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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
Floyd County Broadcasting Company, Inc. )    File Number EB-02-
WMDJ-FM                         )   NAL/Acct. No. 200332360001
Allen, Kentucky                 )   FRN:  0005-0045-51

                        FORFEITURE ORDER 

Adopted:  June 2, 2004                  Released:  June 4, 2004 

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
        monetary forfeiture in the amount of eight thousand 
        dollars ($8,000) to Floyd County Broadcasting Company, 
        Inc. (``Floyd County Broadcasting''), the licensee of 
        WMDJ-FM, Allen, Kentucky for willful and repeated 
        violation of Section 11.35(a) of the Commission's Rules 
        (``Rules'').1 The noted violation involves Floyd County 
        Broadcasting's failure to have Emergency Alert System 
        (``EAS'') equipment installed and operating.  
     2.   On November 6, 2002, the Commission's Detroit, Michigan 
        District Office (``Detroit Office'') released a Notice 
        of Apparent Liability for Forfeiture (``NAL'') to Floyd 
        County Broadcasting in the amount of eight thousand 
        dollars ($8,000).2  Floyd County Broadcasting filed a 
        response on November 21, 2002.
                         II.  BACKGROUND

     3.   On July 30, 2002, an FCC agent from the Detroit Office 
        conducted an EAS equipment inspection of WMDJ-FM.  At 
        the time of inspection, he found no EAS equipment 
        installed.  The station manager told him that WMDJ-FM 
        had never installed any EAS generating and receiving 
        equipment at the station.
     4.   As a result of the inspection, on November 6, 2002, the 
        Detroit Office issued the subject NAL to Floyd County 
        Broadcasting finding that it willfully and repeatedly 
        violated Section 11.35 of the Rules.    In its response, 
        Floyd County Broadcasting does not challenge the 
        findings of the NAL, that it willfully and repeatedly 
        violated Section 11.35(a) of the Rules. Rather, the 
        licensee seeks reduction or cancellation of the 
        forfeiture based upon its inability to pay the 

                        III.  DISCUSSION

     5.   The proposed forfeiture amount in this case was 
        assessed in accordance with Section 503(b) of the 
        Communications Act of 1934, as amended (``Act''),3 
        Section 1.80 of the Rules,4 and The Commission's 
        Forfeiture Policy Statement and Amendment of Section 
        1.80 of the Rules to Incorporate the Forfeiture 
        Guidelines.5 In examining Floyd County Broadcasting's 
        response, Section 503(b) of the Act requires that the 
        Commission take into account 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 such other matters 
        as justice may require.6   
     6.   Section 11.35(a) of the Rules provides that broadcast 
        stations are responsible for ensuring that EAS Encoders, 
        EAS Decoders, and Attention Signal generating and 
        receiving equipment used as part of the EAS are 
        installed so that the monitoring and transmitting 
        functions are available during times the stations and 
        systems are in operation.  An FCC inspection of WMDJ-FM 
        revealed that no EAS equipment was installed.  Floyd 
        County Broadcasting admitted in its response to the NAL 
        that there was no EAS equipment at the station.7
     7.   Based on the findings of the NAL and Floyd County 
        Broadcasting's response thereto, we find that Floyd 
        County Broadcasting's violation of Section 11.35(a) of 
        the Rules was willful8 and repeated.9 
     8.    In support of its request for cancellation or 
        reduction of the proposed forfeiture, Floyd County 
        Broadcasting submits federal income tax returns for 
        years 1999, 2000, and 2001.10    The Commission has 
        determined that, in general, a licensee's gross revenues 
        are the best indicator of its ability to pay a 
        forfeiture.11  After reviewing the financial data 
        submitted, we find no evidence in Floyd County 
        Broadcasting's response that would support cancellation 
        of the forfeiture or a reduction based upon inability to 
        pay. 12     
                      IV.  ORDERING CLAUSES

