Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
                                )
Playa del Sol Broadcasters       )    File No. EB-02-SD-288
Licensee, KRCK-FM                )    NAL/Acct. No. 200332940004
Mecca, California                )    FRN 000-425-6426
                                )



                        FORFEITURE ORDER

     Adopted:  August 19, 2004               Released:  August 
     23, 2004  

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary forfeiture  in the  amount  of twelve  thousand  dollars 
($12,000) to  Playa del  Sol  Broadcasters (``Playa  del  Sol''), 
licensee of station KRCK-FM,  Mecca, California, for willful  and 
repeated violation of Sections 11.35,  11.61, and 73.1125 of  the 
Commission's Rules  (``Rules'').1  The  noted violations  involve 
Playa del Sol's failure to  ensure that required Emergency  Alert 
System (``EAS'') equipment  was operational,  failure to  conduct 
required tests of KRCK-FM's EAS equipment and failure to maintain 
a main studio.  

     2.On March 31, 2003, the Commission's San Diego,  California 
Office (``San  Diego   Office'')  issued  a  Notice  of  Apparent 
Liability for  Forfeiture  (``NAL'')  to  Playa  del  Sol  for  a 
forfeiture in the amount of fifteen thousand dollars  ($15,000).2  
After obtaining an extension of  time within which to respond  to 
the NAL, Playa del  Sol filed its response  on May 19, 2003.   In 
its response, Playa del Sol seeks rescission or reduction of  the 
forfeiture.    

                     II.          BACKGROUND

     2.   On November 13, 2002, a  Commission agent from the  San 
Diego Office attempted to conduct a routine inspection of station 
KRCK-FM's EAS equipment.  However, the agent was unable to locate 
a main studio for KRCK-FM in the Palm Springs - Mecca, California 
area.  The  agent checked  the  local telephone  directories  and 
called the toll-free telephone directory assistance operator  for 
the telephone number for KRCK-FM and Playa del Sol, but none  was 
listed.  On November 20, 2002,  the agent contacted the  attorney 
of record  for station  KRCK-FM and  obtained a  local  telephone 
number for the station.  The  agent then contacted Playa del  Sol 
and was  informed  that  the  main  studio  was  located  at  the 
transmitter site pending the expected completion of  construction 
of a  new main  studio in  Palm Desert,  California on  or  about 
December 1, 2002.

     3.   On December  2, 2002,  two agents  from the  San  Diego 
Office attempted  to conduct  an inspection  of KRCK-FM's  nearly 
completed studio in Palm Desert, California.  The agents found no 
staff present at the new main studio.  The agents contacted Playa 
del Sol's owner and general manager, Edward Stolz II, who met the 
agents at the new studio later  that day.  Mr. Stolz advised  the 
agents that the  new main  studio would be  completed later  that 
week.  Mr. Stolz also informed the agents that station  KRCK-FM's 
EAS equipment was and had been  located for the past year at  the 
old main studio at the transmitter site near Mecca, California.

     4.   Later on December  2, 2002, accompanied  by Mr.  Stolz, 
the agents  inspected station  KRCK-FM's transmitter  site.   The 
transmitter building was located  on a dirt  road, with a  locked 
fence blocking the entrance and no apparent public access to  the 
building.   Mr.  Stolz   provided  the  agents   access  to   the 
transmitter building.  There was no  evidence that a main  studio 
had been located at the  transmitter site.  There were no  desks, 
phones, or restroom facilities in the small windowless  building.  
Mr. Stolz then acknowledged that no main studio actually  existed 
at the transmitter site. 

     5.   Station KRCK-FM's  EAS  equipment was  located  at  the 
transmitter site.   No  formal  station  log  of  EAS  tests  was 
maintained and  the automatic  printouts from  the EAS  equipment 
served as the station log.  The lack of printouts indicated  that 
the EAS equipment had been out of service from December 30,  2001 
to March 10, 2002.  No  records existed regarding any attempt  by 
Playa del  Sol  to  determine  the cause  of  the  EAS  equipment 
failure.  No records  existed noting that  the EAS equipment  had 
been taken out of service for repair.3  No request for additional 
time to repair the KRCK-FM EAS equipment was ever received by the 
San Diego Office.  

