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


In the Matter of                )
                                )       
Desert Television LLC           )       File No. EB-03-SD-017
TV Station KPSP-LP              )       NAL/Acct.             No. 
200332940006
Cathedral City-Palm Springs, California )         FRN    000-497-
4044
                                )       

                                
                        FORFEITURE ORDER

Adopted:  November 8, 2004                    Released:  November 
10, 2004

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of six  thousand four hundred 
($6,400) to Desert Television LLC (``Desert''), licensee of Class 
A Television Broadcast Station KPSP-LP, for willful and repeated 
violation of Section 11.35 of the Commission's Rules ("Rules").1  
The noted violation involves Desert's failure to ensure that 
required Emergency Alert System (``EAS'') equipment was installed 
and operational.

     2.   On  March  31,  2003,   the  Commission's  San   Diego, 
California Field Office (``San Diego Office") issued a Notice  of 
Apparent Liability  for  Forfeiture  ("NAL"),  to  Desert  for  a 
forfeiture in  the amount  of eight  thousand dollars  ($8,000).2  
Desert filed a response to the NAL on May 14, 2003.  

II.  BACKGROUND

     3.   The FCC license for Station KPSP-LP was issued to 
          Desert on July 9, 2001, and on September 2, 2002, 
          Desert relocated the main studio for KPSP-LP from Palm 
          Springs to Thousand Palms, California.  On November 
          13, 2002, an agent from the San Diego Office attempted 
          to conduct a routine inspection of the EAS equipment 
          of Station KPSP-LP.  The agent found that the EAS 
          equipment was not functional, and Desert's Chief 
          Engineer advised the agent that the EAS system had 
          been inoperable since the move, approximately eleven 
          weeks prior to the inspection.  Desert's Chief 
          Engineer stated it would be operating by November 15, 
          2002, because the necessary antenna equipment parts to 
          repair the EAS system had just arrived.  A week later, 
          on November 20, 2002, the agent sent Desert's Chief 
          Engineer an E-mail requesting certain information: the 
          status of Desert's EAS equipment; copies of the EAS 
          printouts if the equipment was functional; and other 
          information as specified in Section 11.35(c) of the 
          Rules.3  Because the agent did not receive a 
          responsive E-mail from Desert, an agent from the San 
          Diego Office conducted a follow-up inspection on 
          February 12, 2003.  Although the EAS equipment 
          appeared to be operational at that time, the station 
          records available to the agent contained no evidence 
          that any required monthly or weekly EAS tests had been 
          received since the November inspection, other than one 
          EAS test report dated February 11, 2003.

     4.   On March 31, 2003, the San Diego Office issued the 
          subject NAL to Desert for apparent willful and 
          repeated violation of Sections 11.35 and 11.61 of the 
          Rules.4  In its response, Desert disputes certain 
          factual findings, believes that it has remained in 
          substantial, if not full, compliance with the Rules, 
          and urges the Commission to rescind or reduce the 
          forfeiture amount based on the fact that it used its 
          best efforts to make the appropriate changes to the 
          EAS equipment to make it operational. 

III.      DISCUSSION

     5.   The proposed forfeiture amount in this case was 
          assessed in accordance with Section 503(b) of the 
          Communications Act of 1934, as amended (``Act''),5 
          Section 1.80 of the Rules,6 and The Commission's 
          Forfeiture Policy Statement and Amendment of Section 
          1.80 of the Rules to Incorporate the Forfeiture 
          Guidelines (``Forfeiture Policy Statement'').7  In 
          examining Desert'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.8

     6.   Section 11.35(a) of the Rules9 provides that broadcast 
          stations are responsible for ensuring that EAS 
          Encoders, EAS Decoders, and Attention Signal 
          generating and receiving equipment used as a part of 
          the EAS are installed so that the monitoring and 
          transmitting functions are available during times that 
          stations and systems are in operation.  If there is a 
          failure to receive the required tests, stations must 
          determine the cause of any failure to receive the 
          required tests and make appropriate entries in the 
          stations logs indicating the reasons why any tests 
          were not received.  Section 11.35(b) of the Rules10 
          provides, among other things, that if the EAS Encoder 
          or EAS Decoder becomes defective, the broadcast 
          station may operate without the defective equipment 
          pending its repair or replacement for 60 days without 
          contacting the FCC.  Section 11.35(c) of the Rules 
          further provides, however, that if the repair or 
          replacement is not completed within that 60 days, the 
          licensee must submit an informal request to the 
          appropriate District Director requesting more time to 
          repair the defective equipment.  In that submission, 
          the licensee must also provide information as to what 
          is being used while the equipment is out of service, 
          and when the defective equipment will be repaired or 
          replaced.

