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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
WSKQ Licensing, Inc. ) File Number EB-05-NY-058
Licensee of Station WSKQ-FM )
New York, New York ) FRN 0004 9768 82
Facility ID #61641 )
WPAT Licensing, Inc. ) File Number EB-05-NY-059
Licensee of Station WPAT-FM )
Paterson, NJ ) FRN 0004 9765 10
Facility ID # 51663 )
) NAL/Acct. No. 200632380003
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the District Director, New York Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that WSKQ Licensing, Inc. (``WSKQ''), the
licensee of FM Broadcast station WSKQ-FM in New York, New York,
and WPAT Licensing, Inc. (``WPAT''), licensee of FM Broadcast
station WPAT-FM in Paterson, New Jersey, apparently willfully
and repeatedly violated Section 11.35(a) of the Commission's
Rules ("Rules")1 by failing to maintain fully operational
Emergency Alert System (``EAS'') equipment. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934,
as amended (``Act'')2, that WSKQ and WPAT apparently are
jointly liable for a forfeiture in the amount of eight thousand
2. The parent company of WSKQ and WPAT is the Spanish
Broadcasting System. Stations WSKQ-FM and WPAT-FM are co-
located at a main studio in New York, NY. Each station has its
own EAS Encoder and Decoder, but shares a common set of radio
receivers for monitoring EAS tests and alerts.3
3. On March 3, 2005, an agent from the Commission's New
York Office conducted an inspection at the main studio of WSKQ-
FM and WPAT-FM located at 26 West 56th Street, New York, NY
10019, with the stations' chief operator. Although EAS
Encoders and Decoders were installed for each station, the
agent found that the EAS system was not fully operational at
the time of inspection. The agent could not hear any audio
from any designated first and/or second local primary stations
(LP-1 and LP-2) from the EAS decoders' built-in speakers. The
agent observed that, for each station, the EAS Decoder's audio
inputs were not connected to the stations' shared set of EAS
monitoring receivers and therefore neither station's EAS
equipment was capable of monitoring any broadcast stations for
EAS alerts or tests. The chief operator contemporaneously
stated to the agent that the receivers were not connected
properly to the EAS equipment.
4. On March 17, 2005, the agent continued his
investigation of WSKQ-FM and WPAT-FM with the stations' chief
operator. The agent conducted a comprehensive review of each
station's EAS logs, including the printouts generated from the
EAS encoder/decoder. The EAS logs showed that, for each
station, no required weekly or monthly EAS tests were received
and no monthly EAS tests were transmitted from December 1, 2004
to March 14, 2005. There were no log entries indicating why
the EAS weekly or monthly tests were not received, no logs
indicating when the system became inoperative, and no log
entries identifying the cause of any equipment failures or any
actions taken to remedy any equipment failures. There were no
EAS logs present at all for any time before December 2004. The
agent conducted a search of the FCC's records and found no
evidence that WSKQ or WPAT had notified the FCC regarding
5. The chief operator stated during the March 17, 2005
inspection that, because of maintenance work, the receivers
used to monitor the EAS sources were not connected from July 1,
2004 to March 9, 2005. He stated that he had been aware of the
condition of the EAS equipment since July 2004, and that the
receivers were connected and became operational as of March 9,
2005. The EAS printouts showed that a weekly test was received
on March 15, 2005.
6. On April 6, 2005, the New York Office sent Letters of
Inquiry (``LOI'') to both WSKQ and WPAT, at the stations'
corporate office, requesting information regarding the
operation of the EAS equipment. In a response dated April 26,
2005, on behalf of WSKQ, Spanish Broadcasting System's
Executive Vice President, Joseph A. Garcia indicated that, as a
result of maintenance work, its EAS equipment was not connected
to the required monitoring equipment from July 1, 2004 to March
9, 2005.4 Mr. Garcia reported that the EAS equipment was
restored to full working condition on March 9, 2005.5
7. 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. The term "willful"
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.6 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.7
8. 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.8
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.9 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.10 Required monthly and weekly tests
originate from EAS Local or State Primary sources and must be
retransmitted by the participating station.
9. Section 11.35(a) of the Rules requires all broadcast
stations to ensure that EAS encoders, EAS decoders, 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
10. Sections 11.61(a)(1) and
11.61(a)(2) of the Rules require broadcast stations to receive
monthly EAS tests from designated local primary EAS sources and
retransmit the monthly test within 60 minutes of its receipt
and to 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. Section 11.61(b) of the Rules
requires that entries of each test and activation of the EAS
must be made in the broadcast station log as specified in
Sections 73.1820 and 73.1840 of the Rules.13
11. During an inspection by a
Commission agent on March 3, 2005, WSKQ's and WPAT's EAS
equipment was not fully operational. The agent could not hear
any audio from the EAS decoders built-in speakers due to the
stations' failure to connect the receivers to the EAS
equipment. This failure prevented WSKQ and WPAT from
monitoring any broadcast stations for EAS alerts or tests.
