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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Three Angels Broadcasting Network,
Inc. ) File Number: EB-06-LA-129
Licensee of Station K43FO ) NAL/Acct. No.: 200732900004
Las Vegas, Nevada ) FRN: 0003716198
Facility ID # 14302 )
Adopted: September 10, 2007 Released: September 12, 2007
By the Regional Director, Western Region, 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 Three
Angels Broadcasting Network, Inc. ("3ABN"), licensee of Class A
television station K43FO, in Las Vegas, Nevada, for repeated violation
of Section 11.35(a) of the Commission's Rules ("Rules") by failing to
ensure the operational readiness of K43FO's Emergency Alert System
("EAS") equipment. On January 31, 2007, the Enforcement Bureau's Los
Angeles Office issued a Notice of Apparent Liability for Forfeiture
("NAL") in the amount of $8,000 to 3ABN for failing to ensure the
operational readiness of K43FO's Emergency Alert System ("EAS")
equipment. In this Order we consider 3ABN's arguments that the facts
of the case are in dispute and that the forfeiture should be rescinded
because 3ABN immediately took steps to correct the EAS issues. We also
consider 3ABN's request that we reduce the forfeiture based on its
history of compliance with the Rules.
2. On May 16, 2006, in the course of a routine EAS inspection, an agent
of the Enforcement Bureau's Los Angeles office met with 3ABN's local
technical representative in Las Vegas who told the Los Angeles agent
that the K43FO EAS receivers could not receive their assigned local
primary ("LP") stations, a situation that the technical representative
had made 3ABN aware of a year earlier. On May 17, 2006, the Los
Angeles agent inspected the EAS equipment installed at the K43FO
transmitter site in Las Vegas. The inspection revealed that the K43FO
EAS receivers were not receiving intelligible transmissions from their
assigned EAS LP stations serving the Las Vegas area, and there were no
local logs or other evidence that the EAS equipment had been receiving
and/or retransmitting tests or alerts from the LP stations. The
inspection also revealed that the K43FO EAS equipment was capable of
originating a manual weekly test.
3. On July 13, 2006, the Los Angeles Office sent a Letter of Inquiry
("LOI") to 3ABN regarding the operational readiness of the K43FO EAS
equipment. The Los Angeles Office also requested copies of the K43FO
EAS logs documenting the functionality of the EAS equipment, for the
period January through May, 2006. On July 20, 2006, 3ABN responded to
the LOI, stating that "[d]ue to various technical reasons K43FO was
unable to unreliably [sic] receive the LP station tests." 3ABN did not
provide the requested EAS logs.
4. On August 7, 2006, a Los Angeles agent contacted a 3ABN Engineer
concerning the K43FO EAS equipment and its operational readiness. The
engineer stated that he had no records concerning the K43FO EAS
equipment but indicated to the agent that the EAS equipment most
likely failed in the Fall of 2005, when the landlord of the site moved
the K43FO transmitter.
5. On January 31, 2007, the Enforcement Bureau's Los Angeles Office
issued the NAL in the amount of $8,000 to 3ABN for violating Section
11.35(a) of the Rules. 3ABN filed a response ("Response") to the NAL
on March 19, 2007. In its Response, 3ABN disputes the facts presented
in the NAL, and argues that the forfeiture should be rescinded because
3ABN immediately took steps to correct the EAS issues. 3ABN also
requests that we reduce the forfeiture based on its history of
compliance with the Rules.
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"). In examining 3ABN'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
7. Section 11.35 of the Rules requires all broadcast stations to ensure
that EAS encoders, EAS decoders and attention signal generating and
receiving equipment is installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. Broadcast stations must also determine
the cause of any failure to receive required monthly and weekly EAS
tests, and must indicate in the station's log why any required tests
were not received and when defective equipment is removed and restored
8. Section 11.61(a)(1) and (2) of the Rules requires broadcast stations
to (a) receive monthly EAS tests from designated local primary EAS
sources and retransmit the monthly test within 60 minutes of its
receipt and (b) conduct tests of the EAS header and EOM codes at least
once a week at random days and times. The requirement that stations
monitor, receive and retransmit the required EAS tests ensures the
operational integrity of the EAS system in the event of an actual
disaster. Appropriate entries must be made in the broadcast station
log as specified in Sections 73.1820 and 73.1840, indicating reasons
why any tests were not received or transmitted.
