**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Number EB-05-NY-245     |
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| Frank R. Truatt                  | ) | NAL/Acct. No. 200632380007   |
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| Licensee of Station WTBQ         | * | FRN 0003 7763 90             |
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| Warwick, New York                | * |                              |
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| Facility ID #22292               | ) |                              |
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**FORFEITURE ORDER**

**Adopted:** March 2, 2007 **Released:** March 8, 2007

By the Regional Director, Northeast Region, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of nine thousand six hundred dollars
    (\$9,600) to Frank R. Truatt ("Truatt"), the licensee of AM station
    WTBQ in Warwick, New York, for willfully and repeatedly violating
    Sections 11.35(a), 73.1590(a)(6), and 73.3526(e)(12) of the
    Commission\'s Rules (\"Rules\")[^1] by failing to maintain fully
    operational Emergency Alert System ("EAS") equipment, failing to
    conduct the annual transmitter equipment performance measurements,
    and failing to maintain a radio issues/programs list in the
    station's public inspection file.

# BACKGROUND

2.  On September 15, 2005, an agent from the Commission's New York
    Office conducted an inspection with Truatt at WTBQ's main studio
    located at 62 North Main Street, Florida, NY 10921. Based on
    violations found by the agent during the inspection and additional
    information provided by Truatt in response to a Letter of Inquiry
    ("LOI"), the New York Office issued a Notice of Apparent Liability
    for Forfeiture in the amount of \$14,000 to Truatt on July 19, 2006,
    for apparent willful and repeated violation of Sections 11.35(a),
    73.1590(a)(6), and 73.3526(e)(12) of the Rules for failure to
    maintain fully operational EAS equipment, failure to conduct the
    annual transmitter equipment performance measurements, and failure
    to maintain a radio issues/programs list in the station's public
    inspection file.[^2]

3.  Truatt submitted a response to the *NAL* on August 17, 2006.[^3]
    Truatt does not dispute the findings in the *NAL*, but claims a
    cancellation or reduction is warranted because: (1) the EAS
    equipment was partially repaired prior to the FCC's inspection; (2)
    Truatt is unable to pay the forfeiture without undue financial
    hardship; (3) Truatt has a history of compliance with the FCC's
    Rules; and (4) Truatt has taken steps to ensure that the violations
    do not occur again.

4.  With regard to the EAS violation, Truatt claims that the forfeiture
    should be reduced because he partially resolved the EAS equipment
    problem several days prior to the agent's inspection. In the *NAL*,
    we found that WTBQ's EAS equipment had received only nine EAS tests
    from its LP-1 source and had received no tests from its LP-2 source
    between August 24, 2003, and September 15, 2005. As Truatt explained
    in response to a Letter of Inquiry ("LOI") from the New York Office,
    the tests were not received because of a malfunction in WTBQ's EAS
    equipment, which occurred around September 2003. Truatt also
    indicated in his response to the LOI that the problem with the
    receipt of tests from its LP-1 source was resolved on September 12,
    2005, just three days before the FCC agent's inspection. Truatt also
    reported that the station had changed its LP-2 source on September
    16 and that it was receiving tests from its LP-2 source. The logs
    submitted by Truatt in response to the LOI confirmed that tests were
    being received from the LP-1 source, but also showed that during the
    seventeen weeks following the September 15, 2005 inspection, WTBQ
    had received a total of only four weekly and one monthly EAS test
    from its new LP-2 source. In his response to the *NAL*, Truatt
    reports that WTBQ's EAS equipment is fully operational and that the
    partial repairs he made to the equipment prior to the agent's
    inspection warrant a reduction in the forfeiture.

# Discussion

5.  The forfeiture amount proposed in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^4] Section 1.80 of the Rules,[^5] and the
    *Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*.[^6] In
    assessing forfeitures, Section 503(b)(2)(D) of the Act requires that
    we 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 such
    other matters as justice may require.[^7]

6.  We agree with Truatt that the partial repairs made to the EAS
    equipment prior to the agent's inspection warrant a reduction in the
    proposed forfeiture. As the Commission has stated, however, the
    amount of a reduction based on good faith depends on the
    circumstances of the particular case.[^8] Here, in determining the
    amount of the reduction, we take into account that the repairs made
    prior to the agent's inspection did not, as Truatt concedes, fully
    resolve the problems with the EAS equipment. In addition, by
    Truatt's own admission, the EAS equipment was defective for more
    than two years. We conclude that a reduction in the amount of
    \$1,600 is appropriate.[^9] We also agree that a reduction is
    warranted in light of Truatt's history of compliance with the
    Commission's Rules. Accordingly, we will further reduce the proposed
    forfeiture by an additional \$2,800, which brings the total
    forfeiture amount to \$9,600.[^10]

