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

In the Matter of                )
                                )       File No. EB-02-SD-144
Aracelis Ortiz, Executrix       )    
for the Estate of Carlos Ortiz  )       NAL/Acct.             No. 
200232940008
Harlingen, Texas               )     
                                )       FRN 0003-7552-87
                               ) 

                        FORFEITURE ORDER

     Adopted:  February 20, 2004             Released:   February 
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 Aracelis Ortiz, Executrix  for the Estate of  Carlos 
Ortiz  (``Aracelis  Ortiz''),  licensee  of  Class  A  Television 
Broadcast  station  KCOS-LP,  Phoenix,  Arizona,  for   willfully 
violating Sections 73.1125(c)  and 11.35(a)  of the  Commission's 
Rules  (``Rules'').1   The  noted  violations  involve   Aracelis 
Ortiz's failure to  ensure that required  Emergency Alert  System 
(``EAS'') equipment was operational  at station KCOS-LP and  Mrs. 
Ortiz's failure to have a main studio at a location within  KCOS-
LP's predicted Grade B contour on June 25, 2002.  

     2.   On September  30, 2002,  the District  Director of  the 
Commission's San  Diego,  California  Field  Office  ("San  Diego 
Office'') issued a  Notice of Apparent  Liability for  Forfeiture 
("NAL")2 in the amount of  fifteen thousand dollars ($15,000)  to 
Aracelis Ortiz.   After receiving  an  extension of  time  within 
which to  respond to  the NAL,  Mrs. Ortiz  filed a  response  on 
November 18, 2002.  

                         II.  BACKGROUND

     3.   On May  6, 2002,  an agent  from the  Commission's  San 
          Diego Office attempted to conduct a routine  inspection 
          of KCOS-LP's EAS equipment.  The agent discovered  that 
          there was  neither a  studio  address nor  a  telephone 
          listing for  station KCOS-LP  in any  of the  telephone 
          directories  for  the   Phoenix  area.   However,   the 
          transmitter for  Station KCOS-LP  was operating  on  TV 
          channel 28.  

     4.   On May  9, 2002,  an agent  from the  San Diego  Office 
          telephoned the licensee in Harlingen, Texas to obtain a 
          studio address and  telephone number  for KCOS-LP.   No 
          one knowledgeable about KCOS-LP  was available at  that 
          time.  On May  10, 2002, the  District Director of  the 
          San Diego Office sent a Letter of Inquiry to Mrs. Ortiz 
          requesting  a  contact  person  in  the  Phoenix   area 
          responsible for  KCOS-LP,  the  address  of  the  local 
          studio, and a local  telephone number for the  station.  
          The San Diego Office received a fax reply to the Letter 
          of Inquiry on May 20,  2002.  The fax gave a  telephone 
          number for  station KCOS-LP,  however, when  called,  a 
          recording indicated that the telephone number had  been 
          disconnected.  The fax also  indicated that the  studio 
          address for station  KCOS-LP was 6750  E. Main  Street, 
          Suite 106, Mesa, Arizona.    

     5.   On June 24, 2002,  an agent from  the San Diego  Office 
visited the studio address provided in the May 20, 2002 fax.  The 
agent found no studio for  KCOS-LP at that address.  However,  he 
found that the transmitter site management company was located at 
this address.   Employees  of  the  transmitter  site  management 
company provided a Phoenix area telephone number for KCOS-LP.      

     6.   On June 25, 2002,  using the telephone number  provided 
       by  the site  management company,  the agent  reached  Mr. 
       Thomas  Northcross,  station  manager  for  KCOS-LP.   Mr. 
       Northcross stated  that KCOS-LP did not  have a studio  in 
       operation  at   that  time,   but  that   one  was   under 
       construction  at  3820  E.  Main  St.,  Suite  10,   Mesa, 
       Arizona.  He also  stated that KCOS-LP was operating as  a 
       Low  Power   TV  station   and  did   not  originate   any 
       programming, as  it was  rebroadcasting programs  received 
       by  an  earth  station  at  the  transmitter  site.    Mr. 
       Northcross also stated  that KCOS-LP did not have any  EAS 
       equipment installed  at that time  but that the  equipment 
       would be installed when the studio was completed.  

