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


In the Matter of                 )    File No. EB-03-NY-080
                                )    File No. EB-03-NY-081
                                )
Kimtron, Inc.                    )    NAL/Acct. No. 200432380006
Stations WPTR(AM) and WDCD-FM    )
Blue Bell, Pennsylvania          )    FRN No.  0003-4129-62

                        FORFEITURE ORDER

Adopted:  February 8, 2005              Released:  February 10, 
2005

By the Assistant Chief, Enforcement Bureau:


I.   INTRODUCTION

     1.        In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of four thousand eight hundred 
dollars ($4,800) to Kimtron, Inc. (``Kimtron''), licensee of AM 
Station WPTR, Albany, New York and Station WDCD-FM, Clifton 
Park, New York, for willful and repeated violation of Sections 
11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A) of the 
Commission's Rules (``Rules'').1  The noted violations involve 
Kimtron's failure to conduct required monthly and weekly tests 
of the Emergency Alert System (``EAS'') and failure to maintain 
station records of required monthly and weekly EAS test 
messages.

     2.        On January 13, 2004, the Commission's New York, 
New York District Office (``New York Office'') issued a Notice 
of Apparent Liability for Forfeiture (``NAL'') to Kimtron for a 
forfeiture in the amount of six thousand dollars ($6,000).2  
Kimtron filed a response to the NAL on February 11, 2004.

II.  BACKGROUND

     3.        On June 4, 2003, a Commission agent conducted an 
inspection of the EAS equipment and records for Stations WPTR 
and WDCD-FM.  The two radio stations, which serve different 
communities, were using the same EAS equipment.  The agent found 
that over a six month period (December 2002 through May 2003), 
WPTR and WDCD-FM failed to conduct required weekly tests 
(``RWTs'') of the EAS header and EOM codes for 16 weeks: 
December 1, 2002 through January 11, 2003; January 19 - 25, 
2003; February 9 - 15, 2003; February 23 through March 15, 2003; 
April 6 - 19, 2003; April 27 through May 3, 2003; and May 18 - 
31, 2003.  The agent also found that the stations failed to 
conduct required monthly tests (``RMTs'') of the EAS header 
codes, Attention Signal, Test Script, and End of Message 
(``EOM'') code for December, 2002, January, 2003 and March 2003.

     4.       In addition, the agent found that the stations 
failed to maintain EAS equipment so that it was capable of 
receiving weekly EAS test messages, failed to maintain station 
records of RWTs received, or in the alternative, failed to enter 
into the log reasons why the tests were not received for 15 
weeks:  December 1, 2002 through January 25, 2003; February 23, 
2003 through March 8, 2003; March 30, 2003 through April 5, 
2003; April 13 - 19, 2003; April 27 through May 3, 2003; and, 
May 11- 24, 2003. The same problem existed for the RMTs received 
for December 2002, January 2003, and March 2003.    

     5.        On January 13, 2004, the New York Office issued 
the subject NAL to Kimtron for six thousand dollars ($6,000) for 
apparent willful and repeated violation of Sections 11.35(a), 
11.61(a)(1)(i), and 11.61(a)(2)(i)(A) of the Rules for the 
referenced EAS violations between December 1, 2002 through May 
31, 2003.  Kimtron responded to the NAL stating that it 
determined, based on its own investigation, that its EAS 
equipment was fully functional and programmed to receive all 
monthly and weekly EAS tests supplied by the Local Primary 
Station, Station WMHT-FM.  Kimtron alleges that Station WMHT-FM 
did not deliver its EAS obligation for RMTs during the months of 
December 2002, January 2003 and March 2003, Kimtron also states 
that its chief operator, who was charged with executing the RWTs 
and maintaining all EAS logs, failed to consistently perform his 
duties of executing or logging in the RWTs.  Kimtron states that 
it has discharged that engineer and replaced him with a 
qualified individual.  Kimtron maintains that it has a history 
of compliance with Commission Rules and requests that the 
proposed forfeiture be cancelled.

III.      DISCUSSION

     6.        The proposed forfeiture amount 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, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 
303 (1999) (``Policy Statement'').  In examining Kimtron'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.5

     7.        Section 11.61(a)(1)(i) of Rules requires broadcast 
stations to conduct RMTs of the EAS header codes, Attention 
Signal, Test Script, and EOM code that conforms to procedures in 
the EAS Operating Handbook, and Section 11.61(a)(1)(v).6  WPTR 
and WDCD-FM's station records failed to show that RMTs of the 
EAS header codes, Attention Signal, Test Script, and EOM code 
were received or transmitted for the months of December 2002, 
January 2003, and March 2003.  Kimtron was monitoring Station 
WMHT-FM for its EAS obligation and claims that WMHT-FM did not 
send EAS monthly tests for those three months.  Subsequent to 
the issuance of the NAL, the New York Office contacted WMHT-FM 
and, according to WMHT-FM's records, it did transmit an EAS 
monthly test in December 2002 and January 2003, but not in 
March, 2003.7  In March of each year, the National Weather 
Service (``NWS'') normally sends the RMT for Region 6 of New 
York.  In March of 2003, however, NWS did not send out a RMT due 
to adverse weather conditions.  Because WMHT-FM did not transmit 
an EAS test for March, 2003 to WPTR and WDCD-FM, the stations 
could not conduct that EAS test.  Based on evidence from WMHT-FM 
and the inspection, Kimtron failed to conduct RMTs in December, 
2002 and January, 2003.  