7.  We decline, however, to reduce the proposed forfeiture based on
    Truatt's claim that he has taken steps to ensure that the violations
    do not occur again. The Commission consistently has held that
    corrective action taken to come into compliance with the Rules is
    expected, and does not nullify or mitigate any prior forfeitures or
    violations.[^11] We also decline to reduce the proposed forfeiture
    based on Truatt's claim that payment of the forfeiture will cause an
    undue financial hardship. The Commission has determined that, in
    general, an individual's or entity\'s gross revenues are the best
    indicator of an ability to pay a forfeiture.[^12] We have reviewed
    the federal tax returns submitted by Truatt and find that the
    forfeiture, as reduced, represents a percentage of gross income that
    falls within the range that has been found acceptable.[^13]

# ORDERING CLAUSES

8.  Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended,[^14] and Sections 0.111,
    0.311 and 1.80(f)(4) of the Rules,[^15] Frank R. Truatt **IS LIABLE
    FOR A MONETARY FORFEITURE** in the amount of nine thousand six
    hundred dollars (\$9,600) for willful and repeated violation of
    Sections 11.35(a), 73.1590(a)(6), and 73.3526(e)(12) of the Rules.

9.  Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within thirty (30) days of the release
    of this *Order*. If the forfeiture is not paid within the period
    specified, that case may be referred to the Department of Justice
    for collection pursuant to Section 504(a) of the Act.[^16] 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.[^17]

10. **IT IS FURTHER ORDERED** that a copy of this *Forfeiture Order*
    shall be sent by Certified Mail, Return Receipt Requested, and
    regular mail, to Frank R. Truatt at his address of record and to
    counsel for Frank R. Truatt at his address of record.

FEDERAL COMMUNICATIONS COMMISSION

Russell Monie, Jr.

> Regional Director, Northeast Region

Enforcement Bureau

[^1]: 47 C.F.R. §§ 11.35(a), 73.1590(a)(6), and 73.3526(e)(12).

[^2]: *Frank R. Truatt.*, Notice of Apparent Liability for Forfeiture,
    NAL/Acct. No. 200632380007 (Enf. Bur., New York Office, July 19,
    2006) ("*NAL*").

[^3]: *Frank R. Truatt*, Request for Remission and Mitigation of
    Forfeiture (Filed August 17, 2006).

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("*Forfeiture Policy Statement*").

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: *See A-O Broadcasting Corporation*, 2003 WL 23018131 (2003)
    (subsequent citations omitted) para. 25.

[^9]: The twenty percent reduction applied here is consistent with the
    reductions applied in *A-O Broadcasting Corporation* and *Radio One
    Licenses, Inc.*, both of which Truatt relies upon in his response to
    the *NAL* to support a reduction based on his remedial efforts. *See
    A-O Broadcasting Corporation*, 2003 WL 23018131 (rel. Dec. 29,
    2003); *recon. denied*, 20 FCC Rcd 756 (2005)(reducing forfeiture by
    twenty percent for obtaining, but not installing EAS equipment prior
    to FCC inspection) and *Radio One, Inc.*, 18 FCC Rcd 15964 (Enf.
    Bur. 2003), *recon. denied*, 18 FCC Rcd 25481 (reducing forfeiture
    by twenty percent for ordering new EAS equipment prior to FCC
    inspection).

[^10]: *See, e.g., KGB, Inc.*, 13 FCC Rcd 16396, 16398 ¶ 8 (1998)
    (reducing the proposed forfeiture from \$11,500 to \$9,200 for
    airing indecent material due to the broadcast licensee's "history of
    overall compliance prior to these broadcasts, and its apparent lack
    of violations in the period since these broadcasts"); *Max Media of
    Montana, L.L.C.,* 18 FCC Rcd 21375, 21379 ¶ 14 (Enf. Bur. 2003)
    (reducing the proposed forfeiture from \$11,000 to \$8,800 for
    antenna structure lighting and registration violations due to the
    licensee's history of overall compliance); *South Central
    Communications Corp.*, 18 FCC Rcd 700, 702 ¶ 9 (Enf. Bur. 2003)
    (reducing the proposed forfeiture from \$10,000 to \$8,000 for
    antenna structure lighting violations due to the licensee's history
    of overall compliance).

[^11]: *See Seawest Yacht Brokers*, Forfeiture Order, 9 FCC Rcd 6099
    (1994).

[^12]: In support of his request for a reduction based on an inability
    to pay, Truatt initially submitted his personal income tax returns.
    In his response to the *NAL*, however, Truatt reported that, for tax
    purposes, the radio station's operation are under FST Corp., T/A
    WTBQ ("FST"). FCC staff requested tax returns for FST and both sets
    of tax returns were reviewed for purposes of determining whether a
    reduction is warranted.

[^13]: *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.,* 15 FCC Rcd 24385, 24389 ¶ 11 (2000), *recon.
    denied,* 16 FCC Rcd 10023, 10025 ¶ 6 (2001) (forfeiture not deemed
    excessive where it represented approximately 7.9 percent of the
    violator's gross revenues); *Hoosier Broadcasting Corporation,* 14
    FCC Rcd 3356 (CIB 1999), *recon. denied,* 15 FCC Rcd 8640, 8641
    (Enf. Bur. 2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    income).

[^14]: 47 U.S.C. § 503(b).

[^15]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^16]: 47 U. S. C. § 504(a).

[^17]: *See* 47 C.F.R. § 1.1914.