9. 3ABN disputes the facts as described in the NAL. First, 3ABN states it
first became aware of the "alleged EAS problem at K43FO" on May 16,
2006 when the Los Angeles agent met with a "technical representative"
of the station. 3ABN argues that the individual the agent met with was
not a technical representative and includes a declaration with its
Response in which this individual states that he never made the
statements described in the NAL concerning the K43FO EAS equipment.
3ABN argues that the agent should have talked with the station's chief
operator, who was hired officially a few days after the Los Angeles
agent's inspection, and who had been acting informally in that
capacity prior to the time of the inspection. According to the agent's
records and case report, the "technical representative" that he spoke
with on May 16, 2006, was in fact the individual 3ABN asserts was the
appropriate person the agent should have spoken with and indeed, was
the same individual who was acting unofficially for 3ABN as the chief
operator and later hired as the chief operator of K43FO. We note that
the Response contains no declaration from the K43FO chief operator.
10. 3ABN also disputes that the K43FO EAS logs were unavailable at the
time of the May 16, 2006, inspection, and provides a copy of those
logs. We note that not only was the Los Angles agent unable to obtain
a copy of these logs at the time of the inspection, 3ABN failed to
produce a copy, as requested, to the Los Angeles Office in response to
the LOI. Consequently, we affirm the Los Angeles Office's
determination that the EAS logs were unavailable. The newly discovered
logs consist of four pages of handwritten notes, covering EAS and
other technical inspections at the station, from October 7, 2005 to
May 21, 2006. There are no entries or tapes concerning the receipt and
transmission of the RWT's and RMT's until May 21, 2006, with the
exception of a RWT received May 9, 2006, and a March 25, 2006, entry
which reads "no monthly [RMT] received, sent monthly manual." An April
15, 2006, entry reads "email to Dan about EAS paper and reception
problems." The rest of the logs include several pages of tapes and
logs from May 21, 2006 through June, 2006, and then automated logs
from September 2006 through January 2007. In his May 21, 2006 report,
the K43FO chief engineer writes that he "went to verify reception and
noted that neither reciver [sic] was picking up the lp station." In
fact, 3ABN acknowledges in its Response that at the time of the May
16, 2007, inspection, K43FO was receiving neither the LP-2 station nor
the LP-1 station tests and that on May 21, 2006, because of repairs
made by the chief engineer, the EAS equipment was able to receive the
LP-2 station, but was unable to receive the LP-1 station until the end
of July 2006.
11. 3ABN argues that when it became aware of the deficiencies in the K43FO
EAS system in May 2006, it took immediate steps to remedy those
problems. It argues that it succeeded in remedying those problems
within the sixty period allotted by Section 11.35(b) of the Rules,
which states that "[i]f the EAS Encoder or Decoder becomes defective,
the broadcast station . . . may operate without the defective
equipment pending its repair or replacement for 60 days without
further FCC authority." 3ABN argues that because the station's EAS
problems were addressed as soon as possible upon discovery, the
forfeiture should be rescinded. We disagree. 3ABN apparently only took
action regarding the lack of operational readiness of the K43FO EAS
equipment because of the Los Angeles agent's inspection on May 16,
2006. 3ABN maintains that its lack of operational readiness prior to
May 16, 2006, did not extend for many months, as implied by the NAL.