     6.   The EAS printouts revealed that  Playa del Sol did  not 
retransmit any required monthly  tests at station KRCK-FM  during 
the calendar year  2002 and  only received  one required  monthly 
test during 2002.  The printouts also revealed that Playa del Sol 
did not  regularly  conduct,  receive or  transmit  the  required 
weekly  tests  at  station  KRCK-FM.   In  fact,  the   printouts 
indicated that only seven required weekly tests were  transmitted 
during all of 2002.  No records existed indicating any attempt by 
Playa del Sol to  determine the cause of  the failure to  receive 
the required monthly and  weekly EAS tests.  At  the time of  the 
inspection, the EAS equipment appeared to be set to monitor  only 
one EAS  source, not  the requisite  two sources.   On March  31, 
2003, the San Diego Office issued a NAL for $15,000 to Playa  del 
Sol for willfully and repeatedly violating Sections 11.35, 11.61, 
and 73.1125 of the Rules.

                         II.  DISCUSSION

     7.   The  proposed  forfeiture  amount  in  this  case   was 
assessed in accordance with Section 503(b) of the  Communications 
Act of 1934, as amended  (``Act''),4 Section 1.80 of the  Rules,5 
and The Commission's Forfeiture Policy Statement and Amendment of 
Section  1.80  of  the   Rules  to  Incorporate  the   Forfeiture 
Guidelines.6 In  examining  Playa  del  Sol'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 such other matters 
as justice may require.7    

     8.   Section 73.1125 of the Rules requires the licensee of a 
broadcast station  to  maintain  a  main studio  at  one  of  the 
following locations:   (1)  within  the  station's  community  of 
license; (2)  at  any  location within  the  principal  community 
contour of any AM,  FM, or TV broadcast  station licensed to  the 
station's community of license;  or (3) within twenty-five  miles 
from the reference coordinates of the center of its community  of 
license.  In  adopting  the  main studio  rules,  the  Commission 
stated that the station's main studio must have the capability to 
serve the needs and interests  of the residents of the  station's 
community of license.8   At the time  of the inspection,  station 
KRCK-FM had no main studio.   In fact, KRCK-FM's general  manager 
admitted to  the  investigating agents  that  there was  no  main 
studio at the transmitter site, and in its response Playa del Sol 
does not dispute the  evidence in the  NAL indicating that  there 
was no main studio located at the transmitter site.  Moreover, in 
its response to the NAL, Playa  del Sol discusses its efforts  to 
get the new Palm Desert studio up and running but admits that, at 
the time of  the inspection,  the new  main studio  did not  meet 
occupancy, staffing and equipment requirements.  Thus, there  was 
neither a new operational main studio nor an existing main studio 
located at the transmitter site.  Therefore, we find that station 
KRCK-FM had no main studio from  at least November 13, 2002,  the 
date on which  the San  Diego Office began  attempting to  locate 
station KRCK-FM's main  studio, to December  5, 2002 in  willful9 
and repeated10 violation of Section 73.1125 of the Rules.  

     9.   Section 11.35 of the Rules requires broadcast  stations 
to ensure that  EAS Encoders, EAS  Decoders and Attention  Signal 
generating and receiving equipment  used as part  of the EAS  are 
installed so  that  monitoring  and  transmitting  functions  are 
available during  the  times  the stations  and  systems  are  in 
operation.11  Section  11.61  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.12  
Section 11.35 also requires  broadcast stations to determine  the 
cause of any failure to receive required the required EAS  tests, 
and make  appropriate  entries  in  the  station  log  indicating 
reasons why the required tests are not received.13  Further, if a 
broadcast  station's   EAS  equipment   becomes  defective,   the 
broadcast station  may operate  without the  defective  equipment 
pending its repair or replacement for 60 days without further FCC 
authority.14  If the failure cannot be corrected within 60  days, 
Section 11.35(c) of the  Rules requires the  licensee to make  an 
informal request to the District Director of the FCC Field office 
serving the area for additional time to make necessary repairs.15  

