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                 FEDERAL COMMUNICATIONS COMMISSION
                      Washington, D.C. 20554

                                  )
In the Matter of                   )
                                  )
Aracelis Ortiz, Executrix of the   )     File No. EB-02-SD-144
Estate of Carlos Ortiz             )     NAL/Acct. No. 
P.O. Box 530391                    )     200232940008
Harlingen, TX  78553               )     FRN: 0003-7552-87



            NOTICE OF APPARENT LIABILITY FOR FORFEITURE

By the Enforcement Bureau: San Diego Office                                   
Released:  September 30, 2002


                          I. INTRODUCTION

1.   In this Notice of Apparent Liability for Forfeiture (``NAL''), 
  we find  that Aracelis Ortiz,  Executrix of the Estate  of Carlos 
  Ortiz (``Aracelis  Ortiz''), the  licensee of Class  A Television 
  Broadcast  (``Class A'')  station  KCOS-LP  in Phoenix,  Arizona, 
  apparently willfully violated Sections 11.35(a) 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, as amended 
  (``Act'')3,  that   Aracelis  Ortiz  is  apparently   liable  for 
  forfeiture in the amount of fifteen thousand dollars ($15,000).

                          II.  BACKGROUND

2.   On May  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 Class A station KCOS-
  LP.  Station KCOS-LP  was granted status as a Class  A station on 
  April 27, 1999.4   The agent discovered that there  was neither a 
  studio address nor  telephone listing for station  KCOS-LP in any 
  of the telephone directories for  the Phoenix area.  However, the 
  transmitter for  station KCOS-LP, located on  Usery Mountain near 
  Mesa, Arizona, was operating on TV channel 28.

3.   On May  9,  2002,  an agent  at  the  FCC's San  Diego  office 
  telephoned the  licensee in Harlingen,  Texas to obtain  a studio 
  address and  telephone number for KCOS-LP.   No one knowledgeable 
  about KCOS-LP  was available at  that time.  A letter  of inquiry 
  was sent to the licensee on May 10, 2002, requesting the identity 
  of a contact person in  the Phoenix area responsible for KCOS-LP, 
  the address of the local studio  and a local telephone number.  A 
  fax reply was  received by the FCC's San Diego  office on May 20, 
  2002, giving  a telephone number  and an address for  the KCOS-LP 
  studio.   A call  was attempted  to the  KCOS-LP studio,  but the 
  number provided by the licensee was disconnected.  

4.   On June 24, 2002, an  agent from the San  Diego office visited 
  the studio address  provided, 6750 E. Main St.,  Suite 106, Mesa, 
  Arizona.  The agent found no  studio for KCOS-LP at that address.  
  Rather  the transmitter  site management  company was  located at 
  that address.  Employees of  the site management company provided 
  a Phoenix area telephone number for KCOS-LP.

5.   On June 25, 2002,  using the telephone number  provided by the 
  site management  company, the agent reached  Mr. Thomas Norcross, 
  station manager  for KCOS-LP.   Mr. Norcross stated  that KCOS-LP 
  did not  have a  studio in  operation at that  time, but  one was 
  under construction at  3820 E. Main St, Suite  10, Mesa, Arizona.  
  He  also stated  that KCOS-LP  was operating  as a  Low Power  TV 
  station  and  did  not  originate  any  programming,  as  it  was 
  rebroadcasting  programs  received by  an  earth  station at  the 
  transmitter site, atop Usery  mountain.  Mr. Norcross also stated 
  that KCOS-LP  did not  have any EAS  equipment installed  at that 
  time, but would when the studio was completed.

                       III.      DISCUSSION

6.   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.5  The  term ``willful''  as used  in Section 
  503(b)  has been  interpreted to  mean  simply that  the acts  or 
  omissions are committed knowingly.6

7.   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.7   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.8   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.9  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.10

8.   The Rules specifically  require broadcast  stations, including 
  Class A stations,11 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.12  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.13  Based on  the evidence, we find that on 
  June 25, 2002, Aracelis Ortiz willfully violated section 11.35 of 
  the  Rules  by  failing  to  have  EAS  equipment  installed  and 
  operational.  

9.   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.14   Based on  the evidence, we  further find  that on 
  June 25,  2002, Aracelis Ortiz did  not maintain a studio  in the 
  Phoenix area for Station KCOS-LP.

10.  Based on the evidence before us, we  find that Aracelis Ortiz, 
  Executrix  of the  Estate of  Carlos Ortiz,  apparently willfully 
  violated  Sections  11.35(a)  and  73.1125(c) of  the  Rules,  by 
  failing to have EAS  equipment properly installed and operational 
  and  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,15 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.16  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 
  is warranted. 

                       IV.  ORDERING CLAUSES

11.  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, Aracelis Ortiz,  Executrix of the Estate  of Carlos Ortiz, 
  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),  and 73.1125(c) of the  Commission's Rules and 
  Regulations.17

12.  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,  Aracelis Ortiz,  Executrix of the  Estate of 
  Carlos  Ortiz,  SHALL  PAY  the   full  amount  of  the  proposed 
  forfeiture or SHALL FILE a written statement seeking reduction or 
  cancellation of the proposed forfeiture.

13.  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 note the 
  NAL/Account No. 200232940008 and FRN 0003-7552-87.

14.  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. 200232940008. 

15.  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.

16.  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. 20554.18

17.  IT IS FURTHER ORDERED  THAT this NOTICE OF  APPARENT LIABILITY 
  shall be  sent, by certified  mail, return receipt  requested, to 
  Aracelis Ortiz, Executrix of the Estate of Carlos Ortiz, P.O. Box 
  530391, Harlingen, TX  78553.


                                   FEDERAL COMMUNICATIONS 
COMMISSION



                                   William R. Zears Jr.
                                   District Director
                                   San Diego Office 
_________________________

1 47 C.F.R.  11.35(a), and 73.1125(c).
2 47 C.F.R.  73.683.
3 47 U.S.C.  503(b).
4 See BLTTL-19990325JD.
5 47 U.S.C.  503(b).
6 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). 
7 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).
8 47 C.F.R.  11.11 and 11.41.
9 47 C.F.R.  11.1 and 11.21
10 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.
11 47 C.F.R.  11.11.
12 47 C.F.R.  11.35.
13 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.)
14 47 C.F.R.  73.1125(c).
15 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).
16 47 U.S.C.  503(b)(2)(D).
17 47 C.F.R.  0.111, 0.311, 1.80, 11.35, and 73.1125.
18 See 47 C.F.R.  1.1914.