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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
O'hana Radio Partners ) File Number: EB-03-HI-057
Licensee of Station KAWV(FM) )
Lihue, Hawaii ) NAL/Acct. No.
) FRN 0004059317
Adopted: February 24, 2005 Released: February 28,
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand four hundred
dollars ($6,400) to O'hana Radio Partners (``O'hana''), licensee
of FM radio Station KAWV, Lihue, Hawaii, for willful and repeated
violation of Section 11.35(a) of the Commission's Rules
("Rules").1 The noted violation involves O'hana's failure to
have Emergency Alert System (``EAS'') equipment installed and
operational at Station KAWV.
2. On March 22, 2004, the Commission's Honolulu, Hawaii
Resident Agent's Office (``Honolulu Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to O'hana for a
forfeiture in the amount of eight thousand dollars ($8,000).2
3. On July 1, 2003, agents from the Honolulu Office
monitored Station KAWV, 98.1 MHz, from 11:10 a.m. until 12:35
p.m. HST. During this period, the EAS required monthly test,
issued by the Hawaii State Civil Defense at approximately 11:13
a.m. HST, was not retransmitted. On July 1, 2003, agents from
the Honolulu Office inspected Station KAWV's main studio, located
in the Puhi Industrial Park at Leleiona Road, Lihue, Hawaii. The
EAS equipment was not installed such that the monitoring and
transmitting functions of the equipment were available during the
times the station was in operation. The station manager advised
the agents that EAS equipment had never been completely installed
since the station began operation in August of 2002, and that the
station was still awaiting correct parts to complete the EAS
4. On March 22, 2004, the Honolulu Office issued an NAL to
O'hana. The NAL found that O'hana had apparently willfully and
repeatedly violated Section 11.35(a) of the Rules by failing to
have EAS equipment installed and operational at Station KAWV.
O'hana responded to the NAL on April 21, 2004. In its response,
O'hana admits the violation but, nevertheless, requests
cancellation or reduction of the forfeiture. In support of its
request, O'hana asks the Enforcement Bureau to consider that: it
has corrected the violations; it does not have the ability to pay
the proposed forfeiture; it has no other violations of record;
and as a small business, the fine is disproportionate to the size
of its business.
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''),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) (``Forfeiture Policy Statement''). Section 503(b) of
the Act requires that the Commission, in examining O'hana's
response, 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
6. Section 11.35(a) of the Rules requires all broadcast
stations to ensure that EAS encoders, EAS decoders, and attention
signal generating and receiving equipment used as part of the EAS
are installed and operational so that the monitoring and
transmitting functions are available during the times the station
is in operation. On July 1, 2003, O'hana did not have
operational EAS equipment installed at Station KAWV. No station
records existed to indicate that the EAS equipment was ever
functional at any time since Station KAWV began operation in
August of 2002. Thus, we find that O'hana willfully6 and
repeatedly7 violated Section 11.35(a) of the Rules.
7. O'hana argues that the amount of the forfeiture should
be reduced from the maximum to a much smaller amount to properly
reflect the size of its business. O'hana's reliance on its small
business status alone will not suffice;8 it must still
substantiate its inability to pay claim with financial
documentation.9 When considering an inability to pay claim,
the Commission has determined that, in general, a licensee's
gross revenues are the best indicator of its ability to pay a
forfeiture.10 The Commission has also concluded that it is
appropriate to take into account ``income derived from other
affiliated operations, as well as the financial status of the
station(s) in question.''11 O'hana, which is a partnership, has
provided some but not all of its financial documentation.
Although O'hana provided its 2003 partnership federal income tax
return, it did not provide the tax returns of its partners, which
are relevant to the issue of whether the partnership has the
ability to pay the forfeiture. For 2002, O'hana provided the tax
return of its majority partner, but did not provide its own tax
return, nor did it provide the tax returns of its other partners.
For the tax year 2001, O'hana provided its partnership federal
income tax return and that of its majority partner, but it did
not provide the tax returns of its other partners.12 Because
O'hana has not provided all of its financial documentation, we
find that it has not provided sufficient documentation to support
its inability to pay claim.13
8. Finally, although O'hana claims to have made the
appropriate corrections to the EAS equipment, 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.''14 However, consistent with
O'hana's claim, we do find that it has a history of overall
compliance with the Commission's rules and reduce the forfeiture
amount to $6,400.
III. ORDERING CLAUSES
9. 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 O'hana Radio Partners IS LIABLE FOR A MONETARY
FORFEITURE in the amount of six thousand four hundred dollars
($6,400) for willful and repeated violation of Section 11.35(a)
of the Rules.
10. 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
11. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail, return receipt requested, to O'hana
Radio Partners, 41-625 Eclectic Street, # J-1, Palm Desert,
California 92260 and its counsel, James Primm, Esq., 2225 Skyway
Drive, Santa Maria, California 93455.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. §§ 11.35(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432860003 (Enf. Bur., Honolulu Office, released March 22,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 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 (1991), recon. denied, 7 FCC Rcd 3454 (1992).
7 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.
8 See Forfeiture Policy Statement, 12 FCC Rcd at 17109 paras. 51-
52 (finding that the Commission's forfeiture policies and
precedent is consistent with the requirements of Section 223 of
the Small Business Regulatory Enforcement fairness Act of 1996,
Pub. L. 104-121, 110 Stat. 847 (1996), because the agency
considers, among other factors, inability to pay, good faith
efforts, participation in alternative compliance programs, in
9 See, e.g., Jerry Szoka, 14 FCC Rcd 20147, 20150 paras. 9-10
(1999); Bay Broadcasting Corp., 15 FCC Rcd 13613, 13615-16 para.
8-9 (Enf. Bur. 2000); Merichem Sasol LLC, 15 FCC Rcd 8450, 8452
para. 4 (WTB 1999).
10 PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
11 KASA Radio Hogar, Inc., 17 FCC Rcd 6256, 6258 (2002) (quoting
Emery Telephone, 13 FCC Rcd 23854, 23859-60 (1998) (emphasis
added), recon. denied, 15 FCC Rcd 7181 (1999)).
12 Although O'hana did not come into existence until January 1,
2001, it also provided the 2000 federal income tax return for its
13 See KASA Radio Hogar, Inc., 17 FCC Rcd at 6259. We note that,
although we do not have all of O'hana's financial documentation
before us, based on our review of the financial information
provided thus far, it appears that O'hana's gross revenues would
not support an inability to pay reduction of the forfeiture. We
further note that if O'hana provides the missing documentation,
consistent with PJB, we would analyze the combined gross receipts
of its partners to determine its ability to pay the forfeiture.
Therefore, any additional gross receipts reflected in the missing
financial documentation would only increase O'hana's total gross
receipts and, consequently, further demonstrate an ability to pay
14 See also AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875
(2002); Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
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.