**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-03-DL-062        |
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| Petracom of Texarkana, L.L.C.    | ) | NAL/Acct. No. 200332500006   |
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| Licensee of FM Radio Station     | * | FRN 0005009881               |
| KPGG                             |   |                              |
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| Ashdown, Arkansas                | * |                              |
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**FORFEITURE ORDER**

**Adopted:** April 30, 2004 **Released:** May 4, 2004

By the Chief, Enforcement Bureau:

# introduction

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of five thousand four hundred dollars
    (\$5,400) to Petracom of Texarkana, LLC ("Petracom"), licensee of
    Station KPGG(FM), Ashdown, Arkansas for failure to install Emergency
    Alert System ("EAS") equipment in willful and repeated violation of
    Section 11.35(a) of the Commission's Rules ("Rules").[^1]

#  background 

2.  On January 30, 2003, the Commission's Dallas, Texas Office ("Dallas
    Office") conducted an on-site inspection of Station KPGG(FM). The
    inspection revealed that the station's EAS equipment had been
    removed for repairs on October 16, 2003, that the equipment had not
    been returned to service within sixty days of removal, and that the
    station had not sought from the Dallas Office an extension of time
    in which to complete the repairs.[^2] On May 2, 2003, the Dallas
    Office released a *Notice of Apparent Liability for Forfeiture*,
    finding that Petracom apparently willfully and repeatedly violated
    the EAS requirements and assessing an \$8,000 forfeiture against the
    company.[^3]

3.  Pursuant to an extension of time, Petracom filed a response on June
    9, 2003.[^4] In its response, Petracom does not dispute the *NAL*
    findings. However, as discussed below, Petracom seeks cancellation
    or reduction of the assessed forfeiture amount based upon its
    remedial efforts, history of compliance, and inability to pay.

#  discussion

4.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^5] Section 1.80 of the
    Rules,[^6] and the *Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines.*[^7] In examining Petracom's response, Section 503(b) of
    the Act requires us to 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.[^8]
    We will respond to each of Petracom's claims separately below.

5.  First, Petracom claims, and the record reflects, that "*prior to the
    FCC inspection*" it took corrective measures by terminating the
    chief engineer, who was responsible for ensuring compliance with
    Commission requirements, by retaining the services of experts, who
    recommended various corrective measures, and by taking steps to
    implement the experts' recommendations.[^9] Petracom further claims,
    and the record reflects, that *after* the inspection, it informed
    the Dallas Office of its efforts to implement the experts'
    recommendations and ultimately correct all noted deficiencies.[^10]

6.  Petracom, as the licensee, is accountable for its chief engineer's
    omissions and ultimately is responsible for compliance with
    Commission requirements.[^11] Moreover, had Petracom initiated
    remedial measures *after* the Commission's inspection, notice or
    action, such measures, while commendable, would not have been
    considered a mitigating factor that would have warranted a reduction
    or cancellation of the assessed forfeiture.[^12] However, the record
    establishes that Petracom voluntarily and on its own accord
    initiated corrective remedial measures *prior* to the inspection by
    the Commission's Dallas Office. Under such circumstances, and
    consistent with precedent,[^13] we find that Petracom's actions
    present a mitigating factor and that a reduction of the \$8,000
    forfeiture to \$5,400 is warranted.

7.  Second, Petracom claims that it "has an excellent history . . .
    regarding compliance issues" and community service. According to
    Commission records, although Station KPGG(FM) appears to have an
    unblemished history of compliance, one of its sister companies does
    not. Specifically, Commission records reflect that a *Forfeiture
    Order* was recently issued against Petracom of Joplin, L.L.C., for
    violation of the EAS, as well as the public file, requirements.[^14]
    Because Petracom's sister company has been the subject of an
    enforcement action, we find that Petracom's reliance upon past
    history misplaced and that further reduction of the assessed
    forfeiture amount is not warranted.[^15]

8.  Finally, Petracom claims that it is "having serious financial
    difficulty" and that payment of the forfeiture would "have a serious
    impact on \[its\] ability to meet payroll and other expenses."[^16]
    As the *NAL* correctly noted, we will consider adjusting or
    canceling a forfeiture on the basis of an inability to pay claim
    only if the petitioner submits financial documentation (*i.e.,*
    "federal tax returns for the most recent three-year period,
    financial statements prepared according to generally accepted
    accounting practices, or some other reliable and objective
    documentation that accurately reflects the petitioner's current
    financial status").[^17] Petracom offered to, but did not, provide
    any financial documentation in support of its requested adjustment
    or cancellation of the forfeiture,[^18] and thus we have no basis
    upon which to assess its inability to pay claim.[^19]

#  ordering clauses

9.  Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^20]
    Petracom of Texarkana, L.L.C. **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of five thousand four hundred dollars
    (\$5,400) for its failure to comply with the EAS requirements, in
    willful and repeated violation of Section 11.35(a) of the
    Rules.[^21] For collection, the Commission will file a proof of
    claim at the appropriate time in Petracom's bankruptcy action.[^22]

10. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to
    Joseph M. Fry, Vice President and Chief Financial Officer, Petracom
    of Texarkana, L.L.C., 1527 N. Dale Mabry Highway, Lutz, Florida
    33548, and to M. Scott Johnson, Esq., Gardner, Carton & Douglas,
    1301 K Street, N.W., Suite 900, East Tower, Washington, D.C. 20005.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 11.35(a).

