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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
HTV/HTN/Hawaiian TV Network, Ltd.
) File Number EB-06-HL-056
Licensee of Class A Television
Station KHLU-LP ) NAL/Acct. No. 200632860003
Honolulu, Hawaii ) FRN 0003787835
Facility ID # 27969 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 28, 2006
By the Resident Agent, Honolulu Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that HTV/HTN/Hawaiian TV Network, Ltd. ("HTV"), licensee of station
KHLU-LP, in Honolulu, Hawaii, apparently willfully and repeatedly
violated Section 73.1125(a) of the Commission's Rules ("Rules") by
failing to maintain a local main studio in its community of license.
We conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that HTV is apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000).
2. On Wednesday, May 17, 2006, an agent from the Enforcement Bureau's
Honolulu Resident Agent Office attempted to contact KHLU-LP to conduct
a routine inspection of the main studio. The Honolulu agent discovered
that there was neither a studio address nor telephone listing for
KHLU-LP. The agent called the phone number listed in the Oahu
Telephone Directory for "HTV/Hawaiian Television," and was connected
to an answering machine. The agent left a message requesting
information regarding the location of the KHLU-LP main studio. On May
18, 2006, the Honolulu agent received a telephone call from the
President of HTV, who advised the agent that the KHLU-LP main studio
is co-located with the KHLU-LP transmitter at the multi-transmitter
broadcast site managed by Salem Communications on Palehua Ridge, Oahu
("Salem site"). The KHLU-LP transmitter building and main studio are
located at the KAIM-FM transmitter site on Palehua Ridge.
3. On Monday, July 10, 2006, the Honolulu agent visited the Salem site
with the KAIM-FM site manager and KAIM-FM contract engineer. The agent
observed that there were two locked gates on the one-lane mountain
road leading to the transmitter site. The site manager stated that
these two gates are locked to prevent public access. The KHLU-LP
transmitter site was enclosed by a locked six-foot high chain-link
fence, and there were signs posted on the fence to warn the public not
to approach because of the danger of exposure to high electromagnetic
fields. The Honolulu agent found no apparent means by which the public
could access the site. The door to the KHLU-LP transmitter was locked,
and as there was no response to repeated knocks on the door, the site
manager opened the door with a master key. Inside the unoccupied
windowless transmitter building, the agent observed that it contained,
besides four racks of electronic equipment and transmitters, a file
cabinet and a single chair. There were no restroom facilities, running
water, landline telephone equipment, or staff present at the site.
4. On Monday, July 17, 2006, a Honolulu agent called the listed telephone
number for HTV at 10:00 a.m., 11:30 a.m., and 3:00 p.m., to arrange an
inspection of the KHLU-LP main studio. Each call was picked up by an
answering machine, and the agent left a message requesting an FCC
inspection of the KHLU-LP main studio. On Friday, July 21, 2006, a
field agent from the Honolulu Resident Agent Office received a
telephone call from the HTV President, stating the he could arrange
inspection on Tuesday, July 25, 2006, at 3:00 p.m.
5. On Tuesday, July 25, 2006, Honolulu agents met with the KHLU-LP
Director of Marketing, and the KHLU-LP contract engineer at 11:30 a.m.
to inspect the KHLU-LP main studio located at the Salem site. Once
again, the agents observed that there were two locked gates en-route
to the transmitter site. The KHLU-LP transmitter site was enclosed by
a locked chain-link fence, and there were signs posted on the fence to
warn the public not to approach because of the danger of exposure to
high electromagnetic fields. The door to the KHLU-LP transmitter was
locked, and the building was unoccupied upon arrival. The KHLU-LP
Director of Marketing stated that he and the HTV President are present
at the main studio from 9:00 a.m. to 5:00 p.m., Monday through Friday,
with a one hour lunch break from 1:00 to 2:00 p.m. He further stated
that in the event one of them is absent, they stagger their schedules
to insure a continual studio presence. No restroom facilities or
running water were present at the studio. The KHLU-LP Director of
Marketing departed the studio with the Honolulu agents at
approximately 4:00 p.m. that day, leaving the facility once again
6. On Thursday, July 27, 2006, a Honolulu agent once again accessed the
Salem site, this time with the KAIM-FM contract engineer. Both gates
on the mountain road leading to the transmitter site were locked. The
chain-link fence enclosing the site was locked. The agent knocked on
the door of the KHLU-LP studio, but did not receive any response. The
agent waited outside the KHLU-LP studio from 10:10 a.m. until 11:30
a.m., but did not observe anyone else at the site. The Salem contract
engineer advised that he works at the site at least three times a
month, but very rarely sees anyone from KHLU-LP at the site.
