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                           Before the
                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, 
                                                             2005

By the Acting District Director, Seattle District Office, Western 
Region, Enforcement Bureau:


I.   INTRODUCTION

     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).

II.          BACKGROUND
 
      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 

III.          DISCUSSION

        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 
participating station.

     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 
service.9  

     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 
of $8,000.

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 
submitted.
 
     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 
C. Guerrero.


                              FEDERAL COMMUNICATIONS COMMISSION



                              
                              Steven C. Houser,
                              Acting District Director 
                              Seattle District Office
                              Western Region
                              Enforcement Bureau



_________________________

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 
one day.''
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, 
11.35.

15See 47 C.F.R.  1.1914.