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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of               )
                              )
Big Island Radio               )        File Number:  EB-03-HL-035
                              )
Licensee of FM Broadcast       )        NAL/Acct. No. 200432860002
Station KHWI                   )                   FRN  0004979464
Hilo, Hawaii



           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                        Released:  March 11, 2004 

By the Honolulu Office, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
("NAL"), we find  that Big Island  Radio, (``Big Island  Radio'') 
licensee of  station KHWI(FM)  in  Hilo, Hawaii,  has  apparently 
repeatedly violated Sections  11.35(a) and 11.61  of the  Federal 
Communications  Commission's  Rules  (``Rules'')  by  failing  to 
conduct  required  weekly  and  monthly  Emergency  Alert  System 
(``EAS'') tests,  and  failing  to determine  the  cause  of  the 
failures to receive the  required EAS tests  and log the  reasons 
why the EAS tests were  not received.1  We conclude, pursuant  to 
Section 503(b)  of the  Communications Act  of 1934,  as  amended 
(``Act''),2 that  Big Island  Radio is  apparently liable  for  a 
forfeiture in the amount two thousand dollars ($2,000).

                    II.  BACKGROUND

     2.             On May  1,  2003, agents  from  the  Honolulu 
Office monitored KHWI, 92.7 MHz, from 11:10 a.m. until 12:20 p.m. 
HST.  During  this  period,  KHWI  did  not  retransmit  the  EAS 
Required Monthly  Test  (``RMT''),  issued by  the  Hawaii  Civil 
Defense at approximately  11:14 a.m. HST.   Later that same  day, 
the agents inspected the KHWI main studio at 688 Kinoole  Street, 
Hilo, Hawaii.  KHWI shared a single TFT EAS Encoder/Decoder  unit 
with seven other radio stations, also owned by Big Island  Radio.  
The shared EAS  unit automatically activated  seven of the  eight 
stations.  The  eighth station,  KHWI,  was activated  through  a 
manual override switch on the EAS unit.  The agents observed that 
the  shared  EAS  unit  was  monitoring  only  a  single  source, 
NOAA/Civil Defense, at the time of inspection.  

     3.             The EAS logs indicated that the May 1,  2003, 
RMT was  successfully  retransmitted  for  all  of  the  stations 
sharing the unit, but the agents observed during monitoring  that 
the RMT  was  not retransmitted  by  KHWI.  The  station's  chief 
operator indicated the manual override  for KHWI failed to  occur 
on May 1, 2003.  The EAS logs also revealed that the RMT was  not 
received or retransmitted in March  2003, or April 2003, and  EAS 
Required Weekly Tests  (``RWT'') were not  received or  conducted 
between January  2003, and  April 2003.   There were  no EAS  log 
entries to indicate that the cause of the failure to receive  and 
conduct the required tests was investigated.   

                 III.                DISCUSSION

     4.             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 willfully  or 
repeatedly 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.3  The  term 
"willful" as used in Section 503(b) has been interpreted to  mean 
simply that the acts or omissions are committed knowingly.4   The 
term "repeated" means the commission or omission of such act more 
than once or for more than one day.5  

     5.             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.6  
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.7  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.8 

     6.   Section 11.35(a) of  the Rules  requires all  broadcast 
stations to ensure that EAS encoders, EAS decoders and  attention 
signal  generating  and  receiving  equipment  is  installed  and 
operational so that the monitoring and transmitting functions are 
available  during  the  times   the  station  is  in   operation.  
Broadcast stations must also determine  the cause of any  failure 
to receive  required  monthly  and weekly  EAS  tests,  and  must 
indicate in the  station's log  why any required  tests were  not 
received and when defective equipment is removed and restored  to 
service.9  Section 11.61 of the Rules requires AM 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.10  The  requirement 
that stations monitor,  receive and retransmit  the required  EAS 
tests ensures the operational integrity of the EAS system in  the 
event of an actual disaster.  Based on the evidence before us, we 
find that Big Island Radio repeatedly violated Sections  11.35(a) 
and 11.61 of the Rules by failing to conduct required weekly  and 
monthly EAS  tests, and  failing to  determine the  cause of  the 
failures to receive the  required EAS tests  and log the  reasons 
why the EAS tests were not received.  

     7.   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''),11 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.12    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 base  forfeiture 
amount for failure to retransmit EAS tests is set at $2,000.   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 Act13, which  includes the nature, circumstances,  extent, 
and  gravity  of  the  violation(s),  and  with  respect  to  the 
violator,  the  degree  of  culpability,  and  history  of  prior 
offenses, ability to pay, and  other such matters as justice  may 
require.   Applying  the  Forfeiture  Policy  Statement  and  the 
statutory factors to  the instant  case, a  $2,000 forfeiture  is 
warranted 

                      IV.  ORDERING CLAUSES

     8.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of  the  Communications  Act  of  1934,  as  amended,  and 
Sections 0.111, 0.311  and 1.80  of the  Commission's Rules,  Big 
Island Radio, is hereby NOTIFIED of its APPARENT LIABILITY FOR  A 
FORFEITURE in the  amount of  two thousand  dollars ($2,000)  for 
violations of Sections 11.35(a) and 11.61 of the Rules.14

     9.   IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Commission's Rules, within thirty days of the release date of 
this NOTICE OF APPARENT LIABILITY, Big Island Radio 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/Acct. No. and FRN No. referenced in the caption.