7. Later, on July 27, 2006, a Honolulu agent spoke to the KAIM-FM site
manager, with whom he had visited the Salem site on July 10, 2006. The
site manager stated that he had received a call from the KHLU-LP
Director of Marketing, several days prior. The KHLU-LP Director of
Marketing had requested a set of keys to open the locked gates at the
Salem site, stating that he had lost his set.
8. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
9. Section 73.1125(a) of the Rules requires the licensee of a broadcast
station to maintain a main studio in its community of license. The
station's main studio must serve the needs and interests of the
residents of the station's community of license. In particular, the
main studio must be accessible to the public during normal business
hours "[t]o assure meaningful public participation in [the
Commission's] licensing process." To fulfill these functions, a
station must, among other things, maintain a meaningful managerial and
staff presence at its main studio. The Commission has defined a
minimally acceptable "meaningful presence" as full-time managerial and
full-time staff personnel. In addition, there must be "management and
staff presence" on a full-time basis during normal business hours to
be considered "meaningful." Although management personnel need not be
"chained to their desks" during normal business hours, they must
"report to work at the main studio on a daily basis, spend a
substantial amount of time there and ... use the studio as a home
base." The site held out by HTV as the main studio location for
KHLU-LP has no public access, and contrary to HTV assertions, no staff
presence. In fact, any attempt to access the main studio's current
location requires passage through areas of apparently excessive
radiofrequency radiation ("RFR"). The very fact that the HTV President
asserts that the KHLU-LP transmitter site is also the KHLU-LP main
studio, indicates that the licensee is aware of the main studio
requirement, and therefore, the violation was willful. The failure to
maintain a main studio occurred on more than one day, therefore, it
was repeated. Based upon the evidence before us, we find that HTV,
apparently willfully and repeated violated Section 73.1125(a) of the
Rules, by failing to maintain a local main studio.
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 failing to comply with the main studio
requirements is $7,000. 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 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. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that HTV is
apparently liable for a $7,000 forfeiture.
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, HTV/HTN/Hawaiian TV Network,
Ltd. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of seven thousand dollars ($7,000) for violations of
Section 73.1125(a) of the Rules.
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, HTV/HTN/Hawaiian TV
Network, Ltd. 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 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Honolulu Resident
Agent Office, P.O. Box 971030, Waipahu, Hawaii, 96797-1030 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:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
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 HTV/HTN/Hawaiian TV Network, Ltd.
FEDERAL COMMUNICATIONS COMMISSION
John R. Raymond
Honolulu Resident Agent Office
47 C.F.R. S 73.1125(a).
47 U.S.C. S 503(b).
Salem Communications of Hawaii, Inc., is the licensee of KAIM-FM.
As he passed through the gate of the fence to the main studio, the
Honolulu agent noted that his personal radiofrequency radiation ("RFR")
monitor LED lit at various places within this area, indicating the RFR in
the area likely exceeded the public RFR maximum permitted exposure limit.
See Section 1.1310 of the Rules, 47 C.F.R. S 1.1310.
The agent did find a hand-written sign posted next to the door stating "Be
back in one hour." The sign was not dated and gave a cellphone number to
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3218 (1987),
clarified 3 FCC Rcd 5024, 5026 (1988).
2 FCC Rcd at 3217-18.
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified 7 FCC Rcd 6800 (1992).
7 FCC Rcd at 6802.
See A-O Broadcasting Corporation, 17 FCC Rcd 24184 (2002) (Section 73.1125
violated where main studio lacked meaningful staff presence, and was
surrounded by a locked fence which also enclosed excessive areas of RFR).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.1125(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
Federal Communications Commission