[^2]: Under Sections 11.35(b) and (c) of the Rules, 47 C.F.R. §§
    11.35(b) and (c), a broadcast station is required to have effective
    EAS equipment installed, but is permitted to operate for a period of
    sixty days without defective equipment pending its repair. Beyond
    the sixty day period, the broadcast station is required to notify
    the appropriate Field Office that additional time is needed to
    complete the repairs.

[^3]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332500006 (Enf. Bur., Dallas Office, May 2, 2003) ("*NAL*").

[^4]: *See* Letter from Joseph M. Fry, Vice President and Chief
    Financial Officer, Petracom of Texarkana, LLC to Joseph Casey,
    Chief, Enforcement Bureau, Technical and Public Safety Division
    (June 9, 2003).

[^5]: ^?^ 47 U.S.C. § 503(b).

[^6]: ^?^ 47 C.F.R. § 1.80.

[^7]: ^?^ 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303
    (1999).

[^8]: ^?^ 47 U.S.C. § 503(b)(2)(D).

[^9]: Response at 3.

[^10]: *Id.* at 2.

[^11]: ^?^ *See Eure Family Limited Partnership*, 17 FCC Rcd 21861,
    21864-65 ¶¶ 7-8 (2002); *Sonderling Broadcasting Corp.,* 69 FCC 2d
    289, 291 ¶ 6 (1978); *American Paging, Inc.*, 12 FCC Rcd 10417,
    10419 ¶ 11 (Enf. Bur. 1997); *Dial-A-Page, Inc.*, 10 FCC Rcd 8825,
    8826 ¶ 5 (Enf. Bur. 1995).

[^12]: ^?^ *See AM Broadcast Station KTNC and C.R. Communications,
    Inc.,* DA 99-2960 ¶ 5 (Enf. Bur. 1999); *see also* *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 ¶ 8 (Enf. Bur. 2003); *South Central
    Communications Corp.,* 18 FCC Rcd 700, 702-03 ¶ 9 (Enf. Bur. 2003);
    *Northeast Utilities,* 17 FCC Rcd 4115, 4117 ¶ 13 (Enf. Bur. 2002).

[^13]: *See Rotijefco, Inc.,* 18 FCC Rcd 14629, 14631 ¶ 7; *see also Max
    Media of Montana, L.L.C.,* 18 FCC Rcd 21375, 21378 ¶ 11 (Enf. Bur.
    2003); *East Tennessee Radio Group, L.P.,* DA 03-868 ¶ 7 (Enf. Bur.
    March 26, 2003).

[^14]: *See Petracom of Joplin, L.L.C.*, 19 FCC Rcd 6248 (Enf. Bur.2004)
    ("*Petracom-Joplin"*).

[^15]: Findings of violations, or apparent violations, by parent, sister
    or commonly controlled companies are imputed to, and also negate the
    past history claim, of the company under investigation. *See CCN,
    Inc., et al.,* 13 FCC Rcd 13599, 13599-600 ¶ 1(1998); *Petracom
    Joplin, supra,* at ¶ 10; *Hill Country Real Estate Development
    Corp.,* 18 FCC Rcd 21079, 21080 ¶ 5 (Enf. Bur. 2003); *Rio Grande
    Transmission, Inc.,* 16 FCC Rcd 17040, 17042-43 ¶ 10 (Enf. Bur.
    2001); *Mega Communications of St. Petersburg, Licensee, L.L.C.*, 16
    FCC Rcd 15948, 15949 ¶ 6 (Enf. Bur. 2001).

[^16]: Response at 3.

[^17]: ^?^ *NAL* at ¶ 10.

[^18]: Specifically, Petracom offered to address its financial
    difficulties "separately on a confidential basis, and will file with
    the FCC appropriate financial material." Response at 3. However,
    under the Rules and precedent, Petracom's request for
    confidentiality had to *accompany* its submitted material (*i.e.,*
    financial documentation). *See* 47 C.F.R. § 0.457(d)(2), *see also
    KYOO-Communications,* 16 FCC Rcd 9291, 9292 ¶ 5 (Enf. Bur. 2001);
    *Callais Cablevision, Inc.,* 16 FCC Rcd 1359, 1366-67 (2001).

[^19]: Outside of the instant case, the FCC has received notice that
    Petracom has filed for Chapter 11 bankruptcy. However, it appears
    that the Commission has notice that Petracom filed for bankruptcy.
    *See Petracom Joplin, supra,* at note 15. Here, because Petracom has
    not relinquished control over the station and has not submitted any
    supporting financial documentation, its bankruptcy filing, alone,
    neither precludes the imposition of a forfeiture, nor justifies an
    adjustment or cancellation of the forfeiture amount for a violation
    of the Rules. *See* 11 U.S.C. § 362(b); *see also United States v.
    Commonwealth Companies, Inc.*, 913 F.2d 518, 522-26 (8^th^ Cir.
    1990); *Coleman Enterprises, Inc.,* 15 FCC Rcd 24385, 24389 notes
    27-28 (2000), *recon. denied,* 16 FCC Rcd 10016 (2001); *Adelphi
    Communications,* 18 FCC Rcd 7652, 7654 ¶ 8 (Enf. Bur. 2003).

[^20]: ^?^ 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^21]: *See* 47 U.S.C. § 312(f); *see also Southern California
    Broadcasting Co.,* 6 FCC Rcd 4387, 4387-88 ¶ 5 (1991).

[^22]: *See Commonwealth,* 913 F.2d at 523 note 15*Coleman Enterprises,
    Inc.*, 15 FCC Rcd at 24390; *see also* note 19, *supra*.