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FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
Certified Mail #7001 0320 0002 9838 7448
Return Receipt Requested
In the Matter of
New Wave Broadcasting, L.P. )
Licensee of Radio Station KPOI-FM ) File No. EB-02-HL-
1833 Kalakaua Avenue, Suite 500 ) NAL/Acct No. 200232860001
Honolulu, Hawaii 96815 ) FRN # 0005-3920-22
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 16, 2002
By the Enforcement Bureau: Honolulu Resident Agent Office
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that New Wave Broadcasting, L.P., (``New
Wave''), licensee of station KPOI-FM, Honolulu, Hawaii, has
apparently willfully and repeatedly violated Section
11.61(a)(1)(v) of the Commission's Rules,1 by failing to
retransmit the Emergency Alert System (``EAS'') Required Monthly
Test (``RMT''). We conclude, pursuant to Section 503(b) of the
Communications Act, as amended (``Act''),2 that New Wave is
apparently liable for a forfeiture in the amount of two thousand
2. On June 1, 2001, an Agent of the FCC's Honolulu
Resident Agent Office monitored radio station KPOI-FM on 97.5
MHz, between the times of 11:15 a.m. HST and 12:00 p.m. HST. The
Agent observed that KPOI-FM did not retransmit the EAS RMT
initiated by the Hawaii State Civil Defense at approximately
11:15 a.m. HST.
3. An Official Notice of Violation (``NOV'') was issued on
June 4, 2001 to New Wave for failure to retransmit the EAS RMT
within fifteen minutes of receipt, in violation of Section
11.61(a)(1)(v) of the Commission's Rules.3 New Wave responded to
the NOV on June 15, 2001, admitted that they violated Section
11.61(a)(1)(v) due to an operator error, and stated that action
was being taken to ensure all personnel were aware of proper EAS
4. Ten months later, on April 1, 2002, an Agent of the
FCC's Honolulu Resident Agent Office again monitored radio
station KPOI-FM on 97.5 MHz, between the times of 11:10 a.m. HST
and 12:30 p.m. HST. The Agent observed that KPOI-FM did not
retransmit the EAS RMT initiated by the Hawaii State Civil
Defense at approximately 11:14 a.m. HST.
5. On April 3, 2002, an Agent of the FCC's Honolulu
Resident Agent Office inspected radio station KPOI-FM, located at
1833 Kalakaua Avenue, Suite 500, Honolulu, Hawaii. During the
inspection, the Agent requested that the operator on duty
transmit a Required Weekly Test (``RWT'') to ensure the EAS unit
was working properly. The operator attempted to initiate the
RWT, but was unable to transmit the test on 97.5 MHz due to
improperly set audio levels.
6. 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.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 The term ``repeated'' means
the commission or omission of an act more than once.6
7. Section 11.61(a)(1)(v) of the Commission's Rules
requires that monthly EAS tests be retransmitted within 15
minutes of receipt by broadcast stations in an EAS Local Area or
State.7 Based on the evidence before us, we find that on June 1,
2001 and April 1, 2002, New Wave willfully and repeatedly
violated Section 11.61(a)(1)(v) of the Commission's Rules8 by
failing to retransmit the EAS monthly test. In addition, we find
that the KPOI-FM EAS encoder was functionally inoperative at the
time of inspection on April 3, 2002, as it was initially unable
to generate an over-the-air EAS test.
8. 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'')9, the base forfeiture amount for failure to have EAS
equipment installed or operational is $8,000. The Forfeiture
Policy Statement does not establish a base forfeiture amount for
violating the Commission's rule requiring timely retransmission
of the monthly EAS tests. Therefore we must determine what an
appropriate amount should be for this violation.10 It is
necessary to retransmit the monthly EAS tests to ensure the
operational integrity of the EAS system in the event of an actual
disaster. The requirement that stations retransmit the monthly
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
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,11 and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules,12 New
Wave Broadcasting, L.P., is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of two thousand dollars
($2,000) for violating Section 11.61(a)(1)(v) of the Commission's
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules,14 within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY New Wave Broadcasting, L.P.,
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
11. 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/Acct. No. 200232860001 and the FRN # 000 5-3920-22.
12. 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. 200232860001.
13. 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.
14. 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 Operation Group, 445 12th
Street, S.W., Washington, D.C. 20554.15
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to New Wave Broadcasting, L.P. at 1833 Kalakaua Avenue,
Suite 500, Honolulu, Hawaii 96815.
FEDERAL COMMUNICATIONS COMMISSION
Ryan T. Hagihara
Honolulu Resident Agent
1 47 C.F.R § 11.61(a)(1)(v).
2 47 U.S.C. § 503(b).
3 47 C.F.R § 11.61(a)(1)(v).
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 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 or any rule or regulation of the Commission authorized
by this Act....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
6 47 U.S.C. §312(f)(2).
7 47 C.F.R § 11.61(a)(1)(v). Effective May 16, 2002, the
Commission's Rules require monthly EAS tests to be retransmitted
within 60 minutes of receipt of the required monthly test
message. 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,
8 47 C.F.R § 11.61(a)(1)(v).
9 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
10 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).
11 47 U.S.C. § 503(b).
12 47 C.F.R. §§ 0.111, 0.311, 1.80.
13 47 C.F.R. § 11.61(a)(1)(v).
14 47 C.F.R. § 1.80.
15 See 47 C.F.R. § 1.1914.