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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-782
Petracom of Joplin, L.L.C. ) NAL/Acct. No. 200332560006
Licensee of Radio Station KCAR-FM )
in Galena, Kansas ) FRN 0005-0098-40
Lutz, Florida )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 12, 2002
By the Enforcement Bureau, Kansas City Office:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Petracom of Joplin, L.L.C.
(``Petracom''), licensee of FM radio station KCAR-FM,
Galena, Kansas, apparently liable for a forfeiture in the
amount of three thousand five hundred dollars ($3,500) for
willful and repeated violation of Sections 11.61(a)(2)(i)(A)
and 73.3526(a)(2) of the Commission's Rules (``Rules'').1
Specifically, we find Petracom apparently liable for failing
to conduct weekly tests of the Emergency Alert System
(``EAS''), and failing to maintain all required material in
the station's public inspection file.
2. On November 7, 2002, an agent of the Commission's
Kansas City Office inspected the EAS installation and public
file for radio station KCAR-FM, Galena, Kansas. The EAS
equipment was set to automatically receive, re-transmit and
log EAS tests. The most recent log entry of an EAS test was
dated July 22, 2002. The station's manager stated that the
station had conducted no EAS tests. The station's public
file had no issues/programs list. The station's manager
stated that the station had no issues/programs list.
3. Section 11.61(a)(2)(i)(A)of the Rules requires
that effective January 1, 1997, AM, FM, and TV stations must
conduct tests of the EAS header and End of Message codes at
least once a week at random days and times. The station's
logs and statements by the station's management showed that
the station failed to conduct the required weekly EAS tests
from at least July 22, 2002 to November 7, 2002.
4. Section 73.3526(a)(2) of the Rules requires AM, FM
and TV licensees and permittees to maintain a public
inspection file. Among the required material to be
maintained in the public file, AM and FM licensees and
permittees must maintain a list of programs that have
provided the station's most significant treatment of
community issues during the preceding three month period.
The lists shall be retained in the public inspection file
until final action has been taken on the station's next
renewal application.2 On November 7, 2002, a review of
station KCAR-FM's public inspection file revealed no
issues/programs lists. The station manager stated there
were no issues/programs lists even though the station had
been owned by Petracom for at least two years.
5. Based on the evidence before us, we find that
Petracom willfully3 and repeatedly4 violated Sections
11.61(a)(2)(i)(A) and 73.3526(a)(2) of the Rules by failing
to conduct weekly EAS tests and failing to maintain all
required material in the station's public inspection file.
6. Pursuant to Section 1.80(b)(4) of the Rules,5 the
base forfeiture amount for public file rule violations is
$10,000. The Rules do not establish a base forfeiture
amount for violating the Commission's rules requiring EAS
tests. Therefore, we must determine an appropriate
forfeiture amount for this violation.6 The requirement that
broadcast stations conduct EAS tests is similar in both
nature and severity to other required operational
performance checks identified in the Rules as required
measurements or required monitoring. Section 1.80(b)(4) of
the Rules sets the base forfeiture amount at $2,000 for
failure to make required measurements or conduct required
monitoring. Therefore, we will assess the base forfeiture
for failing to conduct EAS tests in the amount of $2,000.
In assessing the monetary forfeiture amount, we must also
take into account the statutory factors set forth in Section
503(b)(2)(D) of the Communications Act of 1934, as amended
(``Act''), which include 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 require.''7 In this case, we consider that the
issues/programs list was the only item missing from the
public inspection file, but that item had never been
maintained by Petracom at the time of inspection.
Therefore, we assess the forfeiture amount for the public
file violation at $1,500. Considering the entire record and
applying the factors listed above, this case warrants a
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,8 and Sections 0.111, 0.311 and
1.80 of the Rules,9 Petracom is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of three
thousand five hundred dollars ($3,500) for willful and
repeated violation of Sections 11.61(a)(2)(i)(A) and
73.3526(a)(2) of the Rules by failing to conduct EAS tests
and maintain an issues/programs list in the public file.
8. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Petracom SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.10
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
11. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the petitioner submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
12. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to
Section 503(b) of the Communications Act. If you have
questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990.
13. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Petracom of Joplin, L.L.C., 1527 North
Dale Mabry Highway, Lutz, FL. 33549.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
Kansas City Office
1 47 C.F.R. §§ 11.61(a)(2)(i)(A) and 73.3526(a)(2).
2 47 C.F.R. § 73.3526(e)(12).
3 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,' when used with reference to the commission or
omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any
intent to violate any provision of this Act ....'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
4 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. § 312(f)(2).
5 47 C.F.R. § 1.80(b)(4).
6 See The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement''), 12
FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
The Forfeiture Policy Statement states that ``... any
omission of a specific rule violation from the ...
[forfeiture guidelines] ... should not signal that the
Commission considers any unlisted violation as nonexistent
or unimportant.'' Forfeiture Policy Statement, 12 FCC Rcd
at 17099. The Commission retains the discretion, moreover,
to depart from the Forfeiture Policy Statement and issue
forfeitures on a case?by?case basis, under its general
forfeiture authority contained in Section 503 of the Act.
7 47 U.S.C. § 503 (b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 See 47 C.F.R. § 1.1914.