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FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of
Radio Stations KDJI (AM) & KZUA (FM) )
Navajo Broadcasting Company, Inc. )
222 Navajo Boulevard ) NAL/Acct No.
Holbrook, AZ 86025 ) Case No. EB-01-SD-138
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 2, 2001
Released: November 2, 2001
By the Enforcement Bureau: San Diego Office
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find Navajo Broadcasting Company, Inc. (Navajo Broadcasting),
licensee of radio stations KDJI (AM) and KZUA (FM) at Holbrook,
Arizona, has apparently violated Section 503(b) of the
Communications Act of 1934,1 as amended (``Act''), and has
apparently willfully and repeatedly violated Section 11.35(a) and
Section 11.61 of the Commission's Rules and Regulations
(``Rules'')2 by failing to ensure that Emergency Alert System
(EAS) equipment was installed and operating, and by failing to
receive or retransmit weekly and monthly EAS tests at stations
KDJI(AM) and KZUA(FM). We conclude that Navajo Broadcasting
Company, Inc., is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000).
2. On July 25, 2001, agents from the Federal Communications
Commission (FCC) San Diego office attempted to conduct an
inspection of EAS equipment and records at co-located radio
stations KDJI and KZUA. Neither station KDJI nor station KZUA
had any EAS equipment at the station. Because no EAS equipment
was installed, the stations were unable to monitor EAS
transmissions from other sources, unable to originate EAS
transmissions and unable to retransmit EAS transmissions. In
addition, no EAS records were maintained at the station, or made
available for inspection. Mr. Roy Roberts, the owner and
president of Navajo Broadcasting advised the agents that neither
station KDJI nor station KZUA had any EAS equipment at the
station. The Arizona EAS State Plan, however, had station KZUA
designated as the second local primary (LP-2) station for the
Holbrook EAS local area, which includes the counties of Navajo
3. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or 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. The term ``willful'' as used in Section
503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly.4 It is not pertinent whether
or not the licensee's act or omissions are intended to violate
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 (``LP'') sources responsible for
coordinating carriage of common emergency messages from sources
such as the National Weather Service or local emergency
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 15 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
6. The designated local primary EAS sources have additional
responsibilities. During local emergencies, other radio stations
must monitor the two designated local primary EAS sources
assigned in the State and Local Area plan.10 Local primary
sources must also originate the monthly tests of the EAS that are
required by the Rules to be retransmitted by other broadcast
stations within 15 minutes of receipt.11
7. Based on the evidence before us, we find that on July 25, 2001,
Navajo Broadcasting willfully and repeatedly violated Sections
11.35(a) and 11.61 of the Rules, by failing to have EAS equipment
installed so that monitoring and transmitting functions were
available and by failing to conduct the required monthly and
weekly EAS tests. We further find that station KZUA failed to
conduct its responsibilities as a designated second local primary
station to coordinate the carriage of common emergency messages,
provide a local EAS monitoring source, and transmit monthly EAS
tests. Pursuant to The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, (Forfeiture Policy Statement),12 the base
forfeiture amount for EAS equipment not installed or operational
is $8,000. In assessing the monetary forfeiture amount, we must
also take into account 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, any history
of prior offenses, ability to pay, and other such matters as
justice may require. We believe that Navajo Broadcasting's
failure to procure, install and maintain any EAS equipment for
over four years is particularly egregious in view of the
designation of station KZUA as a second local primary EAS station
in the Arizona State EAS plan. Accordingly, an upward adjustment
of $2,000 is warranted. Applying the Forfeiture Policy Statement
and statutory factors to the instant case, a $10,000 forfeiture
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b)
of the Act, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules,14 Navajo
Broadcasting Company, Inc., is hereby NOTIFIED of their APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for violating Sections 11.35(a) and 11.61 of the
Commission's Rules and Regulations.15
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Rules, within thirty days of the release date of this NOTICE OF
APPARENT LIABILITY, Navajo Broadcasting Company, Inc., 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 should note the
NAL/Account No. 200232940001.
11. The response, if any, must be mailed to Federal
Enforcement Bureau, Technical and Public Safety Division, 445 12th
Street, S.W., Washington, DC 20554 and MUST INCLUDE THE NAL/Acct.
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; 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, Credit and Debt Management Center, 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, return receipt requested, to
Navajo Broadcasting Company, Inc., 222 Navajo Boulevard, Holbrook,
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
San Diego Office
1 47 U.S.C. 503(b).
2 47 C.F.R. §§ 11.35(a) and 11.61.
3 State of AZ, Emergency Alert System Operational Plan.
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provide 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. § 1161. The required monthly and weekly tests are
required to conform with the procedures in the EAS Operational
10 47 C.F.R. § 11.54.
11 47 C.F.R. § 11.61(a)(1).
12 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)
(``Forfeiture Policy Statement'').
13 47 U.S.C. § 503(b)(2)(D).
14 47 C.F.R. §§ 0.111, 0.311, 1.80.
15 47 C.F.R. §§ 11.35(a) and 11.61.
17 47 C.F.R. § 1.1914.