**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  | File No. EB-02-OR-355        |
|                                  | *) |                              |
| Pearson Broadcasting of Mena,    | ** | NAL/Acct. No. 200332620007   |
| Inc.                             |    |                              |
|                                  | *  | FRN No. 0003-7795-68         |
| Licensee of KTTG(FM)             | *) |                              |
|                                  | ** |                              |
| Mena, Arkansas                   |    |                              |
|                                  | *  |                              |
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|                                  | ** |                              |
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|                                  | *  |                              |
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|                                  | ** |                              |
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+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: July 29, 2004 Released: August 2, 2004**

By the Chief, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of one thousand six hundred dollars
    (\$1,600) to Pearson Broadcasting of Mesa, Inc. ("Pearson"),
    licensee of FM Station KTTG, Mena, Arkansas, for willful and
    repeated violation of Section 11.61 of the Commission's Rules
    ("Rules").[^1] The noted violation involves Pearson's failure to
    receive and transmit required weekly and monthly tests of the
    Emergency Alert System ("EAS").

2.  On February 18, 2003, the Commission's New Orleans District Office
    ("New Orleans Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Pearson for a forfeiture in the amount of
    two thousand dollars (\$2,000).[^2] Pearson filed a response to the
    *NAL* on May 12, 2003.

# BACKGROUND

3.  On November 6, 2002, a New Orleans Office agent inspected Pearson's
    Station KTTG. The agent inspected the printed record in KTTG's EAS
    unit and determined that the station had neither received nor
    transmitted required weekly EAS tests ("RWT") for the period June
    23, 2002 to August 11, 2002. In addition, the New Orleans agent
    noted that KTTG had neither received nor transmitted required
    monthly EAS tests ("RMT") during the same time period. The agent
    requested KTTG's station logs for EAS tests but the station could
    not produce them. The station manager stated to the New Orleans
    Office agent that he did not know the last time that KTTG had aired
    an EAS test. Neither the station manager nor anyone else present at
    the station was able to run a test at the agent's request.

4.  The KTTG EAS unit's continuous record covered only the period of
    June 23, 2002 to August 11, 2002. The station manager stated that he
    believed the EAS unit was malfunctioning and that the station
    engineer had been notified. The New Orleans Office agent found no
    entries in the station's log to reflect the EAS operations,
    malfunctions, or dates the unit was not operational.

5.  On February 18, 2003, the New Orleans Office issued a *NAL* to
    Pearson for two thousand dollars (\$2,000) for its failure to
    conduct the required RWTs and RMTs in willful and repeated violation
    of Section 11.61 of the Rules. Pearson responds to the *NAL* denying
    that it willfully violated Section 11.61 of the Rules. Pearson
    states that responsibility for oversight of EAS compliance was
    assigned to the station engineer, and that shortly prior to the New
    Orleans Office agent's inspection, the KTTG engineer had been
    terminated. Pearson avers the station logs did exist and were last
    seen in the possession of the engineer. Pearson argues that its
    violation was not conscious and deliberate but was due to the
    "dereliction of duties" by its contract engineer, and that Pearson
    was in the process of taking corrective action at the time of the
    New Orleans Office inspection. Pearson explains that it has replaced
    the engineer with an individual who is certified by the Commission
    to conduct EAS and other facility inspections, who is a member of
    the Arkansas Broadcasters Association and the author of the EAS
    guidelines for Arkansas Broadcasters. Finally, Pearson requests
    relief from the forfeiture due to inability to pay, and provides
    financial information in support of its request.

# discussion

6.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended, ("Act"),[^3] Section 1.80 of the Rules,[^4] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC
    Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999) ("*Policy
    Statement*"). In examining Pearson's response, 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 such other matters as justice may
    require.[^5]

7.  Section 11.61 of the Rules requires tests to be made at regular
    intervals as specified in paragraphs (a)(1) and (a)(2) of that
    section. In particular, Section 11.61(a)(1) requires monthly tests
    of the EAS header codes, attention signal, test script and End of
    Message ("EOM") codes. Section 11.61(a)(2) requires weekly tests of
    the EAS header codes and EOM codes. At the time of the inspection on
    November 6, 2002, Pearson's EAS equipment record showed that no
    tests had been conducted during the period of June 23, 2002 to
    August 11, 2002. Pearson does not dispute that it failed to conduct
    tests during this time period. Accordingly, we conclude that Pearson
    willfully[^6] and repeatedly[^7] violated Section 11.61 of the
    Rules.

