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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Jerry Russell dba The Russell
Company ) File Number: EB-06-DL-095
Licensee of Station KWRD ) NAL/Acct. No.: 200732500002
Henderson, Texas ) FRN: 0009607078
Facility ID # 71519 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 14, 2006
By the Dallas District Office, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Jerry Russell dba The Russell Company ("Russell"), licensee of AM
Broadcast Radio station KWRD, in Henderson, Texas, apparently
willfully and repeatedly violated Section 11.35(a) of the
Commission's Rules ("Rules") by failing to ensure the operational
readiness of station KWRD's Emergency Alert System ("EAS"). We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Russell is apparently liable for a
forfeiture in the amount of eight thousand dollars ($8,000).
II. BACKGROUND
2. On June 7, 2006, an agent from the Commission's Dallas Office of the
Enforcement Bureau ("Dallas Office") conducted an inspection at the
main studio of station KWRD located in Henderson, Texas. No employees
of Russell were present at the station. On January 31, 2006, Russell
signed a Time Brokerage and Option Agreement ("Agreement") with a
third party ("Broker"). The Agreement allowed Broker to use the
station's facilities to broadcast programming at the station for up to
24 hours a day, seven days a week, but reserved two hours of
programming each week for Russell. Broker and Broker's staff were
present during the inspection. Broker stated that the EAS equipment
had not been operational for "quite awhile." He further clarified that
the EAS system had not been functional since he had been at the
station; over three months. The agent observed that a red fault light
was illuminated on the front panel of the EAS encoder/decoder.
Additionally, the most recent station EAS log entry dated "6/23/05"
simply stated "E.B.S. OK." No entries were made in the log by Russell
or Broker staff to identify the date or cause of the EAS system
failure, or what steps were taken to remedy any failures.
III. DISCUSSION
3. 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.
4. Section 11.35 of the Rules requires all broadcast stations to ensure
that EAS encoders, EAS decoders and Attention Signal generating and
receiving equipment are 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
to service. On June 7, 2006, station KWRD's EAS encoder/decoder was
not operational when the station was in operation. A red fault light
was illuminated on the front panel of the EAS encoder/decoder. Broker,
who was in charge of the station during the inspection, admitted that
the EAS equipment had not worked since he arrived at the station.
Broker did not know when the EAS equipment first became defective, but
he did observe that it had been defective for over 90 days. The most
recent EAS log entry for the station was dated 6/23/05, and there was
no evidence that the equipment was operational after that date or that
any required weekly or monthly EAS tests had been conducted after that
date. There were also no log entries describing when the EAS equipment
first became defective. Based on the evidence before us, we find that
Russell apparently willfully and repeatedly violated Section 11.35(a)
of the Rules by failing to ensure the operational readiness of the EAS
equipment at station KWRD.
5. 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 operational is $8,000. 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
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 Russell is apparently liable for a $8,000
forfeiture.
IV. ORDERING CLAUSES
6. 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, Jerry Russell dba The
Russell Company is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violation of Section 11.35(a), of the Rules.
7. 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, Jerry Russell dba The
Russell Company SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
8. 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.
9. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Dallas Office,
9330 LBJ Freeway, Dallas, Texas 75243 and must include the NAL/Acct.
No. referenced in the caption.
10. 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.
11. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
12. 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 Jerry Russell dba The Russell Company
at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director
Dallas Office
South Central Region
Enforcement Bureau
47 C.F.R. S 11.35(a).
47 U.S.C. S 503(b).
The Emergency Broadcast System predates EAS.
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. S 11.35(a), (b).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
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
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Federal Communications Commission