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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 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 19, 2006
By the District, New York Office, Northeast Region, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Frank R. Truatt, the licensee of AM station WTBQ in Warwick, New
York, apparently willfully and repeatedly violated 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. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Truatt is apparently liable for a
forfeiture in the amount of fourteen thousand dollars ($14,000).
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. The agent observed that the
EAS equipment was installed, and heard the audio through the EAS
Decoder's built-in speaker from WTBQ's two assigned monitoring sources
("LP-1" and "LP-2").
3. The agent conducted a comprehensive review of WTBQ's available station
logs dating back to August 24, 2003, including printouts from the EAS
encoder/decoder. According to the logs, the station received only
seven weekly and monthly EAS tests from August 24, 2003, to the date
of the inspection. The agent also observed that numerous notes made in
the station logs during the weeks between August 24, 2003 and July 11,
2004 specifically stated that WTBQ had not received the required EAS
tests during those weeks. There were no logs indicating why the tests
were not received and no logs identifying the cause of any equipment
failures or any actions taken to remedy any equipment failures. The
agent found no station logs for the period of July 25, 2004 to August
4. With regard to the transmission of EAS tests, the agent found that
WTBQ had transmitted almost all of the required weekly tests from
August 24, 2003 through the date of the inspection. A review of the
station logs showed that WTBQ transmitted only four monthly tests from
August 24, 2003 until the time of inspection.
5. The New York Office sent a Letter of Inquiry ("LOI") to Truatt on
December 29, 2005. In a response received by the New York Office on
January 17, 2006, Truatt reported that, between August 24, 2003 and
September 15, 2005, WTBQ's EAS equipment had received only nine EAS
tests from its LP-1 source and had received no tests from the LP-2
source during that period. Truatt included with the response WTBQ's
weekly station logs and EAS printouts, which support that nine EAS
tests were received between August 24, 2003 and September 15, 2005.
According to Truatt, the tests were not received because of a
malfunction in WTBQ's EAS equipment, which occurred around September
2003. Truatt stated that the malfunction never was reported to the
6. Truatt also reported 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. The logs submitted with Truatt's response to the LOI
confirmed that, between September 12, 2005, and the date the response
to the LOI was submitted, WTBQ consistently received tests from its
LP-1 source. Truatt also reported that the station changed its LP-2
source on September 16, 2005, and that it now successfully receives
tests from its LP-2 source. The logs submitted by Truatt in response
to the LOI, however, indicate 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.
7. During the September 15, 2005 inspection, the agent also conducted a
comprehensive review of WTBQ's public inspection file and observed
that it did not contain a radio issues/programs list. The agent also
observed that there was no evidence that transmitter equipment
performance measurements had ever been conducted.
8. In response to the December 29, 2005 LOI, Truatt stated that, although
the station has a public affairs calendar, he "forgot" to place an
issues/programs list in the public inspection file. With regard to
the transmitter equipment performance measurements, Truatt does not
deny that the measurements were not taken, but states that the station
has conducted the necessary equipment performance measurements since
9. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
10. The Rules provide that every AM and FM broadcast station is part of
the nationwide EAS network and is categorized as a participating
national EAS source unless the station affirmatively requests
authority to not participate. The EAS provides the President and state
and local governments with the capability to provide immediate and
emergency communications and information to the general public. State
and local area plans identify local primary sources responsible for
coordinating carriage of common emergency messages from sources such
as the National Weather Service or local emergency management
officials. Required monthly and weekly tests originate from EAS Local
or State Primary sources and must be retransmitted by the
11. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders, attention signal generating,
and receiving equipment is 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
12. Sections 11.61(a)(1) and 11.61(a)(2) of the Rules require broadcast
stations to receive monthly EAS tests from designated local primary
EAS sources and retransmit the monthly test within 60 minutes of its
receipt and to conduct tests of the EAS header and EOM codes at least
once a week at random days and times. The requirement that stations
monitor, receive and retransmit the required EAS tests ensures the
operational integrity of the EAS system in the event of an actual
disaster. Section 11.61(b) of the Rules requires that entries of each
test and activation of the EAS must be made in the broadcast station
log as specified in Sections 73.1820 and 73.1840 of the Rules.
