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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Alpine Broadcasting, Ltd. ) File No.: EB-00-DV-409
Licensee, Station KKIT(FM) )
Angel Fire, New Mexico )
and ) and
Alpine Broadcasting Ltd. Partnership ) File No.: EB-00-DV-
Licensee, Station KXMT(FM) ) NAL/Acct. No.
Taos, New Mexico ) FRN 0005-9526-68
Adopted: September 23, 2002 Released: September
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twelve thousand eight
hundred dollars ($12,800), to Alpine Broadcasting, Ltd., licensee
of Station KKIT(FM), Angel Fire, New Mexico, and Alpine
Broadcasting Ltd. Partnership, licensee of Station KXMT(FM),
Taos, New Mexico, collectively (``Alpine''), for willful
violation of Section 11.35(a) of the Commission's Rules
("Rules").1 The noted violations involve Alpine's failure to
have operational Emergency Alert System ("EAS") equipment at
Stations KKIT(FM) and KXMT(FM).
2. On May 16, 2002, the District Director of the
Commission's Denver, Colorado Field Office ("Denver Office")
issued a Notice of Apparent Liability for Forfeiture ("NAL")2 in
the amount of sixteen thousand dollars ($16,000). Alpine filed a
response on May 31, 2002.
3. On August 9, 2001, a Commission agent from the Denver
Office conducted inspections of Stations KKIT(FM) in
Angel Fire, New Mexico and KXMT(FM) in Taos, New
Mexico. During the inspections, the agent found that
neither KKIT(FM) nor KXMT(FM) had operational EAS
equipment installed. There were no entries in the
station log indicating that the EAS equipment had ever
been operational or had been taken out of service for
4. In its response, filed on May 31, 2002, Alpine does not
dispute the violations. Nevertheless, Alpine requests
cancellation or substantial reduction of the forfeiture
for other reasons. Alpine asserts its inability to pay
the forfeiture and that it has a history of no prior
offenses. Alpine also requests that the Commission
consider that from March through August of 2001, Alpine
was in the process of relocating the studio facilities
of both KKIT and KXMT, and that although the
inspections occurred approximately five months after
the relocation project began, the final installations
were continuing through the end of August 2001.
Finally, Alpine requests the Commission to consider
that it took immediate corrective action once it became
aware that the contract engineer in charge of the
relocation project failed to timely install the EAS
5. The forfeiture amount in this case is being
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),3 Section 1.80 of the Rules,4
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.5 In examining Alpine's response, Section 503(b) of
the Act requires that the Commission take into account the
nature, circumstances, extent and gravity of the violation and,
with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and other such matters
as justice may require.6
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
Section 11.35 of the Rules provides that broadcast stations are
responsible for ensuring that EAS Encoders, EAS Decoders and
Attention Signal generating and receiving equipment used as part
of the EAS are installed so that the monitoring and transmitting
functions are available during the times the stations and systems
are in operation. On August 9, 2001, the EAS equipment at
KKIT(FM) and KXMT(FM) was not installed and connected so as to be
operational. Thus, Alpine was in violation of Section 11.35(a)
of the Rules.
7. In support of its request for cancellation or reduction
of the forfeiture, Alpine contends that assessing the full
forfeiture amount would impose a serious financial burden. In
support of this contention, Alpine submitted copies of its 1998,
1999, and 2000 federal income tax returns; its audited financial
statements for 1999, 2000, 2001, and 2002; and other business
information. Although other factors can be considered, the best
indication of a company's ability to pay a forfeiture amount is
its gross receipts.8 After reviewing the financial data
submitted, we believe the proposed forfeiture of $16,000 is not
excessive in light of Alpine's gross revenues. Further, although
Alpine states that for the five months prior to the inspection,
it was in the process of relocating the KKIT(FM) and KXMT(FM)
studios and that the final installations were continuing through
the end of August 2001, this does not excuse Alpine's violations
of the EAS rules. Alpine could have sought a waiver of the EAS
rules if the relocation meant the EAS equipment was going to be
temporarily out of service for more than sixty days, but it did
not. Finally, while Alpine claims that it took immediate
corrective action once it became aware that its contract engineer
had failed to timely reinstall the EAS equipment, licensees are
responsible for the acts and omissions of its employees and
contractors.9 Moreover, remedial actions taken to correct the
violations, while commendable, are not mitigating factors.10
However, after considering Alpine's overall history of compliance
with the Commission's rules, we conclude that it is appropriate
to reduce the forfeiture amount from $16,000 to $12,800.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,11 Alpine Broadcasting Ltd. and Alpine Broadcasting Ltd.
Partnership are LIABLE FOR A MONETARY FORFEITURE in the amount of
twelve thousand eight hundred dollars ($12,800) for violating
Section 11.35(a) of the Rules.
9. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.12
Payment shall be made by mailing a check or similar instrument,
payable to the order of the "Federal Communications Commission,"
to the Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should note NAL/Acct.
No. 200232800002, and FRN 005-9526-68. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
10. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Alpine
Broadcasting Ltd. And Alpine Broadcasting Ltd. Partnership at
P.O. Box 2158, Ketchum, Idaho 83340 and to their counsel Richard
A. Helmick, Esq. at Cohn and Marks LLP, 1920 N Street, NW, Suite
300, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 11.35(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232800002 (Enf. Bur., Denver Office, released May 16, 2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 11.1.
8 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
9 See Netcom Technologies, Inc., 16 FCC Rcd 9524, 9526 (Enf.
Bur. 2001); Wagenvoord Broadcasting Co., 35 FCC 2d 361 (1972).
10 See, e.g., Puerto Rico Tower Co., Inc., 16 FCC Rcd 271,
273 (Enf. Bur. 2001).
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.