12. A comprehensive review of the
stations' EAS logs by the agent on March 17, 2005, showed that,
for each station, no monthly tests were received or
transmitted, and no weekly tests were received from December 1,
2004 to March 14, 2005. There were no logs indicating why any
tests were not received, no logs indicating when the system
became inoperative, and no logs identifying the cause of any
equipment failures or any actions taken to remedy any equipment
failures. There were no EAS logs present at all for any time
before December, 2004.
13. During the March 17, 2005
inspection, the chief operator stated to the agent that,
although he became aware on July 1, 2004 that the receivers
were not connected to the EAS equipment, the receivers remained
unconnected until March 9, 2005. In its response to the April
6, 2005 Letter of Inquiry on behalf of its station WSKQ,
Spanish Broadcasting System confirmed that the receivers had
not been properly connected from July 1, 2004 to March 9, 2005.
14. WSKQ and WPAT were aware that their EAS equipment
was not fully operational as of July 1, 2004, but the EAS
equipment did not become fully operational until March 9, 2005.
The stations' violation therefore was willful. Because the
violation continued for more than one day, it was repeated.
15. Based on the evidence before us, we find that WSKQ
and WPAT apparently willfully and repeatedly violated Section
11.35(a) of the Commission's Rules ("Rules")14 by failing to
maintain operational Emergency Alert System (EAS) equipment.
16. 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
$8,000.15 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.16 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that WSKQ and WPAT are apparently
jointly liable for a ($8,000) forfeiture.
IV. ORDERING CLAUSES
17. 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, WSKQ Licensing, Inc. and WPAT Licensing, Inc. are hereby
NOTIFIED of their APPARENT JOINT LIABILITY FOR A FORFEITURE in
the amount of eight thousand dollars ($8,000) for violations of
Section 11.35 of the Rules.17
18. 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, WSKQ Licensing, Inc. and WPAT Licensing, Inc.
JOINTLY SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
19. 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
20. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast
Region, New York Office, 201 Varick Street, New York, NY 10014
and must include the NAL/Acct. No. referenced in the caption.
21. 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.
22. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Associate Managing
Director, Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 2055418
23. 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 WSKQ
Licensing, Inc. and WPAT Licensing, Inc. at their address of
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
147 C.F.R. § 11.35(a).
247 U.S.C. § 503(b).
3Section 11.52(c) of the Rules provides that ``[b]roadcast
stations . . . that are co-owned and co-located with a combined
studio or control facility . . . may comply with the EAS
monitoring requirements contained in this section for the
combined station or system with one EAS Decoder.'' 47 C.F.R. §
4We also note that the corporate engineer for the Spanish
Broadcasting System stated to the agent that, although WPAT did
not receive the Letter of Inquiry, its response would have been
the same as WSKQ's response. We therefore are treating the
response submitted on behalf of WSKQ as the response for both
5We note that, in response to the LOI, WSKQ reported that the New
York State EAS Plan inadvertently failed to include WSKQ or its
LP-1 and LP-2 designations. This fact has no impact on the
instant Notice of Apparent Liability, which is based on the
stations' failure to maintain operational EAS equipment and not
which stations they should have been monitoring. That is, even
if the stations had received monitoring assignments under the New
York State EAS Plan, the stations' receivers were not properly
connected to the EAS equipment and therefore the stations were
not capable of monitoring any stations.
6Section 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).
7Section 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
847 C.F.R. §§ 11.11 and 11.41.
947 C.F.R. §§ 11.1 and 11.21.
1047 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.
1147 C.F.R. §§ 11.35(a) and (b). Section 11.35(c) of the Rules
also provides that if repair or replacement of defective
equipment is not completed within 60 days, an informal request
shall be submitted to the District Director of the FCC field
office serving the area in which the broadcast station is
located. 47 C.F.R. §11.35(c).
1247 C.F.R. §§ 11.61(a)(1) and (a)(2).
1347 C.F.R. §§ 11.61(b), 73.1820, 73.1840.
1447 C.F.R. § 11.35.
1512 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1647 U.S.C. § 503(b)(2)(D).
1747 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
18See 47 C.F.R. § 1.1914.