Click here for Adobe Acrobat version
Click here for Microsoft Word version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************





                            Before the
                 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. 
200232940001
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


                         I.   INTRODUCTION

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).


                          II.  BACKGROUND

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 
  and Apache.3 


                       III.      DISCUSSION

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 
  the law.

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 
  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 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 
  is warranted.


                       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 
forfeiture.

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 
Communications Commission,
Enforcement Bureau, Technical and Public Safety  Division, 445 12th 
Street, S.W., Washington, DC  20554 and MUST INCLUDE  THE NAL/Acct. 
No. 200232940001. 

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, 
AZ  86025.



                         FEDERAL COMMUNICATIONS COMMISSION



                         William R. Zears Jr.
                         District Director
                         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 
Handbook.
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.