not nullify or mitigate any prior forfeitures or
violations. We also decline to reduce the proposed forfeiture based on
Truatt's claim that payment of the forfeiture will cause an undue
financial hardship. The Commission has determined that, in general,
an individual's or entity's gross revenues are the best indicator of
an ability to pay a forfeiture. We have reviewed the federal tax
returns submitted by Truatt and find that the forfeiture, as reduced,
represents a percentage of gross income that falls within the range
that has been found acceptable.
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 Rules, Frank R. Truatt IS LIABLE FOR A MONETARY
FORFEITURE in the amount of nine thousand six hundred dollars ($9,600)
for willful and repeated violation of Sections 11.35(a),
73.1590(a)(6), and 73.3526(e)(12) of the Rules.
9. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) days of the release of
this Order. If the forfeiture is not paid within the period specified,
that 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 Forfeiture Order shall be
sent by Certified Mail, Return Receipt Requested, and regular mail, to
Frank R. Truatt at his address of record and to counsel for Frank R.
Truatt at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Russell Monie, Jr.
Regional Director, Northeast Region
47 C.F.R. SS 11.35(a), 73.1590(a)(6), and 73.3526(e)(12).
Frank R. Truatt., Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 200632380007 (Enf. Bur., New York Office, July 19, 2006) ("NAL").
Frank R. Truatt, Request for Remission and Mitigation of Forfeiture (Filed
August 17, 2006).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 U.S.C. S 503(b)(2)(D).
See A-O Broadcasting Corporation, 2003 WL 23018131 (2003) (subsequent
citations omitted) para. 25.
The twenty percent reduction applied here is consistent with the
reductions applied in A-O Broadcasting Corporation and Radio One Licenses,
Inc., both of which Truatt relies upon in his response to the NAL to
support a reduction based on his remedial efforts. See A-O Broadcasting
Corporation, 2003 WL 23018131 (rel. Dec. 29, 2003); recon. denied, 20 FCC
Rcd 756 (2005)(reducing forfeiture by twenty percent for obtaining, but
not installing EAS equipment prior to FCC inspection) and Radio One, Inc.,
18 FCC Rcd 15964 (Enf. Bur. 2003), recon. denied, 18 FCC Rcd 25481
(reducing forfeiture by twenty percent for ordering new EAS equipment
prior to FCC inspection).
See, e.g., KGB, Inc., 13 FCC Rcd 16396, 16398 P 8 (1998) (reducing the
proposed forfeiture from $11,500 to $9,200 for airing indecent material
due to the broadcast licensee's "history of overall compliance prior to
these broadcasts, and its apparent lack of violations in the period since
these broadcasts"); Max Media of Montana, L.L.C., 18 FCC Rcd 21375, 21379
P 14 (Enf. Bur. 2003) (reducing the proposed forfeiture from $11,000 to
$8,800 for antenna structure lighting and registration violations due to
the licensee's history of overall compliance); South Central
Communications Corp., 18 FCC Rcd 700, 702 P 9 (Enf. Bur. 2003) (reducing
the proposed forfeiture from $10,000 to $8,000 for antenna structure
lighting violations due to the licensee's history of overall compliance).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
In support of his request for a reduction based on an inability to pay,
Truatt initially submitted his personal income tax returns. In his
response to the NAL, however, Truatt reported that, for tax purposes, the
radio station's operation are under FST Corp., T/A WTBQ ("FST"). FCC staff
requested tax returns for FST and both sets of tax returns were reviewed
for purposes of determining whether a reduction is warranted.
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 15
FCC Rcd 24385, 24389 P 11 (2000), recon. denied, 16 FCC Rcd 10023, 10025
P 6 (2001) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 14 FCC Rcd 3356 (CIB 1999), recon. denied, 15
FCC Rcd 8640, 8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where
it represented approximately 7.6 percent of the violator's gross income).
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U. S. C. S 504(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
Federal Communications Commission DA 07-976
Federal Communications Commission DA 07-976