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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Omni Communications, Inc. ) EB-07-DL-075
Licensee of Station KWOX ) NAL/Acct. No. 200832500001
Woodward, Oklahoma ) FRN: 0003752904
Facility ID # 50332 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 23, 2007
By the District Director, Dallas Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Omni Communications, Inc. ("Omni"), licensee of station KWOX, in
Woodward, Oklahoma, apparently willfully and repeatedly violated
Section 11.35(a) of the Commission's Rules ("Rules") by failing to
ensure that Emergency Alert System ("EAS") equipment was installed so
that the monitoring and transmitting functions were available during
the times the station was in operation. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Omni is apparently liable for a forfeiture in the amount of eight
thousand dollars ($8,000).
2. On May 2, 2007, an agent from the Commission's Dallas Office of the
Enforcement Bureau ("Dallas Office") inspected the main studio for
station KWOX in Woodward, Oklahoma. The EAS unit had no audio signal
on two of the three connected inputs. The unit's date was set to
1/10/1995 and would not accept a date or time correction. The unit was
set to automatically retransmit monthly tests. A review of the EAS
logs for the previous five months found no entries for received weekly
or monthly tests or sent monthly tests. The station attached eight
printouts dated in January and February 2005 showing weekly tests sent
to log entries for eight days in February, March, April, and May 2007.
There were no log entries indicating why the missing weekly and
monthly tests were not received or sent.
3. 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.
4. Section 11.35(a) 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. The EAS protocol includes the day in Julian calendar days,
the time the message was released and a valid time period for the
5. During the inspection on May 2, 2007, station KWOX's EAS
encoder/decoder was not operational, because it was missing audio
inputs and the unit would not accept a correction to the date or time.
Without the correct date and time, the unit could not properly
validate any received or transmitted messages, and, therefore, would
discard received messages and not automatically retransmit received
messages. Station KWOX's EAS unit was set to automatically retransmit
monthly tests. The logs showed no weekly or monthly tests received or
monthly tests sent for at least five months prior to the inspection
and contained no explanation for the missing weekly and monthly
received and sent tests. There was no other evidence that the
equipment was fully operational during this five-month period.
6. Based on the evidence before us, we find that Omni apparently
willfully and repeatedly violated Section 11.35(a) of the Rules by
failing to ensure that EAS equipment was installed so that the
monitoring and transmitting functions were available during the times
the station was in operation.
7. 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. In assessing the monetary forfeiture amount, we must also
take into account the statutory factors set forth in Section
503(b)(2)(E) 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 of the Rules,
and the statutory factors to the instant case, we conclude that Omni
is apparently liable for a $8,000 forfeiture.
IV. ORDERING CLAUSES
8. 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, Omni Communications, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for violation of Section
11.35(a) of the Rules.
9. 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, Omni Communications, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
10. 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.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Dallas Office,
9330 LBJ Freeway, #1170, Dallas, Texas, 75243 and must include the
NAL/Acct. No. referenced in the caption.
12. 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.
13. 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. 20554.8
14. 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 Omni Communications, Inc. at its
address of record and to its counsel, John F. Garziglia, Womble,
Carlyle, Sandridge & Rice, 1401 Eye Street NW, Seventh Floor,
Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
South Central Region
47 C.F.R. S:S: 11.35(a) and 73.3526(e)(12).
47 U.S.C. S: 503(b).
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."
47 C.F.R. S: 11.35(a).
47 C.F.R. S:S: 11.35(a), (b).
47 C.F.R. S: 11.31.
Some EAS units can be programmed to print an out-of-date message for
received tests prior to discarding them. However, there were no such
messages in station KMZE's files.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35(a).
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission