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FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-SD-075
Blue Skies Broadcasting Corp. ) NAL/Acct. No.
Licensee of Station KSKT-CA ) 200232940006
San Marco, California ) FRN: 0003-7774-06
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 31, 2002
By the Enforcement Bureau: San Diego Office
1. In this Notice of Apparent Liability for Forfeiture (``NAL''),
we find that Blue Skies Broadcasting Corp. (``Blue Skies''), the
licensee of Class A Television Broadcast (``Class A'') station
KSKT-CA in San Marcos, California, apparently willfully violated
Sections 11.35(a), 11.61 and 73.1125(c) of the Commission's Rules
and Regulations (``Rules''),1 by failing to ensure that required
Emergency Alert System (``EAS'') equipment was operational and
failing to establish a main studio at a location within the
station's predicted Grade B contour (as outlined in Section
73.683 of the Rules).2 We conclude, pursuant to Section 503(b)
of the Communications Act of 1934,3 as amended (``Act''), that
Blue Skies, is apparently liable for forfeiture in the amount of
fifteen thousand dollars ($15,000).
2. On March 6, 2002, an agent from the Federal Communications
Commission's (``FCC'') San Diego office attempted to conduct a
routine inspection of the EAS equipment of station KSKT-CA. The
agent discovered that there was niether a studio address nor
telephone listing for station KSKT-CA in any of the telephone
directories for the City of San Marcos or for San Diego County.
However, the transmitter for station KSKT-CA was operational on
TV channel 43 and was located atop Mount Woodson near Ramona,
California, as authorized.
3. On March 8, 2002, the agent telephoned Mr. Robert Ruiz,
President of Blue Skies, at a Woodland Hills, California
telephone number provided in the last application filed by Blue
Skies. Mr. Ruiz stated that there was no local studio and no
local telephone number for KSKT-CA. A main studio had been
maintained in Poway, California, but Mr. Ruiz said that it was
closed in December of 2001 due to financial problems experienced
by Blue Skies. Mr. Ruiz stated that when the main studio closed,
the station's EAS equipment was also taken out of service. Mr.
Ruiz admitted that station KSKT-CA had neither conducted the
required weekly and monthly EAS transmit and receive tests nor
had any operational EAS equipment in service since the closure of
the KSKT-CA studio.
4. On April 12, 2002, agents from the San Diego office conducted
an inspection of the transmitter site of station KSKT-CA on Mount
Woodson in California. The EAS equipment had been installed by
that time at the transmitter site. However, the EAS equipment
was not capable of receiving or transmitting the required weekly
or monthly EAS tests from either of the local stations designated
in the local San Diego County EAS Plan. Rather, KSKT-CA had only
one module installed that was tuned to the local NOAA Weather
Service radio station. Blue Skies had no logs of any EAS test
received or retransmitted since KSKT became a Class A station in
August of 2001.
5. 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.4 The term ``willful'' as used in Section
503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly.5
6. Commission licensees are responsible for familiarizing
themselves and complying with applicable statutes and Commission
Rules and policies, regardless of the length of time the licensee
has been engaged in broadcasting.6 The Rules provide that every
broadcast station, including a Class A television 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.7 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.8 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
7. The Rules specifically require broadcast stations, including
Class A stations,10 to install and make operational EAS equipment
(encoders, decoders, attention signal generators and receivers)
so that monitoring and transmitting functions are available
during the times whenever the station is in operation.11 The
Rules also require broadcast 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.12 Based on the evidence, we find that
Blue Skies willfully violated sections 11.35 and 11.61 of the
Rules by failing to have any EAS equipment installed or
operational from December of 2001 through at least March 8, 2002
and by failing to have EAS equipment installed that is capable of
monitoring, receiving and retransmitting the required monthly and
weekly EAS test.
8. The Rules also require broadcast stations, including Class A
stations, to establish and maintain a main studio to serve the
needs and interests of the residents of the station's community
of license.13 Based on the evidence, we further find that Blue
Skies chose to discontinue maintenance of a main studio in
December of 2001 and has since failed to maintain a main studio
for station KSKT-CA.
9. Based on the evidence before us, we find that Blue Skies
Broadcasting Corp., willfully violated Sections 11.35(a), 11.61,
and 73.1125(c) of the Rules, by failing to have EAS equipment
properly installed and operational and failing to monitor,
receive and retransmit required monthly and weekly EAS tests, and
by failing to maintain a main studio. Pursuant to The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines,14 the
base forfeiture amount for EAS equipment not installed or
operational is $8,000 and for not maintaining a main studio is
$7,000. 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, 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.15 In applying Section 1.80(b)(4) of the Rules and the
statutory factors to the instant case, we find no compelling
evidence to support any adjustments to the base forfeiture
amounts. Therefore, a total forfeiture in the amount of $15,000
IV. ORDERING CLAUSES
10. 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, Blue Skies Broadcasting Corp., is hereby NOTIFIED of their
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen
thousand dollars ($15,000) for violating Sections 11.35(a), 11.61
and 73.1125(c) of the Commission's Rules and Regulations.16
11. 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, Blue Skies Broadcasting Corp., SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
12. 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. 200232940006 and FRN 0003-7774-06.
13. 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. 200232940006.
14. 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.
15. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Chief, Revenue and Receivable Operation Group, 445 12th Street,
S.W., Washington, D.C. 20554.17
16. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY
shall be sent, by certified mail, return receipt requested, to
Blue Skies Broadcasting Corp., 5220 Campo Rd., Woodland Hills,
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
San Diego Office
1 47 C.F.R. §§ 11.35(a), 11.61, and 73.1125(c).
2 47 C.F.R. § 73.683.
3 47 U.S.C. § 503(b).
4 47 U.S.C. § 503(b).
5 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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).
6 See Bay Television, Inc., 10 FCC Rcd 11509 (1995) (rejecting
licensee's request for lenient treatment because it had been on the
air for barely six months.); Radio One Licensees, Inc., Memorandum
Opinion and Order, DA 02-219 (Enf. Bur. Jan 31, 2002) (rejecting
licensee's request for lenient treatment because the station had
been acquired less than six months before, noting also that the
licensee was an experienced broadcaster).
7 47 C.F.R. §§ 11.11 and 11.41.
8 47 C.F.R. §§ 11.1 and 11.21
9 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.
10 47 C.F.R. § 11.11.
11 47 C.F.R. § 11.35.
12 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.)
13 47 C.F.R. § 73.1125(c)
14 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).
15 47 U.S.C. § 503(b)(2)(D).
16 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35, 11.61 and 73.1125.
17 See 47 C.F.R. § 1.1914.