     7.   On September 30, 2002, the District Director of the San 
       Diego Office issued a NAL to Aracelis Ortiz for  violating 
       Sections  73.1125(c)  and  11.35(a)  of  the  Rules.    On 
       November 18, 2002, Aracelis Ortiz filed a response to  the 
       NAL.  In her  response, Mrs. Ortiz informs the  Commission 
       that she is  the licensee of station KCOS-LP, not  because 
       she  is   experienced  in  the   operation  of   broadcast 
       stations, but  because she  is the Executrix  of her  late 
       husband's estate and  he was the licensee of the  station.  
       Further, Mrs.  Ortiz asserts that  the allegations in  the 
       NAL, that station KCOS-LP  did not have a main studio  and 
       that  it did not  have EAS  equipment are not  based on  a 
       physical  inspection  of  KCOS-LP,  but  on  a   telephone 
       conversation  between   an  FCC  agent   and  Mr.   Thomas 
       Northcross,   then  station   manager  of   KCOS-LP.    In 
       addition, Mrs.  Ortiz states that  the Enforcement  Bureau 
       did not  issue her a Notice  of Violation (``NOV'')  prior 
       to issuing the NAL, with an opportunity to comment on  the 
       alleged rule violations.  Specifically regarding the  main 
       studio violation,  Mrs. Ortiz states  that she executed  a 
       lease on  June 2, 2002 for space  to use as a main  studio 
       at 3820 E. Main Street, Mesa, Arizona.  Mrs. Ortiz  claims 
       to  have accepted  the space  ``as is,''  occupied it  and 
       commenced   construction   of   an   office   and   studio 
       immediately, and  further states  that on  June 25,  2002, 
       the  studio was  under construction.3   Mrs. Ortiz  states 
       that Mr. Northcross  was in Phoenix to obtain  programming 
       commitments  and because  she sought  to comply  with  the 
       FCC's requirement  to maintain  and staff  a main  studio.  
       Finally, Mrs. Ortiz argues that Section 73.1125(c) of  the 
       Rules,  which requires  a Class  A low  power licensee  to 
       maintain a  main studio within its  Grade B contour,  does 
       not require  the main  studio to be  operational 24  hours 
       per day,  365 days per  year.  Mrs. Ortiz  claims to  have 
       been in substantial compliance with the main studio rule.  

     8.   Regarding the EAS violation, Mrs. Ortiz states that  on 
January 10, 2001, EAS equipment  was ordered for several Class  A 
low power stations licensed to Carlos Ortiz or Ortiz Broadcasting 
Company.   Mrs. Ortiz includes a copy of an invoice dated January 
9, 2001 which shows five EAS-TV with character generators and ten 
modified  MTA-16  AM/FM  receivers  having  been  ordered.   Also 
included is  a copy  of  a cancelled  check  for payment  of  the 
invoice which is dated April  22, 2002.  Mrs. Ortiz claims  that, 
although payment  was  made  more  than  two  months  before  the 
inspection, on the  date of inspection,  the EAS equipment  still 
had not been delivered.  Mrs. Ortiz asserts that she made a  good 
faith effort  to comply  with  the EAS  rule  and should  not  be 
penalized for  the equipment  vendor's inability  to make  timely 
delivery.      
   
                           III. DISCUSSION
 
          9.   The proposed  forfeiture amount  in this  case  is 
being  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, 12 FCC Rcd 17087 (1997), recon. denied, 15 
FCC  Rcd  303  (1999)  (``Forfeiture  Policy  Statement'').    In 
examining Aracelis Ortiz'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

