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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Rafael C. Guerrero ) File No. EB-04-ST-066
Licensee of AM Station KRSC ) NAL/Acct. No. 200532980002
Othello, Washington ) FRN: 0009705435
Facility ID # 25350 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 7,
By the Acting District Director, Seattle District Office, Western
Region, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Rafael C. Guerrero ("Guerrero"), licensee
of station KRSC(AM), in Othello, Washington, apparently willfully
and repeatedly violated Section 11.35 of the Commission's Rules
("Rules")1 by failing to maintain operational EAS equipment. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"),2 that Guerrero is apparently liable for
forfeiture in the amount of eight thousand dollars ($8,000).
2. On July 22, 2004, an agent from the Commission's
Seattle Office conducted an inspection at the main studio of AM
station KRSC located in Othello, Washington. Although EAS
equipment was installed, the agent found that it was not
operational at the time of inspection. No audio from the EAS
receivers for the designated first and second local primary
stations (LP-1 and LP-2) could be heard. On the day of the
inspection, there were no logs of any required monthly tests
(``RMTs'') being received or transmitted. There were no
printouts or log entries available indicating that the LP-1 and
LP-2 stations were being monitored or that any required weekly
tests (``RWTs'') from the LP-1 or LP-2 stations had been
received. No log entries existed in any station log identifying
the cause of any equipment failures or any actions taken to
remedy any equipment failures. There were no records, logs, or
other evidence indicating that the EAS system was operational or
had been operational for at least two years prior to the
inspection. The KRSC staff could not explain why the system
failed to operate.
3. On November 29, 2004, Seattle agents conducted a
second inspection of KRSC. At the request of the Seattle agents,
the LP-1 station transmitted a RWT, however, the KRSC EAS system
failed to detect the activation. In addition, there were no EAS
printouts generated by the EAS Encoder/Decoder that indicated
that KRSC received or transmitted any RMTs or RWTs from July 22,
2004, through November 29, 2004. A review of the Seattle Office
records revealed that KRSC did not make a request to the local
FCC office to operate without EAS equipment beyond 60 days, as
required by Section 11.35(c) of the Rules.3
4. 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. 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 Required monthly and weekly tests originate from EAS
Local or State Primary sources and must be retransmitted by the
6. 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
7. Section 11.61(a)(1) and (2) of the Rules requires
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.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.
``Appropriate entries must be made in the broadcast station log
as specified in Sections 73.1820 and 73.1840 of this chapter
[...] indicating reasons why any tests were not received.''11
8. During inspections by Seattle agents on July 22,
2004, and November 29, 2004, the KRSC EAS equipment was not
operational. The KRSC staff could not provide any logs
indicating that any RWTs or RMTs had been sent or received in the
two years prior to July 22, 2004. In addition, the KRSC staff
could not provide logs identifying the cause of any equipment
failures or any actions taken to remedy any equipment failures.
The KRSC staff could not explain why the system failed to
operate. In addition, the KRSC staff could not provide evidence
that any RWTs or RMTs had been sent or received between the first
inspection on July 22, 2004, and the second inspection on
November 29, 2004.
9. Guerrero was aware on July 22, 2004, that the KRSC
EAS equipment was inoperable and that the equipment was failing
to receive or transmit the required monthly and weekly tests,
therefore, Guerrero's violation was willful. The violation
occurred for more than one day, therefore, it was repeated.
Based on the evidence before us, we find that Guerrero apparently
willfully and repeatedly violated Section 11.35 of the Rules by
failing to maintain operational EAS equipment.
10. 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"), and Section 1.80 of the Rules, the base forfeiture
amount for EAS equipment not installed or operational is
$8,000.12 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 violations, 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.13 Applying the Forfeiture Policy Statement, Section
1.80, and the statutory factors to the instant case, we conclude
that Guerrero is apparently liable for a forfeiture in the amount
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's Rules,
Rafael C. Guerrero is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of eight thousand dollars ($8,000)
for violations of Section 11.35 of the Rules.14
12. 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, Mr. Rafael
C. Guerrero 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 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.
14. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
11410 NE 122nd Way, Suite 312, Kirkland, WA 98034-6927 and must
include the NAL/Acct. No. referenced in the caption.
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 ("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
16. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an installment
plan should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.15
17. 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 Mr. Rafael
FEDERAL COMMUNICATIONS COMMISSION
Steven C. Houser,
Acting District Director
Seattle District Office
147 C.F.R. § 11.35.
247 U.S.C. § 503(b).
347 C.F.R. § 11.35(c).
4Section 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).
5Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
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
647 C.F.R. §§ 11.11 and 11.41.
747 C.F.R. §§ 11.1 and 11.21.
847 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.
947 C.F.R. § 11.35(a) and (b).
10The 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).
1147 C.F.R. § 11.35(a).
1212 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1347 U.S.C. § 503(b)(2)(D).
1447 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
15See 47 C.F.R. § 1.1914.