     8.        Section 11.61(a)(2)(i)(A) of the Rules requires 
broadcast stations to conduct required weekly tests of the EAS 
header and EOM codes at least once a week at random days and 
times.  For the six month period between December 1, 2002 and 
May 31, 2003, WPTR and WDCD-FM's station records indicate that 
Kimtron failed to conduct the RWTs of the EAS header and EOM for 
the 16 weeks as listed above.8  When the Field Office contacted 
WMHT-FM to determine if WMHT-FM transmitted EAS tests for the 
weeks in question, WMHT-FM replied that for five random weeks 
during the six-month period in question, WMHT-FM did not 
transmit EAS tests due to clerical errors.9   Because WMHT-FM 
did not transmit EAS tests for those five weeks to WPTR and 
WDCD-FM, the stations could not conduct those EAS tests.  
Kimtron, however, does not dispute that EAS tests were not 
broadcast for any of the weeks in question, attributing the 
inconsistent treatment of RWTs to the chief engineer whom it 
subsequently discharged.  Based on the evidence from WMHT-FM and 
the inspection, Kimtron failed to conduct RWTs for 11 weeks 
between December 1, 2002 and May 31, 2003.

     9.        Section 11.35(a) of the Rules requires broadcast 
stations to ensure that their EAS equipment  is installed so 
that the monitoring and transmitting functions are available 
during times that stations and systems are in operation.  
Additionally, broadcast stations must determine the cause of any 
failure to receive the required monthly and weekly EAS tests and 
make entries in the station records indicating the reasons why 
any tests were not received.  Kimtron failed to log RMTs 
received for the months of December, 2002 and January, 2003, 
failed to note that it did not receive a test for March, 2003, 
and failed to record a reason why the test was not conducted in 
March, 2003.  Further, Kimtron made no log entries of RWTs sent 
for the 15 weeks between December 1, 2003 and May 24, 2003, as 
listed above,10 nor did it note that it did not receive or log 
reasons why it did not receive RWTs for the five weeks the tests 
were not sent from WMHT-FM.   

     10.        We conclude that Kimtron willfully11 and 
repeatedly12 violated Sections 11.35(a), 11.61(a)(1)(i), and 
11.61(a)(2)(i)(A) of the Rules.  The Commission has consistently 
held that the licensee is responsible for its employees' 
actions, so Kimtron is liable for the actions of its chief 
engineer.13  Moreover, correction of the violations is expected 
and does not merit a reduction of the forfeiture amount.14 

     11.       We have examined Kimtron's response to the NAL 
pursuant to the statutory factors above, and in conjunction with 
the Policy Statement as well.  As a result of our review, we 
conclude that Kimtron willfully and repeatedly violated Sections 
11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A) of the Rules, 
but we find that the forfeiture for these violations should be 
reduced to $4,800 because of Kimtron's history of past 
compliance.15     

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,16 Kimtron, Inc. IS LIABLE FOR A 
MONETARY FORFEITURE in the amount of  four thousand eight 
hundred dollars ($4,800) for its willful and repeated violation 
of Sections 11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A) 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.17 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. 20554.18     

     14.       IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class and Certified Mail Return Receipt 
Requested to Kimtron, Inc., P.O. Box 3003, Blue Bell, 
Pennsylvania 19422, and to its counsel, John S. Neely, Esquire, 
Miller and Nelly, P.C., 6900 Wisconsin Avenue, Suite 704, 
Bethesda, Maryland 20815.

                              
                              FEDERAL COMMUNICATIONS COMMISSION
                    



                              George R. Dillon
                              Assistant Chief, Enforcement Bureau
_________________________

1 47 C.F.R.  11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A).   
2 Notice of Apparent Liability for Forfeiture, File No. EB-03-NY-
080, EB-03-NY-081, NAL/Acct. No. 200432380006 (Enf. Bur., New 
York Office, released January 13, 2004).     
3  47 U.S.C.  503(b).
4  47 C.F.R.  1.80.
5  47 U.S.C.  503(b)(2)(D).
6 47 C.F.R.  11.61(a)(1)(v).
7 The New York Office contacted the chief engineer for WMHT-FM 
who confirmed this information by correspondence dated November 
19, 2004.
8  See para. 3, supra.
9  See note 7, supra.
10 See para. 4, supra.
11 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 ....''  Southern California Broadcasting Co., 6 FCC 
Rcd 4387 (1991).
12 As provided by 47 U.S.C.  312(f)(2), ``[t]he term `repeated',  
when used with reference to the commission or omission of any 
act, means the commission or omission of such act more than once 
or, if such commission or omission is continuous, 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).  Southern California Broadcasting Co., supra.
13 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64 
(2002). 
14 AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002); 
Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994). 
15 KGB, Inc., 13 FCC Rcd 16396, 16398  8 (1998).  
16 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
17 47 U.S.C.  504(a).
18 See 47 C.F.R.  1.1914.