Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Three D Radio, Inc. )
) File Numbers: EB-04-LA-120
Licensee of Broadcast )
Stations ) EB-04-LA-121
KQYN(AM)and KKJT(FM) ) EB-04-LA-122
Twenty Nine Palms, California )
) NAL/Acct. No. 200432900011
Joshua Tree, California FRN 0010316594
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 29, 2004
By the District Director, Los Angeles Office, Western Region,
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Three D Radio, Inc., ("Three D Radio")
licensee of stations KQYN(AM) and KKJT(FM) in Twenty Nine Palms,
California, and KDHI(FM), Joshua Tree, California,1 has
apparently repeatedly violated Sections 11.35(a) and 11.61 of the
Federal Communications Commission's Rules ("Rules") by failing to
conduct required monthly Emergency Alert System ("EAS") tests,
and failing to ensure that EAS monitoring and transmitting
functions were available during the times the stations were in
operation.2 We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"),3 that Three D
Radio is apparently liable for a forfeiture in the amount of two
thousand dollars ($2,000).
2. On May 6, 2004, field agents from the Commission's Los
Angeles Office conducted an EAS inspection of collocated stations
KQYN(AM), KDHI(FM) and KKJT(FM). The inspection revealed that
the stations in question failed to transmit the required monthly
EAS tests (``RMTs'') over a five month period. Specifically, no
required monthly EAS tests were transmitted during the months of
January, February, March, April and May 2004. A review of the
stations' logs show that required monthly tests were received in
the months of January, April and May of 2004, but not
retransmitted in accordance with Section 11.61 of the Rules.
There were no EAS log entries to indicate any problem with, or
malfunction of, the EAS equipment nor were there any EAS log
entries to indicate that the cause of the failure to receive the
required tests was investigated. In fact, station management was
unaware that the required monthly EAS tests were not consistently
being received and retransmitted until the inspection by the
field agents. On May 11, 2004, the stations' owner acknowledged
to a field agent that the EAS equipment was not programmed to
retransmit the required monthly tests. On May 14, 2004, the
stations' owner notified the Los Angeles Office that the EAS
equipment has been changed to retransmit the required monthly
tests as required by the FCC.
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 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.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 such act more than
once or for more than one day.6
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.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
officials.9 Required monthly and weekly tests originate from EAS
Local or State Primary sources and must be retransmitted by the
5. Section 11.35 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.11 Section 11.61 of the Rules requires AM and FM
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
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.
6. A comprehensive review of the stations' logs for the
period from January 1, 2004, through May 6, 2004, revealed that
Three D Radio was not transmitting required monthly EAS tests in
a consistent manner and on a regular basis. There were no log
entries in the stations' logs to indicate any problem with, or
malfunction of, the EAS equipment nor were there any entries
indicating that the cause of the failure to receive and transmit
the required tests was investigated. Based on the evidence
before us, we find that Three D Radio repeatedly violated
Sections 11.35(a) and 11.61 of the Rules by failing to conduct
required monthly EAS tests, and by failing to ensure that the
monitoring and transmitting functions of EAS equipment was
available during the times the stations were in operation.
7. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines ("Forfeiture Policy Statement"), and
Section 1.80 of the Rules,13 sets the base forfeiture amounts for
various violations of the Commission's Rules. The Forfeiture
Policy Statement does not establish a base forfeiture amount for
violating the Commission's Rules requiring EAS tests. Therefore
we must determine what an appropriate amount should be for this
violation.14 The requirement that stations retransmit the
monthly EAS tests is similar in both nature and severity to other
required operational readiness checks identified in the Rules as
required measurements or required monitoring. Section 1.80(b)(4)
of the Rules sets the base forfeiture amount at $2,000 for
failure to make required measurements or conduct required
monitoring. Therefore, we assess the base forfeiture for failing
to conduct EAS tests in the amount of $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 Act,
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. 15 Applying the
Forfeiture Policy Statement, Section 1.80, 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, Three D
Radio, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of two thousand dollars ($2,000) for
violation of Sections 11.35(a) and 11.61 of the Rules.16
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 for Forfeiture, Three D Radio,
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 must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Los Angeles Office, 18000 Studebaker Rd., Suite 660, Cerritos, CA
90703 and must include the NAL/Acct No. referenced in the
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
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. 20554.17
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 address listed above for the
filing of the response. 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 for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail to Three D
Radio, Inc., P.O. Box 908, Twenty Nine Palms, California 92277.
FEDERAL COMMUNICATIONS COMMISSION
Los Angeles Office
Enclosure: FCC List of Small Entities
1On May 24, 2004, the licenses of KQYN(AM), KDHI(FM) and KKJT(FM)
were assigned from Three D Radio, Inc., to Three D Radio, Inc.,
Debtor-In-Possession. See File Nos. BAL-20040513AAX, BALH-
20040513AAY, BALH-20040513AAZ. On July 6, 2004, the licenses of
KDHI(FM) and KKJT(FM) were assigned from Three D Radio, Inc.
Debtor-In-Possession, to Copper Mountain Broadcasting Company.
See File No. BALH-20040518ACA. The call sign for KKJT(FM) has
been changed to KXCM(FM). The call sign for KDHI(FM) has been
changed to KQCM(FM). Currently pending is an application to
assign the license of KQYN(AM) from Three D Radio, Inc., Debtor-
In-Possession, to MCC Radio, LLC. See File No. BAL-20040804AFP.
247 C.F.R. §§11.35(a) and 11.61.
347 U.C.S. § 503(b).
447 U.S.C. § 503(b).
5Section 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).
6Section 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
747 C.F.R. §§ 11.11 and 11.41.
847 C.F.R. §§ 11.1 and 11.21.
947 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.
10See 47 C.F.R. §§ 11.51, 11.61. 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).
1147 C.F.R. § 11.35(a) and (b).
12The 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.).
1312 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. § 1.80.
14The Forfeiture Policy Statement states that ``...any omission
of a specific rule violation from the...[forfeiture
guidelines]...should not signal that the Commission considers any
unlisted violation as nonexistent or unimportant.'' Forfeiture
Policy Statement, 12 FCC Rcd at 17099. The Commission retains
the discretion, moreover, to depart from the Forfeiture Policy
Statement and issue forfeitures on a case-by-case basis, under
its general forfeiture authority contained in Section 503 of the
1547 U.S.C. § 503(b)(2)(D).
1647 U.S.C. § 503(b); 47 C.F.R. §§ 0111, 0.311, 1.80, 11.35(a)
17See 47 C.F.R. § 1.1914.