Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number EB-04-OR-103
Delta Radio Greenville, LLC )
Licensee of WROX(AM) ) NAL/Acct. No.200432620005
in Clarksdale, Mississippi )
Las Vegas, Nevada ) FRN 0007689243
)
)
FORFEITURE ORDER
Adopted: September 29, 2004
Released: October 1, 2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twelve thousand dollars
($12,000) to Delta Radio Greenville, LLC (``Delta''),
licensee of radio station WROX(AM), Clarksdale, Mississippi,
for willful and repeated violation of Sections 11.35(a) and
73.49 of the Commission's Rules (``Rules'').1 The noted
violations involve Delta's failure to maintain operational
Emergency Alert System (``EAS'') equipment and failure to
enclose its antenna structure within an effective locked
fence or other enclosure.
II. BACKGROUND
2. On May 12, 2004, an agent of the Commission's New
Orleans Field Office of the Enforcement Bureau (``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 of the
station 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.
4. On July 21, 2004, the New Orleans Office issued a
Notice of Apparent Liability for Forfeiture to Delta in the
amount of fifteen thousand dollars ($15,000) for the
apparent willful and repeated failure to maintain
operational EAS equipment and enclose its antenna structure
within an effective locked fence as required by Sections
11.35(a) and 73.49 of the Rules.3 In its response, Delta's
President requests a cancellation of the forfeiture because
he claims he was unaware of the conditions that led to the
issuance of the NAL. He asserts that the former station
manager or the announcer stored the EAS equipment while the
station relocated and failed to return the equipment. He
further states that the current station manager did not
inform him that the station was missing EAS equipment. He
claims that Delta's Vice President inspected the fence
surrounding the antenna on February 7, 2004 and found it
adequate. He claims that upon learning of the missing EAS
equipment and damaged fence, Delta immediately purchased EAS
equipment and scheduled a visit to inspect the fence. He
asserts if the fence was damaged after February 7, 2004 such
damage was most likely the result of vandalism. Finally, he
argues the forfeiture should be reduced based on the
station's long-time record of compliance with the Rules and
the station's financial situation.
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,4
Section 1.80 of the Commission's Rules (``Rules''),5 and The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC
Rcd 303 (1999) (``Forfeiture Policy Statement''). In
examining Delta'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 other such
matters as justice may require.6
6. 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.7
On May 13, 2004, WROX(AM) had no EAS equipment and the
General Manager of the station admitted that WROX(AM) had
not had EAS equipment since at least October 2003. 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. Delta's President does not deny that the
station did not maintain EAS equipment, but argues he was
the ``victim of a dishonest station manager and the
unfortunate death of a station employee.''8 However,
``[t]he Commission has long held that licensees and other
Commission regulatees are responsible for the acts and
omissions of their employees and independent contractors and
has consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent
contractors have resulted in violations.''9 We find that
Delta's violation of Section 11.35(a) of the Rules was
willful10 and repeated.11
7. 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.12 On May 12 and 13, 2004, WROX(AM)'s antenna
structure was not enclosed by an effective locked fence or
enclosure. Although the fence surrounding the antenna
structure may have been effective on February 7, 2004, as
alleged by Delta's President, the fence was damaged on May
12 and 13, 2004, and the General Manager admitted that it
had been damaged for some time. It is irrelevant whether,
as Delta claims, the damage may have been the result of
vandalism. Even if vandals caused the damage, Delta should
have repaired the fence to ensure that it was effectively
enclosing the antenna tower. We find that Delta's violation
of Section 73.49 of the Rules was willful and repeated.
8. Delta asserts that the forfeiture should be
reduced based on its long-time record of compliance with the
Rules. After considering Delta's past history of
compliance, we conclude that a reduction of the forfeiture
amount to $12,000 is appropriate.13
9. Delta also requests a reduction of the proposed
forfeiture based on its financial situation and its prompt
actions to correct the problems. As explicitly stated in
the NAL, we 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. Delta has not provided any
financial documentation to support a claim of inability to
pay; therefore, we have no basis to reduce the forfeiture on
grounds of inability to pay.14 Moreover, Delta's remedial
actions to correct promptly violations after they have been
identified by an agent is expected and does not warrant a
reduction in the forfeiture amount.15
10. We have examined Delta's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement. As a result of our
review, we conclude that Delta willfully and repeatedly
violated Sections 11.35(a) and 73.49 of the Rules and find
that, although cancellation of the proposed monetary
forfeiture is not warranted, reduction of the forfeiture
amount to $12,000 is appropriate based on Delta's past
history of compliance with the Rules.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules,16 Delta Radio Greenville, LLC IS LIABLE
FOR A MONETARY FORFEITURE in the amount of twelve thousand
dollars ($12,000) for willfully and repeatedly violating
Sections 11.35(a) and 73.49 of the Rules.
12. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules 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.17 Payment by check or money
order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight
mail may be sent to Bank One/LB 73482, 525 West Monroe, 8th
Floor Mailroom, Chicago, IL 60661. Payment by wire
transfer may be made to ABA Number 071000013, receiving bank
Bank One, and account number 1165259. The payment should
note NAL/Acct. No. 200432620005, and FRN 0007689243.
Requests for full payment under an installment plan should
be sent to: Chief, Revenue and Receivables Group, 445 12th
Street, S.W., Washington, D.C. 20554.18
13. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Larry G. Fuss, President, Delta Radio,
LLC, 9408 Grand Gate Street, Las Vegas, NV 89143.
FEDERAL COMMUNICATIONS
COMMISSION
George R. Dillon
Assistant Chief, Enforcement
Bureau
_________________________
147 C.F.R. §§ 11.35(a) and 73.49.
2See 47 C.F.R. § 11.35(b).
3Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432620005 (Enf. Bur., New Orleans Office, July 21, 2004)
(``NAL'').
447 U.S.C. § 503(b).
547 C.F.R. § 1.80.
647 U.S.C. § 503(b)(2)(D).
747 C.F.R. § 11.35(a).
8Delta response at 2.
9Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-
64 (2002) and cases cited therein.
10Section 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).
11As 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).
1247 C.F.R. § 73.49.
13See South Central Communications Corp., 17 FCC Rcd 22701
(Enf. Bur. 2002).
14The Commission has determined that, in general, gross
revenues are the best indicator of the ability to pay a
forfeiture. See PJB Communications of Virginia, Inc., 7
FCC Rcd 2088, 2089 (1992).
15See AT&T Wireless Services, Inc., 17 FCC Rcd 21861,
21864-75 (2002); Sonderling Broadcasting Corp., 69 FCC 2d
289, 291 (1978); Odino Joseph, 18 FCC Rcd 16522, 16524,
para. 8 (Enf. Bur. 2003); South Central Communications
Corp., 18 FCC Rcd 700, 702-03, para. 9 (Enf. Bur. 2003);
Northeast Utilities, 17 FCC Rcd 4115, 4117, para. 13 (Enf.
Bur. 2002).
1647 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1747 U.S.C. § 504(a).
18See 47 C.F.R. § 1.1914.