     9.   Accordingly, IT IS ORDERED THAT, pursuant to Section 
        503(b) of the Act13, and Sections 0.111, 0.311 and 
        1.80(f)(4) of the Commission's Rules14, Floyd County 
        Broadcasting, IS LIABLE FOR A MONETARY FORFEITURE in the 
        amount of eight thousand dollars ($8,000) for its 
        willful and repeated violation of Section 11.35(a) of 
        the Rules.
     10.  Payment of the forfeiture shall be made in the manner 
        provided for in Section 1.80 of the Commission's Rules15 
        within 30 days of the release of this Order.  If the 
        forfeiture is not paid within the period specified, the 
        case may be referred to the Department of Justice for 
        collection pursuant to Section 504(a) of the Act.16  
        Payment may be made by credit card through the 
        Commission's Credit and Debt Management Center at (202) 
        418-1995 or by mailing a check or similar instrument, 
        payable to the order of the Federal Communications 
        Commission, to the Federal Communications Commission, 
        P.O. Box 73482, Chicago, Illinois 60673-7482.  The 
        payment should note the NAL/Acct. No. 200332360001, and 
        FRN: 0005-0045-51 referenced above.  Requests for full 
        payment under an installment plan should be sent to: 
        Chief, Credit and Debt Management Center, 445 12th 
        Street, S.W., Washington, D.C. 20554.17
     11.  IT IS FURTHER ORDERED that a copy of this Forfeiture 
        Order shall be sent by Certified Mail, Return Receipt 
        Requested, to Floyd County Broadcasting Company, Inc., 
        P.O. Box 1530, 1428 Highway 80, Martin, Kentucky 41649. 

                         David H. Solomon
                         Chief, Enforcement Bureau

     1 47 C.F.R.  11.35(a).

     2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332360001 (Enf. Bur., Detroit Office, released November 6, 

     3 47 U.S.C.  503(b).

     4 47 C.F.R.  1.80.

     5 12 FCC Rcd  17087 (1997),  recon. denied,  15 FCC Rcd  303 

     6 47 U.S.C.  503(b)(2)(D).

7              Floyd  County  Broadcasting also  states  that  it 
ordered EAS equipment  immediately following  the inspection  and 
had it in place and operational  the very next day.  However,  it 
is well established that ``corrective  action taken to come  into 
compliance with  Commission rules  or policy''  is expected,  and 
does  not   nullify  or   mitigate  any   prior  forfeitures   or 
violations.''  See Seawest  Yacht Brokers, 9  FCC Rcd 6099,  6099 

     8 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,' 
... 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).

     9 As  provided  by  47  U.S.C.    312(f)(2),  a  continuous 
violation is ``repeated'' if it continues for more than one  day.   
The  Conference  Report  for  Section  312(f)(2)  indicates  that 
Congress intended to apply this definition to Section 503 of  the 
Act as well as Section 312.  See H.R. Rep. 97th Cong. 2d Sess. 51 
(1982).  See Southern California Broadcasting Company, 6 FCC  Rcd 
4387, 4388 (1991)  and Western Wireless  Corporation, 18 FCC  Rcd 
10319 at fn 56 (2003). 

     10 Floyd  County  Broadcasting also  seeks  cancellation  or 
reduction of  the  proposed forfeiture  because  its  advertising 
``Rate Card'' would allegedly demonstrate  that its market is  so 
small that  cancellation or  reduction  would be  warranted.   As 
stated herein a licensee's gross revenues are the best  indicator 
of its ability to pay a forfeiture.  See footnote 11, infra.   We 
will  therefore  focus  on   the  information  provided  in   the 
licensee's tax  returns  to  determine its  ability  to  pay  the 

     11  See  PJB Communications  of Virginia,  Inc., 7  FCC  Rcd 
2088, 2089 (1992). 

     12 Id. at  2089 (forfeiture  not deemed  excessive where  it 
represented approximately 2.02  percent of  the violator's  gross 
revenues); Hoosier  Broadcasting Corporation,  15 FCC  Rcd  8640, 
8641 (Enf. Bur. 2002) (forfeiture  not deemed excessive where  it 
represented approximately  7.6 percent  of the  violator's  gross 
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com.  Car. 
Bur. 1992) (forfeiture not deemed excessive where it  represented 
approximately 3.9 percent of the violator's gross revenues).

     13 47 U.S.C.  503(b).

     14 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

     15 47 C.F.R.  1.80.

     16 47 U.S.C.  504(a).

     17 See 47 C.F.R.  1.1914.