     10.  The NAL found that Playa del Sol did not retransmit any 
required monthly EAS  tests at  station KRCK-FM  during 2002  and 
only received one required  monthly test in  2002.  The NAL  also 
found that KRCK-FM did not regularly conduct, receive or transmit 
the required weekly  EAS tests,  and that  it only  retransmitted 
seven required weekly tests during 2002.  Moreover, the NAL found 
that KRCK-FM's EAS equipment was out of service for more than  60 
days in 2002 and that  no records existed indicating any  attempt 
by Playa del Sol  to ascertain the reason  the equipment was  not 
operating or why the required  weekly and monthly EAS tests  were 
not received or retransmitted.  

     11.  Playa del  Sol asserts  its belief  that KRCK-FM's  EAS 
equipment was  not out  of service  for any  period during  2002.  
Playa del Sol  attributes its  inability to  demonstrate that  it 
received  and  transmitted  monthly  EAS  tests  to  problems  it 
experienced with its  equipment.  Playa  del Sol  states that  it 
began experiencing problems with its EAS equipment in late  2001, 
when it noted that the system was recording the incorrect day  of 
the week and  the years  1901 and  1902.  Playa  del Sol  further 
claims that an unfortunate series  of events resulted in its  not 
being  able  to   produce  EAS  printouts,   including  its   air 
conditioning system vent shredding  tapes, and incorrect  machine 
ribbon rubbing against the  tape advance mechanism, which  caused 
the entire printout to stop.   Playa del Sol also contends  that, 
contrary to the NAL's finding, station KRCK-FM actually  received 
four required monthly tests and eleven required weekly tests.16  

     12.  Although Playa del Sol acknowledges having  experienced 
problems with its EAS  equipment that required  the system to  be 
sent back to the manufacturer and that required a software  patch 
to correct the Y2K problem that  caused the machine to print  the 
wrong years, there are no  logged entries to indicate that  there 
were any problems with the EAS.   In fact, there was no EAS  log.  
While Playa del Sol  argues in reply that  the EAS equipment  was 
operational, the combination of not having an EAS log, not having 
any type  of  EAS printouts  for  the period  December  30,  2001 
through March 10, 2002, and the acknowledged problems that  Playa 
del Sol was  having with station  KRCK-FM's EAS equipment  caused 
the investigating agents to determine that station KRCK-FM's  EAS 
system was not operational for  that time-period.  Playa del  Sol 
admits that its EAS equipment was out of service sometime in late 
2001, during which time Playa  del Sol returned the equipment  to 
the manufacturer.   Playa del  Sol also  admits that  it can  not 
provide any documentary evidence to establish that station  KRCK-
FM transmitted the required monthly tests during 2002.   Further, 
whether station KRCK-FM actually received four monthly and eleven 
weekly tests is irrelevant.  Station KRCK-FM should have received 
and logged twelve monthly tests and at least 40 weekly tests  and 
it should  have had  the  records to  prove  it.17  It  did  not.  
Moreover, there are no records to indicate that it  retransmitted 
any of the required  monthly tests or  that it retransmitted  any 
more than seven weekly tests during all of 2002.  The absence  of 
any corroborating logs  belies Playa del  Sol's claim that  KRCK-
FM's EAS equipment was  not out of service  at any time in  2002.  
Thus, although the equipment may  have been operational at  times 
during 2001 through  2002, Playa  del Sol admits  and the  record 
establishes that there were  extended periods during which  there 
are no log entries to  indicate whether the equipment  functioned 
properly as required by of Section 11.35 of the Rules.   Further, 
there are no records that indicate that Playa del Sol transmitted 
all of the weekly and monthly EAS tests required by Section 11.61 
of the Rules.18          