     11.  The  response,  if  any,  must  be  mailed  to  Federal 
Communications   Commission,    Enforcement   Bureau,    Spectrum 
Enforcement Division,  445 12th  Street, S.W.,  Washington,  D.C. 
20554 and  MUST  INCLUDE  THE NAL/Acct.  No.  referenced  in  the 
caption.  

     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  (``GAAP''); 
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,  Revenue and  Receivables Operations  Group, 445  12th 
Street, S.W., Washington, D.C. 20554.15 

     14.  Under the Small Business Paperwork Relief Act of  2002, 
Pub L. No.  107-198, 116 Stat.  729 (June 28,  2002), the FCC  is 
engaged in  a two-year  tracking process  regarding the  size  of 
entities involved  in forfeitures.   If you  qualify as  a  small 
entity and  if you  wish to  be  treated as  a small  entity  for 
tracking purposes, please  so certify  to us  within thirty  (30) 
days of this  NAL, either in  your response  to the NAL  or in  a 
separate filing to be sent to the Spectrum Enforcement  Division.  
Your certification should  indicate whether  you, including  your 
parent entity and its subsidiaries,  meet one of the  definitions 
set  forth  in  the  list   provided  by  the  FCC's  Office   of 
Communications  Business  Opportunities   (OCBO)  set  forth   in 
Attachment  A  of  this  Notice  of  Apparent  Liability.    This 
information will  be  used  for  tracking  purposes  only.   Your 
response or  failure to  respond to  this question  will have  no 
effect on your  rights and responsibilities  pursuant to  Section 
503(b)  of  the  Communications  Act.   If  you  have   questions 
regarding any  of  the  information contained  in  Attachment  A, 
please contact OCBO at (202) 418-0990.

     15.   IT IS FURTHER  ORDERED THAT a copy  of this NOTICE  OF 
APPARENT LIABILITY shall be  sent by Certified  Mail # 7001  0320 
0002 9837 2291,  Return Receipt Requested,  to Big Island  Radio, 
2447 Makiki Heights Drive, Honolulu, Hawaii 96822.


                              FEDERAL COMMUNICATIONS COMMISSION

                         

                              Ryan Hagihara
                              Resident Agent, Honolulu Office

                FCC List of Small Entities

   As described below, a ``small entity'' may be a small 
                       organization,
  a small governmental jurisdiction, or a small business.

(1)  Small Organization 
Any not-for-profit enterprise that is independently owned 
and operated and 
is not dominant in its field.

  
(2)  Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages, 
school districts, or 
special districts, with a population of less than fifty 
thousand.


(3)  Small Business
Any business concern that is independently owned and 
operated and 
is not dominant in its field, and meets the pertinent size 
criterion described below.
  

      Industry Type          Description of Small Business 
                                     Size Standards
                 Cable Services or Systems
                            Special Size Standard - 
Cable Systems                Small Cable Company has 400,000 
                            Subscribers Nationwide or Fewer
Cable and Other Program 
Distribution                     $12.5 Million in Annual 
                                    Receipts or Less

Open Video Systems 
       Common Carrier Services and Related Entities
Wireline Carriers and 
Service providers 
                                1,500 Employees or Fewer
Local Exchange Carriers, 
Competitive Access 
Providers, Interexchange 
Carriers, Operator Service 
Providers, Payphone 
Providers, and Resellers


Note:  With the exception of Cable Systems, all size 
standards are expressed in either millions of dollars or 
number of employees and are generally the average annual 
receipts or the average employment of a firm.  Directions 
for calculating average annual receipts and average 
employment of a firm can be found in 
13 CFR 121.104 and 13 CFR 121.106, respectively.





                  International Services
International Broadcast 
Stations






                                $12.5 Million in Annual 
                                    Receipts or Less
International Public Fixed 
Radio (Public and Control 
Stations)
Fixed Satellite 
Transmit/Receive Earth 
Stations
Fixed Satellite Very Small 
Aperture Terminal Systems
Mobile Satellite Earth 
Stations
Radio Determination 
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space 
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
                    Mass Media Services
Television Services

                             $12 Million in Annual Receipts 
                                        or Less
Low Power Television 
Services and Television 
Translator Stations
TV Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Radio Services
                             $6 Million in Annual Receipts 
                                        or Less
Radio Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Multipoint Distribution      Auction Special Size Standard -
Service                      Small Business is less than 
                            $40M in annual gross revenues 
                            for three preceding years
          Wireless and Commercial Mobile Services
Cellular Licensees
                                1,500 Employees or Fewer
220 MHz Radio Service - 
Phase I Licensees
220 MHz Radio Service -      Auction special size standard -
Phase II Licensees           Small Business is average gross 
                            revenues of $15M or less for 
                            the preceding three years 
                            (includes affiliates and 
                            controlling principals)
                            Very Small Business is average 
                            gross revenues of $3M or less 
                            for the preceding three years 
                            (includes affiliates and 
                            controlling principals)
700 MHZ Guard Band Licensees