However, according to its EAS logs, 3ABN has no entries concerning the
receipt or transmission of EAS RMTs from October 7, 2005, until May
31, 2006, with the exception of the entry that noted that no RMT was
received on March 25, 2006. Section 11.61 of the Rules requires all
RMT and RWT tests to "conform with the procedures in the EAS Operating
Handbook." For RMTs, the FCC EAS TV Handbook instructs stations, to
"[l]og receipt and transmission of the test." Prior to the May 21,
2006, there is no evidence that any RMTs were received or transmitted
by K43FO as early as October 7, 2005, the first date entered in the
proffered EAS logs. While 3ABN offers many excuses for its apparent
lack of logs, including its reliance on volunteers to change the
ribbon in the EAS equipment, its inability to obtain paper because of
delivery problems, and a leak in the roof which ostensibly damaged
some of its records, we find that none of them support a finding that
the EAS equipment was operational. Had 3ABN been able to produce
records showing that the K43FO EAS equipment was operational for less
than 60 days prior to the repairs performed by the chief engineer on
May 21, 2006, and that 3ABN was taking action to repair or replace the
EAS equipment prior to the Los Angeles agent's inspection, then we
would agree that Section 11.35(b) may apply to their situation.
However, 3ABN is asking us to find that a licensee may take advantage
of a sixty-day period to repair or replace its non-operational EAS
equipment and to begin the 60 days when the licensee is notified of
the violation by the Commission, regardless of when the problem
actually began. We decline to do so. 3ABN's proposed interpretation
would be particularly problematic in the instant case, where the
licensee has not maintained the proper logs and records required by
the Rules and the FCC EAS TV Handbook so that the Commission can
ascertain when the lack of operational readiness began. Consequently,
we find that Section 11.35(b) does not apply to this situation and
that 3ABN repeatedly failed to ensure the operation readiness of the
K43FO EAS equipment.
12. 3ABN also asks that the forfeiture amount be reduced based on its
overall history of compliance with the Commission's Rules. We have
reviewed our records and we concur. Consequently, we reduce 3ABN's
forfeiture amount from $8,000 to $6,400.
13. Based on the information before us, having examined it according to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement, we find that reduction of the proposed forfeiture to
$6,400 is warranted.
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Three Angels
Broadcasting Network, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $6,400 for repeatedly violating Section 11.35(a) of the
15. 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. 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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-
6106. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Three Angels
Broadcasting Network, Inc., at its address of record, and David M.
Silverman, Esquire, Davis Wright Tremaine, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 C.F.R. S: 11.35(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732900004
(Enf. Bur., Western Region, Los Angeles Office, released January 31,
3ABN requested and received an extension of time to respond to the NAL.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 11.35(a) and (b).
The required monthly and weekly tests are required to conform to the
procedures in the EAS Operational Handbook. See also, Amendment of Part 11
of the Commission's Rules Regarding the Emergency Alert System, 17 FCC Rcd
47 C.F.R. S:S: 73.1820 and 73.1840.
There were two conversations conducted by the Los Angeles agent, one on
May 16, 2006, with the technical representative for 3ABN, who later became
the chief operator for K43FO, and one on May 17, 2006, with a different
individual, who was not the technical representative, and who signed a
declaration for the 3ABN Response.
The engineer from 3ABN who told the Los Angeles agent, on August 7, 2006,
that the EAS equipment most likely failed in the Fall of 2005 recants that
statement in a declaration included in the Response, and now states that
his records show that he personally verified the operation of the system
on October 5, 2005.
47 C.F.R. S: 11.35(b).
We note that 3ABN has produced no evidence that it made efforts to repair
or replace the K43FO EAS equipment after the March 25, 2006, entry in its
log that no RMT was received.
47 C.F.R. S: 11.61(a).
FCC EAS TV Handbook at p. 30.
Additionally, because the repairs performed by the chief engineer occurred
only after the Los Angeles agent's inspection, we find that they cannot be
a basis to reduce the forfeiture amount. The Commission has consistently
held that a licensee is expected to correct errors when they are brought
to the licensee's attention and that such correction is not grounds for a
downward adjustment in the forfeiture. AT&T Wireless Services, Inc. 17 FCC
Rcd 21866, 21871-76 (2002).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 11.35(a).
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-3880
Federal Communications Commission DA 07-3880