     7.   Desert seeks a cancellation or reduction in the amount 
          of the proposed forfeiture arguing that it did not 
          violate Section 11.35 of the Rules for the entire 
          period specified in the NAL (September 2002 through 
          February 11, 2003) and that it was, and has been, in 
          ``substantial, if not full, compliance with the EAS 
          rules.''  It maintains that when it reinstalled EAS 
          equipment on October 16, 2002, after its move, it 
          discovered that the equipment was not fully 
          operational.  Desert claims it began partial EAS 
          operations on November 14, 2002 (the day after the 
          Commission inspection), ordered new EAS equipment on 
          November 29, 2002 and was able to receive, send and 
          log weekly and monthly EAS tests on a regular basis 
          starting on or about January 3, 2003, all prior to the 
          Commission's re-inspection on February 12, 2003.  
          Desert's response is accompanied by documentation, 
          including a copy of an E-mail response dated November 
          20, 2002, allegedly sent by Desert's Chief Engineer to 
          an agent in the San Diego Office, and program logs to 
          demonstrate that EAS tests of the equipment were 
          performed regularly from January 6, 2003 through May 
          9, 2003.  Desert maintains that by answering the 
          agent's E-mail on November 20, Desert was in 
          compliance with Section 11.35(b) which gives licensees 
          60 days to operate with defective equipment without 
          notifying the Commission, and 11.35(c) which requires 
          the licensee to notify the appropriate District 
          Director explaining its attempts to come into 
          compliance with 11.35(a) if repairs can not be 
          completed within 60 days.11  Desert further states 
          that it has fully corrected its defective EAS 
          equipment, and its violations, if any, were 
          inadvertent and minor, as well as unintentional. 

     8.   In its program logs submitted with its response to the 
          NAL, Desert states that its EAS equipment was not 
          operational between September 2, 2002 and November 13, 
          2002, the date when the  agent inspected Station KPSP-
          LP.12  This admission affirms a violation of Section 
          11.35(a).  Additionally, since this time period is 
          more than 60 days, the operation without the defective 
          EAS equipment exceeded the 60 day period permitted by 
          Section 11.35(b) of the Rules.13  The copy of the E-
          mail which Desert submitted as substantiation of its 
          response to the Commission agent's inquiries of 
          November 20, 2002,14 does not excuse Desert's 
          violation.  At best, this E-mail, if it had been 
          received, could be considered a post 60 day period 
          request for more time to complete the repairs to its 
          EAS equipment, as contemplated by Section 11.35(c) of 
          the Rules.  In sum, we find that Desert willfully15 
          and repeatedly16 violated Section 11.35 of the Rules, 
          by its operation without the defective EAS equipment 
          between November 2, 2002 and January 6, 2003 (the date 
          the installed equipment was fully operational).

     9.   Desert also argues that if the Commission concludes 
          that a violation occurred, it should reduce the 
          forfeiture because of Desert's good faith efforts to 
          come into compliance with the rules.17  The Commission 
          recognizes Desert's discovery that its EAS system was 
          not in working order, and its subsequent ordering of 
          necessary antenna connector parts before the 
          Commission's November 13, 2002 inspection, are actions 
          indicative of a good faith attempt to comply with the 
          Commission's rules.18  These pre-inspection actions do 
          not warrant cancellation of the proposed forfeiture, 
          however, but do warrant a reduction from $8,000 to 
          $6,400.  

     10.  Further, Desert's claim of inadvertence for its 
          failure to have the EAS equipment operational does not 
          excuse or mitigate its violation of the Rules.  As the 
          Commission has stated, ``inadvertence . . . is at best 
          ignorance of the law,'' and is not considered a 
          mitigating circumstance.19  Similarly, the Commission 
          does not believe that Desert's not having its required 
          EAS equipment operating at the time of its relocation, 
          or within 60 days thereof, and thus not being able to 
          participate in the EAS program, is a minor 
          violation.20  Finally, Desert's claim that its 
          violations were unintentional, or not willful, does 
          not mitigate its violation of the Rules.21   
          Therefore, we conclude that no reduction or 
          cancellation of the proposed forfeiture is warranted 
          due to the Desert's claim of inadvertence, that its 
          violations were minor, or unintentional. 

     11.  We have examined Desert's response to the NAL pursuant 
          to the statutory factors above, and in conjunction 
          with the Forfeiture Policy Statement as well.  As a 
          result of our review, we find that Desert willfully 
          and repeatedly violated Section 11.35 of the Rules, 
          and we find that cancellation of the proposed monetary 
          forfeiture is not warranted, but a reduction to six 
          thousand four hundred dollars ($6,400) is appropriate.  
IV.  ORDERING CLAUSES

     12.  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,22 Desert Television LLC, IS LIABLE FOR A MONETARY 
FORFEITURE in the amount of six thousand four hundred dollars 
($6,400) for willfully and repeatedly violating Section 11.35 of 
the Rules. 