Private and Common Carrier 
Paging
Broadband Personal 
Communications Services          1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal           Auction special size standard -
Communications Services      Small Business is $40M or less 
(Block C)                    in annual gross revenues for 
                            three previous calendar years
                            Very Small Business is average 
                            gross revenues of $15M or less 
                            for the preceding three 
                            calendar years (includes 
                            affiliates and persons or 
                            entities that hold interest in 
                            such entity and their 
                            affiliates)
Broadband Personal 
Communications Services 
(Block F)
Narrowband Personal 
Communications Services


Rural Radiotelephone Service     1,500 Employees or Fewer
Air-Ground Radiotelephone 
Service
800 MHz Specialized Mobile   Auction special size standard -
Radio                        Small Business is $15M or less 
                            average annual gross revenues 
                            for three preceding calendar 
                            years
900 MHz Specialized Mobile 
Radio
Private Land Mobile Radio        1,500 Employees or Fewer
Amateur Radio Service                      N/A
Aviation and Marine Radio 
Service                          1,500 Employees or Fewer
Fixed Microwave Services
                            Small Business is 1,500 
Public Safety Radio Services employees or less
                            Small Government Entities has 
                            population of less than 50,000 
                            persons
Wireless Telephony and 
Paging and Messaging             1,500 Employees or Fewer
Personal Radio Services                    N/A
Offshore Radiotelephone          1,500 Employees or Fewer
Service
Wireless Communications      Small Business is $40M or less 
Services                     average annual gross revenues 
                            for three preceding years
                            Very Small Business is average 
                            gross revenues of $15M or less 
                            for the preceding three years 

39 GHz Service
                            Auction special size standard 
                            (1996) -
Multipoint Distribution      Small Business is $40M or less 
Service                      average annual gross revenues 
                            for three preceding calendar 
                            years
                            Prior to Auction -
                            Small Business has annual 
                            revenue of $12.5M or less
Multichannel Multipoint 
Distribution Service             $12.5 Million in Annual 
                                    Receipts or Less
Instructional Television 
Fixed Service
                            Auction special size standard 
                            (1998) -
Local Multipoint             Small Business is $40M or less 
Distribution Service         average annual gross revenues 
                            for three preceding years
                            Very Small Business is average 
                            gross revenues of $15M or less 
                            for the preceding three years 
                            First Auction special size 
                            standard (1994) -
                            Small Business is an entity 
                            that, together with its 
                            affiliates, has no more than a 
218-219 MHZ Service          $6M net worth and, after 
                            federal income taxes (excluding 
                            carryover losses) has no more 
                            than $2M in annual profits each 
                            year for the previous two years
                            New Standard - 
                            Small Business is average gross 
                            revenues of $15M or less for 
                            the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
                            Very Small Business is average 
                            gross revenues of $3M or less 
                            for the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
Satellite Master Antenna 
Television Systems               $12.5 Million in Annual 
                                    Receipts or Less
24 GHz - Incumbent Licensees     1,500 Employees or Fewer
24 GHz - Future Licensees    Small Business is average gross 
                            revenues of $15M or less for 
                            the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
                            Very Small Business is average 
                            gross revenues of $3M or less 
                            for the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
                       Miscellaneous
On-Line Information Services  $18 Million in Annual Receipts 
                                        or Less
Radio and Television 
Broadcasting and Wireless 
Communications Equipment          750 Employees or Fewer
Manufacturers
Audio and Video Equipment 
Manufacturers
Telephone Apparatus 
Manufacturers (Except            1,000 Employees or Fewer
Cellular)
Medical Implant Device            500 Employees or Fewer
Manufacturers
Hospitals                     $29 Million in Annual Receipts 
                                        or Less
Nursing Homes                    $11.5 Million in Annual 
                                    Receipts or Less
Hotels and Motels             $6 Million in Annual Receipts 
                                        or Less
Tower Owners                 (See Lessee's Type of Business)



_________________________

1 47 C.F.R 11.35(a) and 11.61.

2 47 U.C.S.  503(b).

3 47 U.S.C.  503(b).

4 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).

5 Section  312(f)(2) of  the Act,  47 U.S.C.   312(f)(2),  which 
applies to violations  for which forfeitures  are assessed  under 
Section 503(b) of the Act, provides that "[t]he term  'repeated', 
when used with  reference to  the commission or  omission of  any 
act, means the commission or omission of such act more than  once 
or, if such commission or  omission is continuous, for more  than 
one day."

6 47 C.F.R.  11.11 and 11.41.

7 47 C.F.R.  11.1 and 11.21.

8 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.

9 47 C.F.R.  11.35(a) and (b).

10 The required monthly and weekly tests are required to conform 
to 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.).

11  12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).

12  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).

13 47 U.S.C.  503(b)(2)(D).

14 47 U.S.C.  503(b); 47 C.F.R.  0111, 0.311, 1.80, 11.35(a) 
and 11.61. 

15 See 47 C.F.R.  1.1914.