13. A comprehensive review of WTBQ's station logs that were available at
the time of the inspection on September 15, 2005, as well as the logs
subsequently submitted by Truatt in response to the LOI, showed that
only nine weekly and monthly EAS tests were received by WTBQ from a
single source during the period of August 24, 2003, to the date of the
inspection. The logs included notes indicating that tests had not been
received and that the Chief Operator confirmed with WTBQ's monitoring
sources that the tests had in fact been sent. The logs, however, did
not explain the reasons why EAS tests were not received, nor did they
identify the cause of any equipment failures or any actions taken to
remedy any equipment failures. In response to the LOI, Truatt reported
that WTBQ had received a total of only nine EAS tests over a period of
more than two years because of a malfunction in the EAS equipment,
which occurred around September of 2003. Because Truatt was aware by
September 2003 that WTBQ's EAS equipment was not fully operational,
and there is no evidence that any corrective actions were taken until
after the agent's inspection on September 15, 2005, we conclude that
Truatt apparently willfully and repeatedly violated Section 11.35 of
14. Section 73.1590(a)(6) provides that AM stations must make equipment
performance measurements annually, with no more than fourteen months
between measurements. During the inspection on September 15, 2005, the
agent found no evidence that equipment performance measurements had
ever been taken by WTBQ. When asked in the LOI about the absence of
such measurement, Truatt merely reported that measurements had been
taken since the September 15, 2005 inspection. Based on the evidence,
we find that Truatt apparently willfully and repeatedly failed to
conduct annual transmitter equipment performance measurements as
required under Section 73.1590(a)(6) of the Rules.
15. Section 73.3526(e)(12) of the Rules provides that commercial AM and FM
broadcast stations must place in their public inspection file, for
each calendar quarter, a radio issues/programs list, which is a list
of programs that have provided the station's most significant
treatment of community issues during the preceding three-month period.
The lists must be retained in the public inspection file until final
action has been taken on the station's next license renewal
application. A review of WTBQ's public inspection file by the agent on
September 15, 2005 showed that the file did not contain any radio
issues/programs lists. In response to the LOI, Truatt stated that,
although the station had a public affairs calendar, he "forgot" to
place an issues/programs list in the public file. Based on the
evidence before us, we conclude that Truatt apparently willfully and
repeatedly violated Section 73.3526(e)(12) of the Rules.
16. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for EAS equipment not installed or operational
is $8,000, the base forfeiture amount for failure to make required
measurements is $2,000, and the base forfeiture amount for violation
of the public file rule is $10,000. Because WTBQ's public file was
mostly complete and missing only one item, we conclude a reduction in
the base forfeiture amount for the public file violation to $4,000 is
appropriate. 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 Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the
violator, the degree of culpability, and history of prior offenses,
ability to pay, and other such matters as justice may require.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Frank R.
Truatt is apparently liable for a $14,000 forfeiture.
IV. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Frank R. Truatt is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
fourteen thousand dollars ($14,000) for violations of Sections
11.35(a), 73.1590(a)(6), and 73.3526(e)(12) of the Rules.
18. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Frank R. Truatt SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
19. 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.
20. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, New York, NY 10014 and must include the NAL/Acct. No.
referenced in the caption.
21. 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.
22. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.
23. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Frank R. Truatt at his address of
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
47 C.F.R. SS 11.35(a), 73.1590(a)(6), and 73.3526(e)(12).
47 U.S.C. S 503(b).
During that period, the chief operator stated in the log that personnel
from WTBQ's two monitoring sources confirmed that the required weekly and
monthly tests were transmitted.
The Commission's rules specifically provide that, to complete the required
monthly tests, a station must retransmit, in full, the tests received from
its LP-1 and LP-2 sources. Because WTBQ was not receiving tests from its
LP-1 and LP-2 sources, it could not, by definition, have complied with the
monthly test requirement.
In his response, Truatt acknowledged that not all required station logs
were available at the time of the inspection. Truatt submitted with his
response to the LOI weekly log sheets for most of the missing weeks from
July 25, 2004 to August 14, 2005, many of which he created after the
inspection based on the existing EAS encoder/decoder printouts. The logs
created from the printouts showed that only two EAS tests were received
during that period. Truatt also submitted logs for the period between
August 14, 2005 and the date of the inspection, to which he added
notations that tests were not received.
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', 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he 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 C.F.R. SS 11.11 and 11.41.
47 C.F.R. SS 11.1 and 11.21.
47 C.F.R. S 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
47 C.F.R. SS 11.35(a) and (b). Section 11.35(c) of the Rules also provides
that if repair or replacement of defective equipment is not completed
within 60 days, an informal request shall be submitted to the District
Director of the FCC field office serving the area in which the broadcast
station is located. 47 C.F.R. S11.35(c).
47 C.F.R. SS 11.61(a)(1) and (a)(2).
47 C.F.R. SS 11.61(b), 73.1820, 73.1840.
We also note Truatt's claim that, as of September 16, 2005, WTBQ is
receiving tests from a new LP-2 station. The logs submitted with the
response to the LOI, however, show that WTBQ received only four weekly EAS
tests and one monthly EAS test from its LP-2 source in the seventeen weeks
following the agent's inspection.
47 C.F.R. S 73.3526(e)(12).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 11.35(a),
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
Federal Communications Commission