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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-OR-355
)
Pearson Broadcasting of Mena, ) NAL/Acct. No.200332620007
Inc. )
Licensee of KTTG(FM) ) FRN 0003-7795-68
Mena, Arkansas )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 18, 2003
By the Enforcement Bureau, New Orleans Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Pearson Broadcasting of Mena, Inc.
(``Pearson''), licensee of FM broadcast station KTTG, Mena,
Arkansas, apparently liable for a forfeiture in the amount
of two thousand dollars ($2,000) for willful and repeated
violation of Section 11.61 of the Commission's Rules
(``Rules'').1 Specifically, we find Pearson apparently
liable for failing to conduct required Emergency Alert
System (``EAS'') tests.
II. BACKGROUND
2. On November 6, 2002, an agent from the FCC
Enforcement Bureau's New Orleans Office inspected FM
broadcast station KTTG in Mena, Arkansas. During the course
of the inspection, no logs could be produced reflecting any
EAS events or reasons for failure to send and receive
required tests of the EAS. In addition, although EAS
equipment was installed, a continuous EAS equipment tape
printout showed no activity from June 23, 2002 to August 11,
2002, the last date on the tape. The station's manager
stated he did not know the last time the station conducted
an EAS test, and he thought the equipment was having
problems. No one at the station was able to run an EAS test
when requested by the agent.
III. DISCUSSION
3. Section 11.61 of the Rules states that EAS tests
must be sent and received at regular intervals. Required
Monthly Tests originate from EAS Local or State Primary
sources and must be retransmitted within 60 minutes of
receipt.2 Required Weekly Test must be conducted at least
once a week at random days and times.3 However, the lack of
station EAS log entries and a continuous tape printout of
the EAS activity from June 23, 2002 to August 11, 2002,
demonstrate that Pearson was not receiving or sending
required tests from June 23, 2002 until the time of
inspection on November 6, 2002. Furthermore, there were no
entries in the station's log to indicate any problem or
malfunction of the EAS equipment as required by Section
11.35(b) of the Rules.4 Station management was unaware as
to when the station had last conducted an EAS test. No
station personnel were able to conduct an EAS test.
4. Based on the evidence before us, we find Pearson
willfully5 and repeatedly6 violated Section 11.61 of the
Rules by failing to conduct weekly and monthly EAS tests.
5. Section 1.80(b)(4) of the Rules7 sets forth the
base forfeiture amounts for various violations of the
Commission's Rules. The Rules do not establish a base
forfeiture amount for violating the Commission's rules
requiring EAS tests. Therefore, we must determine an
appropriate forfeiture amount for this violation.8 The
requirement that broadcast stations conduct EAS tests is
similar in both nature and severity to other required
operational performance checks identified in the Rules as
required measurements or required monitoring. Section
1.80(b)(4) of the Rules sets the base forfeiture amount at
$2,000 for failure to make require measurements or conduct
required monitoring. Therefore, we will assess the base
forfeiture for failing to conduct EAS test in the amount of
$2000. In assessing the monetary forfeiture amount, we must
also take into account the statutory factors set fort in
Section 503(b)(2)(D) of the Communications Act of 1934, as
amended (``Act''), which include the nature circumstances,
extent, and gravity of the violation, and with respect to
the violator, the degree of culpability, and any history of
prior offenses, ability to pay, and other such matters as
justice may require.'' 9 Considering the entire record and
applying the factors listed above, this case warrants a
$2,000 forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,10 and Sections 0.111, 0.311 and
1.80 of the Rules,11 Pearson Broadcasting of Mena, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of two thousand dollars ($2,000) for willful
and repeated violation of Section 11.61 of the Rules by
failing to conduct required weekly and monthly EAS tests.
7. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Pearson Broadcasting of Mena, Inc. 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 may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.12
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street S.W., Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
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. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
12. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Pearson Broadcasting of Mena, Inc.,
2937 Highway 71 North, Mena, Arkansas 71593.
FEDERAL COMMUNICATIONS COMMISSION
James C. Hawkins
District Director, New Orleans
Office
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. § 11.61.
2 See 47 C.F.R. § 11.61(a)(1)(v). See also, Amendment of
Part 11 of the Commission's Rules Regarding the Emergency
Alert System, EB Docket No. 01-66, Report and Order, FCC 02-
64 (Feb. 26, 2002); 67 Fed Reg 18502 (April 16, 2002)
(Effective May 16, 2002, the required monthly EAS test must
be retransmitted within 60 minutes of receipt.).
3 See 47 C.F.R. § 11.61(a)(2)(i)(A).
4 47 C.F.R. § 11.35(b).
5 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', 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 . . . .'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387-88
(1991).
6 The 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
U.S.C. § 312(f)(2).
7 47 C.F.R. § 1.80(b)(4).
8 See The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement''), 12
FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
The Forfeiture Policy Statement states that ``...any
omission of a specific rule violation from the...[forfeiture
guidelines]...should not signal that the Commission
considers any unlisted violation as nonexistent or
unimportant..'' Forfeiture Policy Statement, 12 FCC Rcd at
17099. The Commission retains the discretion, moreover, to
depart from the Forfeiture Policy Statement and issue
forfeitures on a case-by-case basis, under its general
forfeiture authority contained in Section 503 of the Act.
Id.
9 47 U.S.C. § 503(b)(2)(D)
10 47 U.S.C. § 503(b).
11 47 C.F.R. §§ 0.111, 0.311, 1.80.
12 See 47 C.F.R. § 1.1914.