     13.  Based on the findings  of the NAL  and Playa del  Sol's 
response thereto,  we find  that Playa  del Sol's  violations  of 
Sections 73.1125, 11.35, and 11.61 of the Rules were willful  and 
repeated.  We also note that, even though Playa del Sol has a new 
accessible main studio and a new EAS system, these measures  were 
accomplished after the  Commission's inspection.  Although  Playa 
del  Sol's  corrective  actions  are  commendable,  they  do  not 
mitigate its  violations.  As  the Commission  stated in  Seawest 
Yacht Brokers, 9 FCC Rcd  6099, 6099 (1994), ``corrective  action 
taken to come into compliance with Commission rules or policy  is 
expected, and does not nullify or mitigate any prior  forfeitures 
or violations.''19  Finally, we note that Playa del Sol claims to 
have a history of compliance with the Commission's Rules.  Having 
found that Playa del Sol does  have a history of compliance  with 
the Commission's Rules, we believe a reduction of the  forfeiture 
to $12,000 is warranted.     

                             ORDERING CLAUSES

     15.  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,20  Playa del  Sol Broadcasters,  LLC IS  LIABLE FOR  A 
MONETARY FORFEITURE in  the amount of  twelve thousand  ($12,000) 
for its  willful and  repeated  violations of  Sections  73.1125, 
11.35, and 11.61 of the Rules at station KRCK-FM.  
          16.  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.21  Payment may 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 
reference NAL/Acct. No. 200332940004 and FRN 000 425 6426.  
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. 20554.22  
     17.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
be  sent  by  First  Class  and  Certified  Mail  Return  Receipt 
Requested to  Playa  del Sol  Broadcasters,  801 K  Street,  27th 
Floor,  Sacramento,  California  95814  and  its  counsel  Andrew 
Kersting, Esq., Dickstein  Shapiro Morin &  Oshinsky LLP, 2101  L 
Street, NW, Washington, DC  20037-1526.    

                              FEDERAL COMMUNICATIONS COMMISSION
                         
                              David H. Solomon
                              Chief, Enforcement Bureau


_________________________

1 47 C.F.R.  11.35, 11.61 and 73.1125.  
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct.  No. 
200332940004 (Enf. Bur. San Diego Office, March 31, 2003).  
3 EAS equipment may be removed from service for repair for up  to 
60 days without  Commission approval.  Stations  are required  to 
make log entries noting the date removed and returned to service.  
See 47 C.F.R.  11.35(b). 
4 47 U.S.C.  503(b).
5 47 C.F.R.  1.80.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).  
7 47 U.S.C.  503(b)(2)(D).
8 Main  Studio and  Program Origination  Rules, 2  FCC Rcd  3215, 
3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
9 Section  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,' 
... 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).
10 As provided by 47  U.S.C.  312(f)(2), a continuous  violation 
is ``repeated''  if it  continues for  more than  one day.    The 
Conference Report for Section  312(f)(2) indicates that  Congress 
intended to apply this  definition to Section 503  of the Act  as 
well as  Section 312.   See  H.R. Rep.  97th  Cong. 2d  Sess.  51 
(1982).  See Southern California Broadcasting Company, 6 FCC  Rcd 
4387, 4388 (1991)  and Western Wireless  Corporation, 18 FCC  Rcd 
10319 at fn 56 (2003).
11 47 C.F.R.  11.35.
12 47 C.F.R.  11.61.  The required monthly and weekly tests  are 
required to conform  with 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).
13 47 C.F.R.  11.35.
14 47 C.F.R.  11.35(b).
15 47 C.F.R. 11.35(c).
16 Playa Del Sol also  discusses problems with station  KRCK-FM's 
toll-free phone telephone  number and its  disagreement with  the 
NAL's finding that it was monitoring only one EAS source  instead 
of two.  We do not  address these matters herein because  neither 
was cited in the NAL as a violation for which a forfeiture amount 
was imposed.
17 See 47 C.F.R.  73.1820.
18 We note that Commission agents tested the EAS equipment during 
the inspection on December 2, 2002, by transmitting a weekly test 
and the resulting EAS printout indicated that the year was  1902.  
Thus, at the  time of the  inspection the EAS  equipment was  not 
fully functional.
19 See also AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 
(2002).
20 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
21 47 U.S.C.  504(a).
22 See 47 C.F.R.  1.1914.