     13.  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.23  
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 must include the FCC 
Registration Number (FRN) and the NAL/Acct. No. referenced in the 
caption.  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 Group, 445 12th Street, S.W., 
Washington, D.C. 20554.24
     
     14.  IT IS FURTHER ORDERED that, a copy of this Order shall 
be sent by Certified Mail Return Receipt Requested and by First 
Class Mail to Mr. William Evans, Vice President and General 
Manager, Desert Television LLC, 31-276 Dunham Way, Thousand 
Palms, California, 92276, and to its counsel, Maureen R. 
Jeffreys, Esq., Arnold & Porter, 555 Twelfth Street, N.W., 
Washington, D.C. 20004-1206.

                              FEDERAL COMMUNICATIONS COMMISSION

                         

                              George R. Dillon
                              Assistant Chief, Enforcement Bureau


           



_________________________

1 47 C.F.R.  11.35.

2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332940006 (Enf. Bur., San Diego Office, released March 31, 
2003).

3 47 C.F.R.  11.35 (c).

4 We will not address the apparent violation of Section 11.61 in 
this Order because the NAL only specified a forfeiture amount for 
the apparent violation of Section 11.35 of the Rules (EAS 
equipment not installed and operational).  See Blue Skies 
Broadcasting Corporation, 18 FCC Rcd 15184 n. 2 (Enf. Bur. 2003).  

5 47 U.S.C.  503(b).

6 47 C.F.R.  1.80.

7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

8 47 U.S.C.  503(b)(2)(D).

9 47 C.F.R.  11.35(a).

1047 C.F.R.  11.35(b).

11 Because the NAL forfeiture amount is based on Desert's 
apparent violation of Section 11.35(a) of the Rules, we need not 
determine whether Desert's alleged E-mail complied with Section 
11.35(b) and (c) of the Rules.

12 In its Deviation Report of November 14, 2002, Desert states 
``[a]s of 9-02-02 [t]he EAS System has not been operational and 
is not a scheduled log event as a weekly test.''  See, NAL 
response, Exhibit 4.

13 Desert mistakenly relies on Smith Broadcasting of Santa 
Barbara, 18 FCC Rcd 9127 (Enf. Bur. 2003), wherein the Bureau 
cancelled an NAL, finding that less than 60 days had elapsed 
while a station operated with defective EAS equipment.  Here, 
Desert operated without fully operational EAS equipment for more 
than 60 days before allegedly contacting the Commission, and 
gives no indication that it would have contacted the Commission 
but for the Commission's November 13, 2002 inspection.

14 The agent from the San Diego Office agent states that she did 
not receive the E-mail from Desert's Chief Engineer, and knew 
nothing about it until she read Desert's NAL response.  

15 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, 4388  5 (1991), recon. denied, 7 FCC Rcd 3454 
(1993).

16 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 Co., supra at 4388 
 5.

17 Desert proffers two cases where the Commission reduced a 
penalty for a Section 11.35 violation when similar actions were 
taken to fix defective EAS equipment prior to Commission notice 
of the violation, KNEC Arnold Broadcasting Company, Inc., 16 FCC 
Rcd 267 (Enf. Bur. 2001) and Rego, Inc., Licensee of Station WGEZ 
(AM), 16 FCC Rcd 16795 (Enf. Bur. 2001).  Because we agree that 
Desert's  pre-inspection actions denote good faith, there is no 
need to discuss these cases further.

18 See also Atlantic Beach Radio, Inc., 18 FCC Rcd 14263 (Enf. 
Bur. 2003) (crediting a licensee for its good faith attempt at 
compliance with Section 11.35 of the Rules by purchasing EAS 
equipment before the agent's inspection), and CB Radio, Inc., 19 
FCC Rcd 14868, 14870  10 (Enf. Bur. 2004) (crediting a licensee 
for its good faith attempt at registering its tower with the 
Commission).

19 See Southern California Broadcasting Co., supra, at 4387  3, 
and Maxwell Broadcasting Group, Inc., 8 FCC Rcd 784, 784  2 (MMB 
1993) (denying a mitigation claim of a noncommercial broadcast 
licensee, stating that the excuse of inadvertence, due to 
inexperience and ignorance of the rules is not a reason to 
mitigate a forfeiture for violation of the advertisement 
restrictions).

20 See Mapa Broadcasting, L.L.C., 17 FCC Rcd 10519 (Enf. Bur. 
2002) (finding that not having the required EAS equipment was not 
a minor violation).

21 See text accompanying note 15 supra.

2247 C.F.R.  0.111, 0.311, 1.80(f)(4).

2347 U.S.C.  504(a).

24See 47 C.F.R.  1.1914.