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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Farmworkers Educational Radio ) File No. EB-05-SD-072
Network, Inc. )
) NAL/Acct. No.
Licensee of Station KCEC-FM ) 200532940003
Wellton, Arizona )
Facility ID #36829 FRN: 0010-0576-85
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 20, 2005
By the District Director, San Diego Office, Western Region,
1.1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Farmworkers Educational Radio
Network, Inc. (``Farmworkers''), the licensee of FM Broadcast
Radio station KCEC-FM in Wellton, Arizona, apparently repeatedly
violated Section 11.35 of the Commission's Rules (``Rules''),1
by failing to ensure the operational readiness of KCEC-FM's
Emergency Alert System (``EAS'') equipment. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended (``Act'')2, that Farmworkers is apparently liable for a
forfeiture in the amount of eight thousand dollars ($8,000).
1.2. On April 8, 2005, an agent from the Commission's
San Diego Office conducted an inspection at the main studio of
KCEC-FM located at 670 E. 32nd Street, Suite 12A, Yuma, Arizona.
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. At the
request of the agent, the designated LP-1 and LP-2 stations ran
a required weekly test (RWT) during this inspection and the
station's EAS equipment did not detect the activation. A review
of the EAS log and printouts generated by the EAS
Encoder/Decoder indicated that from January 2004 through April
2005, only four monthly tests (RMT) were received from the local
primary stations and none of these tests were retransmitted.
EAS logs also indicated that numerous RWTs were not transmitted
by KCEC-FM and numerous RWTs were not received from either
designated LP-1 or LP-2 stations during this same period. No
entries were made by KCEC-FM staff in the EAS log to identify
the causes of these failures or what steps were taken to remedy
1.3. On April 22, 2005, the San Diego agent spoke with
the KCEC-FM's Chief Engineer. The Chief Engineer acknowledged
that problems were found with the EAS equipment during the
engineer's inspection of the station's EAS equipment on April 9,
2005. Specifically, he indicated that the EAS equipment was
originally set for the automatic mode to receive and to forward
the information received for the tests from the local primary
stations. However, the EAS equipment was switched to the manual
mode, requiring a staff person to manually resend the RMT.
Also, the Chief Engineer indicated that the EAS receivers were
not connected properly to a power source which explained why the
tests sent by the LP-1 and LP-2 had not been received by KCEC-
1.4. 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.3 The term ``repeated'' means
the commission or omission of such act more than once or for
more than one day.4
1.5. 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.5 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.6 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.7 Required monthly and weekly tests originate from
EAS Local or State Primary sources and must be retransmitted by
the participating station
1.6. 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
1.7. 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.9 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, indicating reasons
why any tests were not received or transmitted.10
1.8. A comprehensive review of the station log for a
period of 15 months, January 1, 2004 through April 8, 2005,
revealed that KCEC-FM received only four of the RMTs and did not
transmit any of these tests. Also, during the same period,
KCEC-FM did not did not transmit RWTs for a total of 23 weeks.
Additionally, KCEC-FM did not receive any of the required weekly
tests from the designated local primary stations from June 27,
2004 through April 2, 2005, apparently because the EAS receivers
were not plugged in. There were no appropriate entries made in
the EAS log to indicate reasons why any tests were not received
or transmitted.11 In a telephone conversation with a San Diego
agent, the KCEC-FM Chief Engineer acknowledged that he found
problems with the EAS equipment when he inspected it the day
after the FCC inspection. Specifically, he acknowledged that
the tests from the LP-1 and LP-2 were not received by KCEC-FM
because the receivers connected to the EAS equipment were not
properly connected to a power source. He also acknowledged that
the EAS equipment was set to the manual mode, requiring a staff
person to manually resend the RMT.
1.9. Farmworkers failed to maintain the EAS equipment
installed at KCEC-FM for a period of over 15 months and,
consequently, numerous RMTs and RWTs were not received or
transmitted. Therefore, Farmworkers' violation is repeated.
Based on the evidence before us, we find that Farmworkers
Educational Radio Network, Inc., apparently repeatedly violated
Section 11.35 of the Rules, by failing to ensure the operational
readiness of the EAS equipment at KCEC-FM.
1.10. 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(b)(4) of the Rules sets forth the base forfeiture
amounts for various violations of the Commission's Rules. The
base forfeiture for EAS equipment not installed or operational
is $8,000. 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, and with
respect to the violator, the degree of culpability, and any
history of prior offenses, ability to pay, and other such
matters as justice may require.''12 Applying the Forfeiture
Policy Statement, Section 1.80 and the statutory factors, we
conclude that Farmworkers is apparently liable for a forfeiture
in the amount of $8,000.
IV. ORDERING CLAUSES
1.11. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
and Sections 0.111, 0.311 and 1.80 of the Commission's Rules,
Farmworkers Educational Radio Network Inc. is hereby NOTIFIED of
their APPARENT LIABILITY FOR A FORFEITURE in the amount of eight
thousand dollars ($8,000) for violating Section 11.35 of the
1.12. 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, Farmworkers Educational Radio Network Inc., SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
1.13. 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 Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by
overnight mail may be sent to Mellon Bank /LB 358340, 500 Ross
Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving
bank Mellon Bank, and account number 911-6106
1.14. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
San Diego Office, 4542 Ruffner Street, Suite 370, San Diego,
California 92111 and must include the NAL/Acct. No. referenced
1.15. 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.
1.16. 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 Receivable Operation
Group, 445 12th Street, S.W., Washington, D.C. 20554.14
1.17. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT
LIABILITY shall be sent, by Certified Mail, Return Receipt
Requested to Farmworkers Educational Radio Network Inc. at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
San Diego Office
147 C.F.R. § 11.35.
247 U.S.C. § 503(b).
3Section 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).
4Section 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
547 C.F.R. §§ 11.11 and 11.41.
647 C.F.R. §§ 11.1 and 11.21.
747 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.
847 C.F.R. § 11.35(a) and (b).
9The 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).
1047 C.F.R. §§ 73.1820 and 73.1840.
11Additionally, no request was sent to the District Director of
the San Diego District Office notifying the office of the
defective equipment and requesting additional time to repair the
equipment, as required pursuant to Section 11.35(c) of the Rules.
47 C.F.R. § 11.35(c).
12 47 U.S.C. § 503(b)(2)(D).
13 47 U.S.C. § 503(b), 47C.F.R. §§ 0.111, 0.311, 1.80, 11.35.
14 See 47 C.F.R. § 1.1914.