8.  Pearson argues that its violation of Section 11.61 was not willful
    because it was the act of a station engineer who was terminated
    prior to the New Orleans Office agent's inspection. We find this
    argument to be without merit. "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."[^8] We will, however, reduce the forfeiture
    from \$2000 to \$1600 because of Pearson's good faith efforts to
    correct the violation prior to the New Orleans Office agent's
    inspection.[^9]

9.  Pearson also seeks relief from the forfeiture because of losses the
    parent corporation and the station itself sustained in three years
    of operations.[^10] Operating losses are not a basis for reduction
    or cancellation of a forfeiture, however. The Commission has
    determined that, in general, a licensee's gross revenues are the
    best indicator of its ability to pay a forfeiture.[^11] After
    reviewing the financial data submitted, we find that the proposed
    forfeiture amount should not be reduced or cancelled on the basis of
    financial hardship. [^12]

10. We have examined Pearson's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that
    Pearson willfully and repeatedly violated Section 11.61 of the
    Rules, but we conclude that a reduction of the forfeiture amount is
    warranted. We will reduce the two thousand dollar (\$2,000) monetary
    forfeiture to one thousand six hundred dollars (\$1,600) because
    Pearson acted in good faith by taking action to correct the
    violation prior to the New Orleans Office agent's inspection.

# ordering clauses

11. 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,[^13]
    Pearson Broadcasting of Mena, Inc. **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of one thousand six hundred dollars
    (\$1,600) for its willful and repeated violation of Section 11.61 of
    the Rules.

12. Payment of the 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.[^14] Payment may be made by
    mailing a check or similar instrument, payable to the order of the
    Federal Communications Commission, to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should reference NAL/Acct. No. 200332620007 and FRN No.
    0003-7795-68. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^15]

13. IT **IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to
    Pearson Broadcasting of Mena, Inc., 2937 Highway 71 North, Mena,
    Arkansas 71953.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 11.61.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332620007 (Enf. Bur., New Orleans Office, rel. February 18,
    2003).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 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,' ... means
    the conscious and deliberate commission or omission of such act,
    irrespective of any intent to violate any provision of this Act or
    any rule or regulation of the Commission authorized by this Act
    ...." *Southern California Broadcasting Co*., 6 FCC Rcd 4387 (1991).

[^7]: As provided by 47 U.S.C. § 312(f)(2), "\[t\]he 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."
    The *Conference Report* for Section 312(f)(2) indicates that
    Congress intended to apply this definition to Section 503 of the Act
    as well as Section 312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51
    (1982). *Southern California Broadcasting Co., supra.*

[^8]: *Eure Family Limited Partnership,* 17 FCC Rcd 21861, 21863-64
    (2002) and cases cited therein.

[^9]: *Radio One Licenses, Inc*., 18 FCC Rcd 15964, 15965 ¶ 4 (2003),
    *recon. denied*, 18 FCC Rcd 25481 (2003).

[^10]: When assessing the solvency of a licensee for purposes of
    reducing a forfeiture, the Commission examines the finances of the
    parent corporation, as well as its subsidiary, to determine how the
    forfeiture will financially affect the entire corporate position,
    *Alpha Broadcasting Corporation*, 102 FCC 2d 18 ¶ 6 (1984),.

[^11]: *PJB Communications of Virginia, Inc.,* 7 FCC Rcd 2088, 2089
    (1992). Our evaluation of Pearson's ability to pay necessitates a
    review of the revenues of not only the Pearson, but of its parent
    company, Pearson Broadcasting Management Services, Inc., as well,
    *see* *American Family Association,* 18 FCC Rcd 2413, 2424-15 ¶ 6
    (Enf. Bur. 2003).

[^12]: *Id.* at 2089 (forfeiture not deemed excessive where it
    represented approximately 2.02 percent of the violator's gross
    revenues); *Hoosier Broadcasting Corporation*, 15 FCC Rcd 8640, 8641
    (Enf. Bur. 2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    revenues); *Afton Communications Corp.*, 7 FCC Rcd 6741 (Com. Car.
    Bur. 1992) (forfeiture not deemed excessive where it represented
    approximately 3.9 percent of the violator's gross revenues).

[^13]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^14]: 47 U.S.C. § 504(a).

[^15]: *See* 47 C.F.R. § 1.1914.