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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Pacific Broadcasting Company )
Licensee of Station KDB (FM) ) File No. EB-02-LA-142
Santa Barbara, California ) NAL/Acct. No. 200232900006
Facility ID # 51169 ) FRN 0003-7476-31
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 30, 2002
By the District Director, Los Angeles Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Pacific Broadcasting Company (``Pacific''), licensee of
station KDB, Santa Barbara, California, apparently willfully violated
Section 11.61 of the Commission's Rules ("Rules")1 by failing to
monitor either of the Local Primary stations (``LP1'' and ``LP2'')
designated in the Emergency Alert System ("EAS") Local Area Plan for
Santa Barbara County, and failing to receive and retransmit required
weekly and monthly EAS tests. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended ("Act"),2 that Pacific
is apparently liable for a forfeiture in the amount of two thousand
2. On February 12, 2002, Agents of the Los Angeles Office
inspected KDB. At the time of inspection, neither the designated LP1
(station KHTY) or LP2 (station KTYD) was being monitored. In fact,
only one source was being monitored in violation of Section 1.6 of the
Santa Barbara County Emergency Alert System Plan which requires that
two local primary sources be monitored. Station KDB was monitoring
the National Weather Service, a recommended additional source but not
a replacement for the designated local primary stations. A thorough
review of the station log for the period beginning January 1, 2002
through February 12, 2002, revealed that station KDB was only
monitoring one source, the National Weather Service (KLOX). The
station logs also revealed that none of the required monthly or weekly
tests from the designated LP1 and LP2 sources had been received or
retransmitted during the period from January 1, 2002 through February
3. Section 503(b) of the Act provides that any person who
willfully fails to comply substantially with the terms and conditions
of any license, or willfully fails to comply with any of the
provisions of the Act or of any rule, regulation or order issued by
the Commission thereunder, shall be liable for a forfeiture penalty.3
The term "willful" as used in Section 503(b) has been interpreted to
mean simply that the acts or omissions are committed knowingly.4
4. The Rules provide that every AM and FM broadcast station is
part of the nationwide EAS network and is categorized as a
participating national EAS source unless the station affirmatively
requests authority to not participate.5 The EAS provides the
President and state and local governments with the capability to
provide immediate and emergency communications and information to the
general public.6 State and local area plans identify local primary
sources responsible for coordinating carriage of common emergency
messages from sources such as the National Weather Service or local
emergency management officials.7
5. The Rules require all broadcast stations to ensure that EAS
encoders, EAS decoders and attention signal generating and receiving
equipment is installed so that the monitoring and transmitting
functions are available during the times the station is in operation.8
The Rules also require AM and FM stations to (a) receive monthly EAS
tests from designated local primary EAS sources and retransmit the
monthly test within 60 minutes of its receipt and (b) conduct tests of
the EAS header and EOM codes at least once a week at random days and
times.9 Based on the evidence before us, we find that on February 12,
2002, Pacific willfully violated Section 11.61 of the Commission's
Rules by failing to monitor the LP1 and LP2 stations as designated in
the EAS Local Area Plan for Santa Barbara County and failing to
receive or retransmit the required monthly and weekly EAS tests.
6. The base forfeiture amount set by The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"),10 and Section 1.80 of the Commissions Rules,11 for EAS
equipment not installed or operational is $8,000. The Forfeiture
Policy Statement does not establish a base forfeiture amount for
violating the Commission's rule requiring the monitoring, receipt and
retransmission of the required monthly and weekly EAS tests from the
designated LP1 and LP2 sources. Therefore we must determine what an
appropriate amount should be for this violation.12 It is necessary to
monitor the designated LP1 and LP2 sources and to receive and
retransmit the required EAS tests from these designated sources to
ensure the operational integrity of the EAS system in the event of an
actual disaster. The requirement that stations monitor, receive and
retransmit the required EAS tests is similar in both nature and
severity to other required operational readiness checks. As failure
to make measurements or conduct required monitoring carries a base
forfeiture amount of $2,000, pursuant to the Forfeiture Policy
Statement, the forfeiture will be assessed in the amount of $2,000.
7. 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 Act,13 which include the nature, circumstances, extent, and
gravity of the violation(s), and with respect to the violator, the
degree of culpability, and history of prior offenses, ability to pay,
and other such matters as justice may require. Applying the
Forfeiture Policy Statement and the statutory factors to the instant
case, a $2,000 forfeiture is warranted.
IV. 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 of the Commission's Rules, Pacific Broadcasting Company
is hereby NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE in the
amount of two thousand dollars ($2,000) for violation of Section 11.61
of the Rules.15
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules16 within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Pacific Broadcasting Company SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
10. 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 must include the FCC Registration Number
(FRN) and the NAL/Acct. No. referenced in the caption.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and Public
Safety Division, 445 12th Street, S.W., Washington, D.C. 20554 and
must include the NAL/Acct. No. referenced in the caption.
12. 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.
13. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.17
14. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY
shall be sent by Certified Mail # 7001 2510 0001 5861 0209, Return
Receipt Requested, to Pacific Broadcasting Company, 23 W. Micheltorena
St., Santa Barbara, California 93101.
FEDERAL COMMUNICATIONS COMMISSION
District Director, Los Angeles Office
1 47 C.F.R. § 11.61.
2 47 U.S.C. § 503(b).
3 47 U.S.C. § 503(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 (1991).
5 47 C.F.R. §§ 11.11 and 11.41.
6 47 C.F.R. §§ 11.1 and 11.21.
7 47 C.F.R. § 11.18. State EAS plans contain guidelines that
must be followed by broadcast and cable personnel, emergency officials
and National Weather Service personnel to activate the EAS for state
and local emergency alerts. The state plans include the EAS header
codes and messages to be transmitted by the primary state, local and
relay EAS sources.
8 47 C.F.R. § 11.35.
9 47 C.F.R. § 11.61. The required monthly and weekly tests are
required to conform with the procedures in the EAS Operational
Handbook. 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.)
10 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
11 47 C.F.R. § 1.80.
12 The fact that the Forfeiture Policy Statement does not
specify a base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that ``any omission
of a specific rule violation from the?[Forfeiture Policy
Statement]?should not signal that the Commission considers any unlisted
violation as nonexistent or unimportant.'' Forfeiture Policy
Statement, 12 FCC Rcd at 17,099. See e.g., American Tower
Corporation, 16 FCC Rcd 1282 (2001).
13 47 U.S.C. § 503(b)(2)(D).
14 47 U.S.C. § 503(b).
15 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.61.
16 47 C.F.R. § 1.80.
17 See 47 C.F.R. § 1.1914.