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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-DL-062
)
Petracom of Texarkana, L.L.C. ) NAL/Acct. No.200332500006
Licensee of FM Radio Station KPGG )
in ) FRN 0005009881
Ashdown, Arkansas )
Lutz, Florida
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 2, 2003
By the Enforcement Bureau, Dallas Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Petracom of Texarkana, L.L.C.
(``Petracom''), licensee of FM radio station KPGG, Ashdown,
Arkansas, apparently liable for a 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'').1 Specifically, we find Petracom apparently
liable for failure to have Emergency Alert System (``EAS'')
equipment installed.
II. BACKGROUND
2. On January 30, 2003, agents from the FCC's
Enforcement Bureau's Dallas Field Office inspected FM
station KPGG in Texarkana, Texas. The agents' inspection
revealed that EAS equipment was not installed. The
station's operations manager stated that the station had EAS
equipment but that it was not installed. An entry in the
station records stated that the EAS equipment had been
removed for repair on October 16, 2002. The station records
had no other entries indicating the equipment had been
returned to service, and no entries of any EAS tests or
reasons for failure to receive such tests. No record of a
request by Petracom for additional time to repair the EAS
equipment had been received by the Bureau's Dallas and New
Orleans offices.
III. DISCUSSION
3. Section 11.35(a) states that ``[b]roadcast
stations ... are responsible for ensuring that EAS Encoders,
EAS Decoders, Attention Signal generating and receiving
equipment used as part of the EAS are installed so that the
monitoring and transmitting functions are available during
the times the stations and systems are in operation.'' On
January 30, 2003, Petracom failed to have EAS equipment
installed at FM radio station KPGG. Station records
indicated the equipment had been removed from service 106
days prior to the date of inspection, yet no request for
additional time to repair the equipment had been made to the
District Director of either the Dallas or New Orleans
Office.2 Also, station records contained no entries of EAS
tests, activations or reasons for failures to conduct such
tests during this period.3
4. Based on the evidence before us, we find Petracom
willfully4 and repeatedly5 violated Section 11.35(a) of the
Rules by failing to have EAS equipment installed and
operational from at least October 16, 2002, until January
30, 2003.
5. Pursuant to Section 1.80(b)(4) of the Rules,6 the
base forfeiture amount for failure to have EAS equipment
installed and operational is $8,000. In assessing the
monetary forfeiture amount, we must also take into account
the statutory factors set forth 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, any history of prior offenses, ability to
pay, and other such matters as justice may require.7
Considering the entire record and applying the factors
listed above, this case warrants an $8,000 forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,8 and Sections 0.111, 0.311 and
1.80 of the Rules,9 Petracom of Texarkana, L.L.C. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for willful and
repeated violation of Section 11.35(a) of the Rules by
failing to have EAS equipment installed and operational..
7. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Petracom 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. 20554.10
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, 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 Petracom of Texarkana, L.L.C., 1527 N.
Dale Mabry Hwy, Lutz, Florida 33549.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director, Dallas Office
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. § 11.35(a).
2 See 47 C.F.R. § 11.35(c).
3 EAS activations and tests, failure to receive such tests
and EAS equipment malfunctions must be recorded in the
station log. See 47 C.F.R. §§ 11.35(a)-(b), 11.55(c)(7) and
11.61(b).
4 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).
5 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).
6 47 C.F.R. § 1.80(b)(4).
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 See 47 C.F.R. § 1.1914.