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


In the Matter of                   )
                                  )
Big Island Radio                   )  File No. EB-03-HL-035
Former Licensee of Station         )  NAL/Acct. No. 200432860002
KHWI(FM)                           )  FRN 0004-9794-64
Hilo, Hawaii



                      FORFEITURE ORDER

Adopted:  October 18, 2004              Released:  October 
21, 2004

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of one thousand three 
hundred dollars ($1,300) to Big Island Radio (``Big 
Island''), former licensee of Station KHWI(FM), Hilo, 
Hawaii,1 for its repeated violations of the Emergency Alert 
System (``EAS'') requirements of Sections 11.35(a) and 11.61 
of the Commission's Rules (``Rules'').

II.   BACKGROUND

     2.   On March 11, 2004, the Commission's Honolulu, 
Hawaii Field Office (``Field Office'') released a Notice of 
Apparent Liability for Forfeiture (``NAL'').2  The NAL found 
that Station KHWI failed to receive and retransmit the EAS 
Required Monthly Test (``RMT'') between March and May 1, of 
2003, and further failed to receive and retransmit the EAS 
Required Weekly Tests (``RWTs'') between January and April 
of 2003. The NAL proposed a $2,000 forfeiture, finding that 
Big Island apparently repeatedly violated Sections 11.35(a) 
and 11.61 of the Rules because it did not conduct the 
required monthly and weekly EAS tests and did not determine 
and log the reasons for its failure to receive the required 
EAS transmissions.

     3.   In its response to the NAL, Big Island did not 
dispute the NAL's findings.  Rather, Big Island sought a 
reduction or cancellation of the proposed forfeiture based 
on its good faith efforts, its unblemished history of 
compliance and its inability to pay.

III.        DISCUSSION

     4.  The forfeiture amount proposed in this case was 
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 assessing 
forfeitures, Section 503(b)(2)(D) of the Act requires that 
we 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.6  As discussed below, we have considered Big 
Island's response to the NAL in light of these statutory 
factors and have found that reduction of the proposed 
forfeiture amount is warranted.

     5.   Big Island claimed, and provided a supporting 
sworn declaration from its Chief Executive Officer attesting 
to the fact, that prior to the Field Office's inspection it 
took corrective measures by terminating ``nonperforming 
personnel, including the General Manager and Engineer,'' 
retaining the services of qualified staff, including a new 
radio engineer, and instituting scheduled implementation of 
measures to bring Station KHWI, and Big Island's other seven 
radio stations in compliance with the requirements of the 
Act and Rules;7 and that after the inspection, it informed 
the Field Office that it corrected the noted deficiencies 
and replaced the noted defective EAS equipment.8  As the 
broadcast licensee, Big Island is held accountable and is 
not absolved from liability for the actions of its prior 
nonperforming staff.9  Moreover, Big Island's replacement of 
defective EAS equipment and resumption of testing and 
logging, after the Field Office's inspection, generally 
would not be considered a mitigating circumstance that would 
warrant reduction or cancellation of the proposed 
forfeiture.10  However, because the record establishes that 
Big Island voluntarily and on its own accord initiated, and 
was in the process of implementing, corrective measures 
prior to the Field Office's inspection, we conclude that 
reduction of the proposed forfeiture amount to $1,600 is 
warranted.11

     6.   Big Island also claimed, and a search of 
Commission, Bureau and Field Office decisions confirmed, 
that Station KHWI, and its seven sister radio stations, have 
had an unblemished history of serving their communities in 
compliance with Commission regulations.  After considering 
Ad-Venture's past history of compliance, we conclude that a 
further reduction of the proposed forfeiture amount to 
$1,300 is appropriate.12

     7.   Finally, Big Island claimed, and provided 
financial documentation to show, that over the last three 
years its stations have been operating with net losses, 
which has culminated in its recent efforts to ``sell the 
stations and leave the broadcasting business.''13  Whereas 
Big Island's documentation establishes that it has 
consistently operated at net losses, we nevertheless find 
that it has generated sufficient gross revenues such that 
payment of the reduced forfeiture will not pose a financial 
hardship.14

