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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 )
MEMORANDUM OPINION AND ORDER
Adopted: May 15, 2007 Released: May 17, 2007
By the Assistant Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we dismiss the
Petition for Reconsideration filed by Jerry Russell dba The Russell
Company, licensee of AM Broadcast Radio station KWRD, in Henderson,
Texas. Mr. Russell seeks reconsideration of the Forfeiture Order in
which the Enforcement Bureau ("Bureau") found him liable for a
monetary forfeiture in the amount of eight thousand dollars ($8,000)
for willful and repeated violation of Section 11.35(a) of the
Commission's Rules ("Rules"). The noted violation involves Mr.
Russell's failure to ensure the operational readiness of station
KWRD's Emergency Alert System ("EAS"). For the reasons provided below,
we dismiss Mr. Russell's petition for reconsideration as untimely.
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 Mr. Russell were present at the station. On January 31, 2006, Mr.
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 Mr. 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 Mr.
Russell or Broker staff to identify the date or cause of the EAS
system failure, or the steps taken to remedy any failures.
3. On November 14, 2006, the Dallas Office issued a Notice of Apparent
Liability for Forfeiture to Mr. Russell in the amount of eight
thousand dollars ($8,000) for the apparent willful and repeated
violation of Section 11.35(a) of the Rules. On December 15, 2006, Mr.
Russell submitted a timely response to the NAL requesting a reduction
or cancellation of the proposed forfeiture. Mr. Russell argued that
his violation was inadvertent and not willful, because the violations
occurred unbeknownst to him. He claimed his station's EAS was
operational before he entered into the Agreement and that Broker
failed to notify him of the EAS status. Mr. Russell did not dispute
that the violation was repeated.
4. The Bureau affirmed the NAL in the Forfeiture Order, stating that
"Russell, as the licensee, is responsible for ensuring compliance with
the Rules, and consciously allowed its employees and Broker to operate
its radio station. Russell cannot absolve itself of liability by
claiming it was unaware of the actions and inactions of those
employees and Broker." Mr. Russell filed a petition for
reconsideration of the Forfeiture Order, which the Commission received
on February 20, 2007.
5. Section 405 of the Communications Act of 1934, as amended ("Act")
requires that a petition for reconsideration of a Commission action or
an action by delegated authority must be filed no later than 30 days
after the action that is the subject of the appeal. Once it has made
public notice of the action pursuant to Section 1.4 of the Rules, the
Commission loses jurisdiction to consider an appeal after 30 days have
passed. Section 1.106 of the Rules reflects this statutory mandate.
6. Mr. Russell did not timely file his petition for reconsideration of
the Forfeiture Order. The Forfeiture Order was released and placed on
public notice on January 5, 2007. The thirtieth day after January 5,
2007 was February 4, 2007 (a Sunday). Mr. Russell's petition for
reconsideration was therefore due on February 5, 2007. His petition
for reconsideration was not received by the Commission until February
20, 2007. After February 5, 2007, pursuant to the Act, the Commission
has no jurisdiction to consider Russell's petition for
reconsideration. Accordingly, we must dismiss Mr. Russell's petition
for reconsideration as untimely.
7. Assuming arguendo that Mr. Russell's petition was timely filed, we
would nevertheless deny it. Mr. Russell's petition raises additional
circumstances, which were not submitted in the response to the NAL,
but these facts do not justify cancellation or reduction of the
forfeiture. It is irrelevant whether the station's EAS was working
prior to entering into the Agreement, because there was no evidence
that the equipment was working between January 31, 2006 and the
inspection on June 7, 2006. It is also irrelevant that Mr. Russell
employed someone to monitor the station on a daily basis, who failed
to notify him of the problems with the EAS, because the "Commission
has long held that licensees and other Commission regulatees are
responsible for the acts and omissions of their employees and
independent contractors," and the Commission has "consistently refused
to excuse licensees from forfeiture penalties where actions of
employees or independent contractors have resulted in violations."
Moreover, Mr. Russell's illness does not provide grounds for
cancellation of the violation. Finally, Mr. Russell asserts that the
forfeiture would pose a serious hardship, but he failed to include any
documentation of the station's finances. Therefore, we are unable to
determine whether a reduction based on inability to pay is warranted.
IV. ordering clauses
8. Accordingly, IT IS ORDERED that, pursuant to Section 405(b) of the
Communications Act of 1934, as amended, and Section 1.106(f) of the
Commission's Rules, the petition for reconsideration filed by Jerry
Russell dba The Russell Company IS DISMISSED.
9. Payment of the forfeiture assessed by the Forfeiture Order 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. 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. Requests for
payment of the full amount of the NAL under an installment plan should
be sent to: Associate Managing Director - Financial Operations, 445
12^th Street, S.W., Room 1A625, Washington, D.C. 20554.
10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Jerry Russell dba
The Russell Company at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
Jerry Russell dba The Russell Company, 22 FCC Rcd 48 (South Central
Region, Enf. Bur. 2007) ("Forfeiture Order").
47 C.F.R. S 11.35(a).
The Emergency Broadcast System ("EBS") predates EAS.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732500002
(Enf. Bur., Dallas Office, November 14, 2006) ("NAL").
47 U.S.C. S 405(a).
47 C.F.R. S 1.4.
47 C.F.R. S 1.106(f).
Daily Digest, Vol. 26, No. 3, January 5, 2007.
47 C.F.R. S 1.4(j) provides that, when the calculated filing date falls on
a "holiday," the document is due to be filed on the next business day. 47
C.F.R. S 1.4(e)(2) defines the term "holiday" as "Saturday, Sunday,
officially recognized Federal legal holidays and any other day on which
the Commission's offices are closed and not reopened before 5:30 p.m."
Mr. Russell's petition for reconsideration was dated February 10, 2007 and
postmarked February 13, 2007. Thus, it was written and mailed after the
petition was due.
Reuters Ltd. v. FCC, 781 F. 2d 946, 951 (D.C. Cir. 1986); National Black
Media Coalition v. FCC, 760 F. 2d 1297, 1299-1300 (D.C. Cir. 1985, Scalia,
J.) (FCC has no jurisdiction to consider an appeal after 30 days have
passed from date of public notice, distinguishing Gardner v. FCC, 530 F.
2d 1086 (D.C. Cir. 1976)).
Metromedia, Inc., 56 FCC2d 909 (1975) (Commission may not waive 30 day
filing period to accept a petition for reconsideration filed one day
late); Mobile Telephone, Inc. 91 FCC 2d 907 PP 4-5 (1982); Nextel
Communications, Inc., 13 FCC Rcd. 281, 283 P 6 (Wireless Telecom. Bur.
We note that there was no evidence at the station that the EAS was
operational after June 23, 2005.
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863,-64, para. 7 (2002); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34 (1991)(holding that a company's reliance on an independent
contractor to construct a tower in compliance of FCC rules does not excuse
that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
for violations of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248 (Enf. Bur. 2004)
(holding a licensee liable for its employee's failure to conduct weekly
EAS tests and to maintain the "issues/programs" list).
American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf. Div.,
Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, 96 FCC 2d
1235, 1244 (1984).
47 C.F.R. S 1.106(f).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission DA 07-2069
Federal Communications Commission DA 07-2069