          10.  Section 73.1125(c) of the Rules provides that each 
Class A Television  station shall maintain  a main studio  within 
the station's  predicted  Grade B  contour.   There was  no  main 
studio located  at  6750  East  Main  Street,  Suite  106,  Mesa, 
Arizona, the  first  address  provided as  the  main  studio  for 
station KCOS-LP.  We know this because agents from the San  Diego 
Office attempted to inspect the  station at that address on  June 
24, 2002.   This  fact was  further  confirmed by  the  telephone 
conversation with Mr.  Northcross, the station  manager, on  June 
25, 2002, when he stated that KCOS-LP did not have a main  studio 
in operation at that time, but one was under construction at 3820 
East Main Street, Suite 10, Mesa, Arizona.  Moreover, the agents' 
inability to find  a telephone  number or studio  address in  any 
telephone directory  for the  Phoenix area  for station  KCOS-LP, 
beginning on May 6,  2002, is a  further indication that  station 
KCOS-LP did  not have  a main  studio.  Finally,  Aracelis  Ortiz 
confirmed that there was  no main studio  for station KCOS-LP  in 
her response to the NAL when she stated that the main studio  was 
``under construction and had not  been completed.''  There is  no 
indication in the  response that any  of the activities  normally 
associated with  a  main studio  were  being conducted  from  the 
alleged main studio that was under construction at 3820 East Main 
Street.  Although Mrs.  Ortiz claims that  Mr. Northcross was  in 
the Phoenix area  to obtain programming  commitments and  because 
she was aware of the FCC's main studio staffing requirements,  we 
note that the cited violation was  failure to have a main  studio 
at all, not failure to maintain appropriate studio staffing.   We 
find that Aracelis Ortiz  willfully7 violated Section  73.1125(c) 
of the Rules by  failing to have a  main studio within  KCOS-LP's 
predicted Grade B contour.  However, we note that Mrs. Ortiz  did 
enter into a lease on June 2, 2002 (prior to the inspection)  for 
real property located  at 3820  E. Main Street,  Suite 10,  Mesa, 
Arizona, to be  used and  occupied as  a ``television  network.''  
Mrs. Ortiz's execution of a lease  for a main studio is  evidence 
of her good faith intention to comply with Section 73.1125(c)  of 
the Rules.8  Therefore, we will reduce the base forfeiture amount 
of $7,000  assessable for  the  Section 73.1125(c)  violation  to 
$5,600.

                                                                                                                                                              
11.  Section  11.35(a)  of  the  Rules  provides  that  broadcast 
stations,  which  include  Class  A  television  stations,9   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 times the station and systems  are 
in operation.  Because Aracelis Ortiz did not have EAS  equipment 
installed at station KCOS-LP on June  25, 2002, we find that  she 
willfully violated Section 11.35(a) of the Rules.  However,  Mrs. 
Ortiz has  established that  she  had ordered  and paid  for  EAS 
equipment for station KCOS-LP at least two months before the date 
of the attempted  inspection, even though  the equipment had  not 
been delivered by  that date.   Although we do  not believe  that 
Mrs. Ortiz's efforts to comply with the EAS rules are  sufficient 
to justify canceling  the forfeiture,  we do  believe that  those 
same efforts merit  a reduction of  the proposed forfeiture.   We 
therefore reduce the base  forfeiture amount attributable to  the 
EAS violation from $8,000  to $6,400 based  on Mrs. Ortiz's  good 
faith efforts to comply with Section 11.35(a) of the Rules  prior 
to being informed of the violation.10  

     12.  As for Mrs. Ortiz's  remaining arguments, we note  that 
Mrs. Ortiz is  now the  licensee of KCOS-LP  as a  result of  her 
husband's death.  However, we also  note that Mrs. Ortiz had  two 
years between the dates  of Mr. Ortiz's death  on August 5,  2000 
and the  issuance of  the NAL  on September  30, 2002  to  become 
knowledgeable  about  her  responsibilities  as  a   broadcaster.  
Licensees are expected to know  and comply with the  Commission's 
rules.11  Mrs. Ortiz's assertion that the allegation that KCOS-LP 
did not have a main studio is not based on a physical  inspection 
but on  a phone  conversation with  then station  manager  Thomas 
Northcross is without merit.  On June 24, 2002, an agent from the 
San Diego Office went  to 6750 E. Main  Street, Suite 106,  Mesa, 
Arizona, the studio address provided  in response to a Letter  of 
Inquiry to Aracelis Ortiz.  The agent found no studio for KCOS-LP 
at  that  address.   What  the  agent  did  find  there  was  the 
transmitter site management  company.  The  agent's inability  to 
find a main studio at the address provided led to his first  hand 
determination that there was no  main studio for KCOS-LP at  that 
location.  The agent's  determination was subsequently  confirmed 
by the conversation  with Thomas Northcross,  in which he  stated 
that KCOS-LP did  not have  a main  studio in  operation at  that 
time.  Further,  although  Mrs.  Ortiz claims  to  have  been  in 
substantial compliance  with the  main studio  rule, we  look  to 
licensees to be  in full  compliance with the  rules, not  merely 
substantial compliance.  Moreover,  we have already  acknowledged 
Mrs. Ortiz's good faith  efforts to comply  with the main  studio 
rule and reduced the forfeiture accordingly.  Finally, Mrs. Ortiz 
asserts that the Bureau did not issue her a NOV prior to  issuing 
the NAL,  with an  opportunity  to comment  on the  alleged  rule 
violations.  However, nothing  in the Communications  Act or  the 
Commission's Rules requires the issuance  of an NOV prior to  the 
issuance of an NAL.12  Consistent with Section 1.80(f)(3),13 Mrs. 
Ortiz was afforded  30 days within  which to respond  to the  NAL 
(plus an extension of time), and she did respond.  Mrs. Ortiz was 
not deprived of an opportunity to  be heard on the matter of  the 
violations.    