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,15 Big Island Radio IS LIABLE FOR A 
MONETARY FORFEITURE in the amount of one thousand three 
hundred dollars ($1,300.00) for repeated

 violations of Sections 11.35(a) and 11.61 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.16  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 Forfeiture 
Collection Section, Finance Branch, Federal Communications 
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.  
Payment by overnight mail may be sent to Bank One/LB 73482, 
525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.  
Payment by wire transfer may be made to ABA Number 
071000013, receiving bank Bank One, and account number 
1165259.  Requests for full payment under an installment 
plan should be sent to:  Chief, Revenue and Receivables 
Operations Group, 445 12th Street, S.W., Washington, D.C. 
20554.17

     10.  IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class and Certified Mail Return 
Receipt Requested to Big Island Radio, Pioneer Plaza, Suite 
1725, 900 Fort Street Mall, Honolulu, Hawaii 96813, and to 
its counsel, William D. Silva, Esq., 5335 Wisconsin Avenue, 
N.W., Suite 400, Washington, D.C. 20015.

                              FEDERAL         COMMUNICATIONS 
COMMISSION
                         

                              George R. Dillon
                              Assistant  Chief,  Enforcement 
Bureau




_________________________

1Commission records reflect that the assignment application 
was granted on March 11,  2004, and the license for Station 
KHWI was transferred on May 21, 2004.  See BALH-20031002ABG 
(granted March 11, 2004).

2Big Island  Radio, NAL/Acct. No. 200432860002  (Enf. Bur., 
Honolulu, Hawaii Office, released March 11, 2004).

347 U.S.C.  503(b).

447 C.F.R.  1.80.

512 FCC  Rcd 17087  (1997), recon. denied,  15 FCC  Rcd 303 
(1999) (``Forfeiture Policy Statement'').  

647 U.S.C.  503(b)(2)(D).

7Sworn Declaration  of Glenn Yee, Chief  Executive Officer, 
Big Island Radio  (April 12, 2004) at 1.   According to Mr. 
Yee's declaration, Big Island  Radio's implemented a three-
phase  ``priority of  projects,''  which  consisted of  (1) 
relocating  an AM  antenna structure  and transmitter;  (2) 
repairing  and/or replacing  eight AM/FM  transmitters; and 
(3) repairing and/or  replacing studio equipment, including 
Station  KHWI's  EAS equipment.  Id.  At  the time  of  the 
inspection, Big  Island, having completed the  first phase, 
had been implementing the second phase; and, within a month 
after the inspection, it  replaced Station KHWI's defective 
EAS equipment.  Id.

8In this  connection, Big  Island cited Radio  Lake Placid, 
Inc., DA  03-4093 (Enf.  Bur., released December  30, 2003) 
and noted  that it  was allowed  under Commission  rules to 
operate  for  a  period  of  60  days  with  defective  EAS 
equipment.  Whereas a station is permitted to operate for a 
60-day  period  while  its  EAS equipment  is  repaired  or 
replaced, an informal request must  be made to the District 
Director  if  it  could   not  accomplish  the  repairs  or 
replacement  within such  time  period.  See  47 C.F.R.   
11.35(b)  and (c).    Because  Station  KHWI was  operating 
beyond  the 60-day  period,  its reliance  upon Radio  Lake 
Placid, Inc. is misplaced.   See, e.g., Rotijefco, Inc., 18 
FCC Rcd 14629, 14630-31   7 (Enf. Bur. 2003) (finding that 
the station had not repaired  or replaced the defective EAS 
equipment  within  the  60-day  period, and  thus  was  not 
entitled to cancellation of the proposed forfeiture).  

