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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) )
Clarksdale, Mississippi )
MEMORANDUM OPINION AND ORDER
Adopted: September 17, 2007 Released: September 18, 2007
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we deny the petition
for reconsideration filed by Delta Radio Greenville, LLC ("Delta"),
licensee of radio station WROX(AM), Clarksdale, Mississippi, of the
Forfeiture Order issued October 1, 2004. The Forfeiture Order imposed
a monetary forfeiture in the amount of $12,000 on Delta for the
willful and repeated violation of Sections 11.35(a) and 73.49 of the
Commission's Rules ("Rules"). The noted violations involved Delta's
failure to maintain operational Emergency Alert System ("EAS")
equipment and its failure to enclose an antenna tower with radio
frequency potential at the base within an effective locked fence.
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. 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. The Enforcement Bureau received Delta's response
requesting cancellation of the proposed forfeiture on August 19, 2004.
On October 1, 2004, the Enforcement Bureau ("Bureau") released the
Forfeiture Order, which reduced the forfeiture to $12,000 based on
Delta's history of compliance with the rules. The Bureau received
Delta's petition for reconsideration on November 1, 2004, requesting
cancellation of the forfeiture.
5. The forfeiture amount in this case was assessed in accordance with
Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
Delta's petition, 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 any
other such matters as justice may require.
6. The Bureau found that Delta repeatedly violated Sections 11.35 and
73.49 of the Rules. Delta does not dispute that its violations were
repeated in either its response to the NAL or in its petition for
reconsideration. Accordingly, the Bureau need not have reached the
question of whether its violations were willful. Nevertheless, because
we did so and found Delta's violations to be willful, we will address
Delta's argument to the contrary.
7. Specifically, Delta argues that its rule violations were not willful
because the station owner was unaware of them. For example, Delta's
owner explains that he moved from Mississippi in May 2004 and relies
on employees to manage the station. He further asserts that he was
not informed by Delta's general manager that the station had not had
EAS equipment installed at the main studio for several months or that
the fence surrounding the station's transmitter had been damaged for
some time. On these grounds, Delta's owner asserts that he "cannot be
present on a daily basis to ensure" compliance at all times and that
his lack of knowledge of the rule violations should absolve Delta of a
finding of willful violation.
8. We disagree. "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 has consistently
refused to excuse licensees from forfeiture penalties where actions of
employees or independent contractors have resulted in violations,"
precisely because licensees may not oversee the day-to-day operations
of their stations. To hold otherwise, would allow licensees to avoid
compliance with the rules simply by not paying attention to their
stations. Thus, although Delta's employees and general manager may
have failed to inform the owner of these violations, the Commission
holds licensees responsible for the acts and omissions of their
employees. Accordingly, we affirm our conclusion that Delta's
violations were willful and repeated.
9. Moreover, regarding its fencing violation, in response to the NAL,
Delta's owner stated the fence must have been damaged by vandals, as
the transmitter had been vandalized several times since 1998. If
Delta's owner knew that the transmitter site had a history of being
vandalized, he should have had the transmitter site inspected
regularly, but failed to do so. Lastly, prompt corrective action taken
to come into compliance with the Rules, such as Delta's owner's repair
of the fence and purchase of EAS equipment, is expected, and does not
nullify or mitigate any prior forfeitures or violations.
10. Finally, Delta asserts a forfeiture of this magnitude would pose a
significant financial hardship. The Commission has determined that, in
general, an entity's gross revenues are the best indicator of its
ability to pay a forfeiture. After reviewing Delta's tax returns and
total income, we conclude that a reduction of the $12,000 forfeiture
is not warranted.
11. Therefore, we find no basis upon which to cancel or reduce the
forfeiture imposed in the Forfeiture Order.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, Delta Radio Greenville, LLC's petition for
reconsideration of the October 1, 2004 Forfeiture Order IS hereby
13. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Delta Radio
Greenville, LLC IS LIABLE FOR A MONETARY FORFEITURE in the amount of
twelve thousand dollars ($12,000) for violations of Sections 11.35 and
73.49 of the Rules.
14. Payment of the $12,000 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. 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 full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
15. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Delta Radio
Greenville, LLC at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Delta Radio Greenville, LLC, Forfeiture Order, 19 FCC Rcd 19461 (Enf. Bur.
2004) ("Forfeiture Order").
47 C.F.R. S:S: 11.35(a), 73.49.
See 47 C.F.R. S: 11.35(b).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200432620005
(Enf. Bur., New Orleans Office, July 21, 2004) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303 (1999).
47 U.S.C. S: 503(b)(2)(D).
We note that neither Delta's owner nor its general manager know precisely
when the station's EAS equipment was stolen or misplaced. The equipment
was purchased on May 24, 2002, and disappeared sometime during one of the
station's relocations. However, because Delta's owner was unaware of the
missing equipment and has no EAS logs, as they too were misplaced, he
cannot refute the general manager's admission.
Delta's owner claims the general manager is unqualified to make this
determination as he was not stationed at the transmitter. However, even if
the general manager went to the transmitter site infrequently, as the
owner states, he would be able to assess the condition of the fence, as it
was visible from the transmitter site. Moreover, as Delta's owner had not
seen the fence nor had any other employee inspect the fence since May 13,
2004, he cannot refute the general manager's admission.
Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64 (2002) and
cases cited therein.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 11.35, 73.49.
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-3913
Federal Communications Commission DA 07-3913