          13.  There  is  no  evidence  that  Aracelis  Ortiz  is 
currently in compliance with Section  11.35(a) of the Rules  with 
respect to  the EAS  violation.   Accordingly, we  will  require, 
pursuant to  Section 308(b)  of the  Act,14 that  Aracelis  Ortiz 
report to the Enforcement  Bureau no more  than thirty (30)  days 
following  the  release  of  this  Order  how  she  has  achieved 
compliance with Section 11.35(a) of  the Rules.  The report  must 
be submitted  in the  form  of an  affidavit signed  by  Aracelis 
Ortiz.    

                      IV.  ORDERING CLAUSES

     14.  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 Aracelis Ortiz  IS LIABLE FOR  A MONETARY FORFEITURE  in 
the amount  of twelve  thousand dollars  ($12,000) for  willfully 
violating Sections 73.1125(c) and 11.35(a) of the Rules. 

          15.  IT IS FURTHER  ORDERED that,  pursuant to  Section 
308(b)  of  the  Act,  Aracelis  Ortiz  must  submit  the  report 
described in Paragraph 13, above, within no more than thirty (30) 
days  following   the  release   of   this  Order,   to   Federal 
Communications   Commission,    Enforcement   Bureau,    Spectrum 
Enforcement  Division,  445  12th  Street,  S.W.,  Room   7-A728, 
Washington, D.C. 20554, Attention: Jacqueline Ellington, Esq.

     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.16  
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.  200232940008,  and  FRN  0003-7552-87.   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. 20554.17

     17.  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 Aracelis Ortiz,  Executrix of the Estate of  Carlos 
Ortiz, P.O. Box 530391, Harlingen, Texas 78553.

                              FEDERAL COMMUNICATIONS COMMISSION
                    

                                                                  
                              David H. Solomon
                                                                 
Chief, Enforcement Bureau
           









_________________________

  1 47 C.F.R.  73.1125(c) and 11.35(a).

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232940008 (Enf. Bur., San Diego, September 30, 2002).



  3    According to the  response filed by  Mrs. Ortiz, the  main 
studio is now completed and is fully functional. 

  4   47 U.S.C.  503(b).

  5   47 C.F.R.  1.80.

  6   47 U.S.C.  503(b)(2)(D).

7      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).   

  8    See A-O Broadcasting Corporation, FCC 03-322 (December 29, 
2003)  (licensee  granted  good  faith  reduction  for   starting 
construction on its main studio prior to inspection). 

  9    See 47 C.F.R.  11.11. 

  10   See Access.1 Communications Corp.  - NY, DA 03-3412  (Enf. 
Bur., October 30, 2003) (good  faith reduction given where  tower 
owner identified the  need to  repaint the  tower, scheduled  the 
tower for repainting, and repainted the tower prior to any notice 
of inspections or issuance of the NAL).   

  11   See, e.g. Monroe Area Broadcasters, Inc., 18 FCC Rcd  6255 
(Enf. Bur. 2003).

  12   See AT&T Wireless  Services, Inc., 17  FCC Rcd 7891,  7895 
(2002).

  13   47 C.F.R.  1.80(f)(3).

  14  47 U.S.C.   308(b).

  15   47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  16   47 U.S.C.  504(a).

  17   See 47 C.F.R.  1.1914.