9See  Eure Family  Limited Partnership,  17 FCC  Rcd 21861, 
21863-64   6-7 (2002); Sonderling Broadcasting  Corp., 69 
FCC 2d 289, 290-91  6 (1977); Wagenvoord Broadcasting Co., 
35 FCC  2d 361, 361-62   3 (1972);  Charter Communications 
VI,  LLC, 17  FCC Rcd  16516,  16518-19   8-9 (Enf.  Bur. 
2002); American Paging, Inc., 12  FCC Rcd 10417, 19419-20  
11 (WTB 1997). 

10See AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002), 
forfeiture  ordered, 17  FCC Rcd  21866, 21875-76   26-28 
(2002); Seawest  Yacht Brokers,  9 FCC Rcd  6099, 6099   7 
(1994); see also  TCI Cablevision of Maryland,  Inc., 7 FCC 
Rcd  6013,  6014    8  (1992) (noting  that  it  would  be 
inappropriate  to base  ``mitigation or  cancellation of  a 
forfeiture  upon  corrective  action  taken  subsequent  to 
misconduct  upon which  liability  is  based,'' because  it 
``would tend to encourage remedial rather than preventative 
action''). 

11See,  e.g., Pearson  Broadcasting of  Mena, Inc.,  DA 04-
2391,  8 (Enf. Bur., released August 2, 2004); Petracom of 
Texarkana, LLC,  19 FCC  Rcd 8096, 8097-98   6  (Enf. Bur. 
2004).

12See, e.g., Rotijefco,  Inc., 18 FCC Rcd 14629,  14631  8 
(Enf. Bur.  2003); Roser  Communications Network,  Inc., 18 
FCC Rcd  11766, 11768-69   10 (Enf. Bur.  2003); Tidewater 
Communications, Inc.,  18 FCC Rcd  5524, 5525   5-6 (Enf. 
Bur.  2003);  Southern  Rhode Island  Public  Broadcasting, 
Inc., 15 FCC Rcd 8115, 8117-18   8 (Enf. Bur. 2000); Aurio 
A. Matos and Juan Carlos Matos, DA 99-1931  7 (MMB 1999).

13Letter   from  William   D.   Silva,   Esq.  to   Federal 
Communications  Commission,  Enforcement  Bureau,  Spectrum 
Enforcement  Division (April  12, 2004)  at 2.   Commission 
records  reflect  that  three of  Big  Island's  assignment 
applications have been granted,  and that five applications 
are pending and  subject to petitions to  deny.   See BALH-
20031002ABG  (granted   May  26,   2004);  BALH-20031002AAW 
(granted  April 16,  2004); BAL-20031106AMG  (granted March 
11,  2004); BALH-20031002AAY  (applications reinstated  and 
pending).

14See Forfeiture Policy Statement,  12 FCC Rcd 17087, 17106 
 43 (1997), recon. denied,  15 FCC Rcd 303 (1999) (stating 
that ``[i]f gross revenues are sufficiently great . . . the 
mere factor that a business is operating at a loss does not 
itself mean that  it cannot afford to  pay a forfeiture''); 
Independent Communications, Inc., 15 FCC Rcd 16060, 16060  
2  (2000)  (finding that  although  a  corporation had  net 
losses of $520,667, it had gross revenues of  $516,147, and 
that absent ``other information  indicating that payment of 
the  $27,500  forfeiture  would  threaten  its  ability  to 
continue  to provide  service to  the public,  reduction or 
cancellation in  the forfeiture amount was  not warranted); 
see also Small Town Radio, Inc., 19 FCC Rcd 7187, 7188-89  
9  (Enf.  Bur. 2004)  (finding  that  although a  broadcast 
licensee's  liabilities  may   have  greatly  exceeded  its 
assets,  it had  ``contracted  to sell  its  station for  a 
substantial amount'' such that reduction or cancellation of 
the forfeiture was not warranted). 

1547 C.F.R.  0.111, 0.311, 1.80(f)(4).

1647 U.S.C.  504(a).

17See 47 C.F.R.  1.1914.