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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
Delta Radio Greenville, LLC ) File Number EB-04-OR-103
Licensee of WROX(AM) )
in Clarksdale, Mississippi ) NAL/Acct.
Las Vegas, Nevada )
No.200432620005
FRN 0007689243
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 21,
2004
By the District Director, New Orleans Office, South Central
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Delta Radio Greenville, LLC
(``Delta''), licensee of radio station WROX(AM), Clarksdale,
Mississippi, apparently liable for a forfeiture in the
amount of fifteen thousand dollars ($15,000) for willful and
repeated violation of Sections 11.35(a) and 73.49 of the
Commission's Rules (``Rules'').1 Specifically, we find
Delta apparently liable for failing to maintain operational
Emergency Alert System (``EAS'') equipment and failing to
enclose its antenna structure within an effective locked
fence or other enclosure.
II. BACKGROUND
2. On May 12, 2004, an agent of the FCC Enforcement
Bureau's New Orleans Field Office (``New Orleans Office'')
observed the antenna structure of WROX(AM) and discovered
that one side of the fence enclosing the antenna structure
was lying on the ground. The agent easily walked over the
downed section of fence to the base of the antenna
structure, which had radio frequency potential at its base.
3. On May 13, 2004, the agent inspected WROX(AM) and
found that there was no EAS equipment present. In addition,
there was no evidence that the equipment had been removed
from service for repair.2 The General Manager admitted that
no EAS equipment had been present at WROX(AM) since his
arrival at the station in October, 2003. When shown that
one side of the fence enclosing WROX(AM)'s antenna structure
was lying on the ground, he stated the fence had been this
way for the same period of time.
III. DISCUSSION
4. Section 11.35(a) of the Rules requires that
broadcast stations maintain operational EAS encoders,
decoders and attention signal generating and receiving
equipment so that monitoring and transmitting functions are
available during the times the stations are in operation.3
On May 13, 2004, WROX(AM) had no EAS equipment . There was
no evidence or logs that WROX(AM) ever had installed EAS
equipment or ever maintained operational EAS equipment, nor
were there log entries indicating that the equipment was
under repair. The General Manager admitted that WROX(AM)
did not have EAS equipment since at least October 2003.
5. Section 73.49 of the Rules requires that antenna
towers having radio frequency potential at the base must be
enclosed within effective locked fences or other
enclosures.4 On May 12 and 13, 2004, WROX(AM)'s antenna
structure was not enclosed by an effective locked fence or
enclosure.
6. Based on the evidence before us, we find Delta
willfully5 and repeatedly6 violated Sections 11.35(a) and
73.49 of the Rules by failing to maintain operational EAS
equipment and failing to maintain effective fencing around
its antenna structure.
7. Pursuant to Section 1.80(b)(4) of the Rules,7 the
base forfeiture amount for failure to maintain operational
EAS equipment is $8,000 and the base forfeiture amount for
AM tower fencing violations is $7,000. 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, 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.8 Considering
the entire record and applying the factors listed above,
this case warrants a $15,000 forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications
Act, as amended,9 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,10 Delta Radio Greenville, LLC is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for willful and
repeated violation of Sections 11.35(a) and 73.49 of the
Rules by failing to maintain operational EAS equipment and
failing to maintain effective fencing around its antenna
structure.
9. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Delta Radio Greenville, LLC SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. 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. 20554.11
11. The response, if any, must be mailed to the
Federal Communications Commission, New Orleans Office, Room
460, 2424 Edenborn Avenue, Metairie, LA 70001, within
thirty days of the release date of this NAL and MUST INCLUDE
THE NAL/Acct. No. referenced above.
12. 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.
13. 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 Regional
Counsel, FCC, EB, South Central Region, 520 NE Colbern Road,
Second Floor, Lee's Summit, MO 64086. 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.
14. IT IS FURTHER ORDERED that a copy of this NAL
shall be sent by regular mail and
Certified Mail Return Receipt Requested to Delta Radio
Greenville, LLC, 9408 Grand Gate Street, Las Vegas, Nevada
89143.
FEDERAL COMMUNICATIONS
COMMISSION
James C. Hawkins
District Director
New Orleans Office, South
Central Region
Enforcement Bureau
Attachment
_________________________
147 C.F.R. §§ 11.35(a) and 73.49.
2See 47 C.F.R. § 11.35(b).
347 C.F.R. § 11.35(a).
447 C.F.R. § 73.49.
5Section 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 4387-88
(1991).
6The 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).
747 C.F.R. § 1.80(b)(4).
847 U.S.C. § 503(b)(2)(D).
947 U.S.C. § 503(b).
1047 C.F.R. §§ 0.111, 0.311, 1.80.
11See 47 C.F.R. § 1.1914.