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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
Adopted: August 19, 2004 Released: August
By the Chief, Enforcement Bureau:
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
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.
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.
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
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
19 See also AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871
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.