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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-OR-242
)
Tralyn Broadcasting, Inc. ) NAL/Acct.No. 200332620001
Licensee of Radio Station )
WIGG(AM) in Wiggins, ) FRN 0005-0066-71
Mississippi )
Muscle Shoals, Alabama
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 1, 2002
By the Enforcement Bureau, New Orleans Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Tralyn Broadcasting, Inc. (``Tralyn''),
licensee of AM radio station WIGG, Wiggins, Mississippi,
apparently liable for a forfeiture in the amount of seven
thousand dollars ($7,000) for repeated and willful violation
of Sections 11.61(a)(2)(i)(A) and 73.3526(a)(2) of the
Commission's Rules (``Rules'').1 Specifically, we find
Tralyn 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.
II. BACKGROUND
2. On August 13, 2002, an agent from the FCC
Enforcement Bureau's New Orleans Field Office inspected
station WIGG(AM) in Wiggins, Mississippi. During this
inspection, it was determined that the station was not
running any weekly EAS tests. There were no log entries
reflecting any EAS events. The station employee responsible
for programming stated that the station had not run any
weekly EAS tests. Additionally, a review of the station's
public inspection file revealed that all of the required
materials were not available, specifically the station
authorization, ``The Public and Broadcasting,'' letters from
the public, and quarterly issues/programs lists for the
years 2001 and 2002.
III. DISCUSSION
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. During the
station inspection on August 13, 2002, there were no records
indicating that the required weekly EAS tests were
transmitted. Additionally, a station employee acknowledged
that a computer controlled the automated station and that
weekly EAS tests were never programmed into the computer to
be transmitted by the station.
4. Section 73.3526(a)(2) of the Rules states that
``[e]very permittee or licensee of an AM, FM, TV, or Class A
TV station in the commercial broadcast services shall
maintain a public inspection file containing the material,
relating to that station, described in paragraphs (e)(1)
through (e)(10) and paragraph (e)(13) of this section.''
Additionally, ``every permittee or licensee of a commercial
AM or FM station shall maintain for public inspection a file
containing the material, relating to that station, described
in paragraphs (e)(12) and (e)(14) of this section.'' On
August 13, 2002, a review of station WIGG's public
inspection file revealed that much of the required material
was missing, including a copy of the station's
authorization, ``The Public and Broadcasting'' manual,
letters from the public, and the issues/programs lists for
the years 2001 and 2002.
5. Based on the evidence before us, we find that
Tralyn repeatedly2 and willfully3 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,4 the
base forfeiture amount for failure to conduct EAS tests is
$2,000 (failure to make required measurements or conduct
required monitoring), and the base forfeiture amount for
public file rule violations is $10,000. 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.''5 In
this case, we consider that although seven issue/programs
lists were missing, overall, approximately one-half of the
station's public file was available at the time of
inspection. Therefore, we assess the forfeiture amount for
the public file violation at $5,000. Considering the entire
record and applying the factors listed above, this case
warrants a $7,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,6 and Sections 0.111, 0.311 and
1.80 of the Rules,7 Tralyn Broadcasting, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand dollars ($7,000) for repeated and
willful violation of Sections 11.61(a)(2)(i)(A) and
73.3526(a)(2) of the Rules by failing to conduct weekly
tests of the Emergency Alert System, and failing to maintain
all required material in the station's public inspection
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, Tralyn Broadcasting, Inc. 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. Request for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivable Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.8
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
submitted.
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 Tralyn Broadcasting, Inc., 522 D Mitchell Self
Memorial Drive, Muscle Shoals, Alabama 35662.
FEDERAL COMMUNICATIONS
COMMISSION
James C. Hawkins
District Director, New Orleans
Office
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. §§ 11.61(a)(2)(i)(A), 73.3526(a)(2).
2
32 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).
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 47 C.F.R. § 1.80(b)(4).
5
47 U.S.C. § 503 (b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.