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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Farmworkers Educational Radio )
Network, Inc. File Number: EB-05-SD-072
Licensee of Station KCEC-FM NAL/Acct. No.: 200532940003
Wellton, Arizona FRN: 0010057685
Facility ID #21207
MEMORANDUM OPINION AND ORDER
Adopted: February 28, 2007 Released: March 2, 2007
By the Assistant Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended ("Act"), and Section
1.106 of the Commission's Rules ("Rules"), we deny a Petition for
Reconsideration ("Petition") filed on July 31, 2006, by Farmworkers
Educational Radio Network, Inc. ("Farmworkers"), licensee of KCEC-FM,
of a Forfeiture Order imposing an eight thousand dollar ($8,000)
monetary forfeiture penalty against Farmworkers for repeated violation
of Section 11.35 of the Rules. The noted violation involves
Farmworkers' failure to ensure the operational readiness of KCEC-FM's
emergency alert system ("EAS") equipment. For the reasons discussed
below, we affirm the Forfeiture Order.
2. On April 8, 2005, an agent from the Commission's San Diego Office
conducted an inspection at the main studio of KCEC-FM located at 670
E. 32^nd Street, Suite 12A, Yuma, Arizona. Although EAS equipment was
installed, the agent found that it was not operational at the time of
inspection. It was subsequently determined, and conceded by
Farmworkers, that the EAS receiver was not plugged in. Initially,
during the inspection, the agent determined that no audio from the EAS
receiver for the designated first and second local primary stations
("LP-1" and "LP-2") could be heard. At the request of the agent, the
designated LP-1 and LP-2 stations ran a required weekly test ("RWT")
during this inspection and the station's EAS equipment did not detect
the activation. A review of the EAS log and printouts generated by the
EAS encoder/decoder indicated that from January 2004 through April
2005, only four monthly tests ("RMT") were received from the local
primary stations and none of these tests were retransmitted. EAS logs
also indicated that numerous RWTs were not transmitted by KCEC-FM and
numerous RWTs were not received from either designated LP-1 or LP-2
stations during this same period. No entries were made by KCEC-FM
staff in the EAS log to identify the causes of these failures or what
steps were taken to remedy any failures.
3. On April 22, 2005, the San Diego agent spoke with KCEC-FM's Chief
Engineer. The Chief Engineer acknowledged that problems were found
with the EAS equipment during the engineer's inspection of the
station's EAS equipment on April 9, 2005. Specifically, he indicated
that the EAS equipment was originally set for the automatic mode to
receive and to forward the information received for the tests from the
local primary stations. However, the EAS equipment was switched to the
manual mode, requiring a staff person to manually resend the RMT.
Also, the Chief Engineer indicated that the EAS receiver was not
connected properly to a power source which explained why the tests
sent by the LP-1 and LP-2 had not been received by KCEC-FM.
4. On July 20, 2005, the Enforcement Bureau's San Diego Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$8,000 to Farmworkers, finding that Farmworkers apparently repeatedly
failed to ensure the operational readiness of the KCEC-FM EAS
equipment. Farmworkers filed a response to the NAL on August 22, 2005
("Response"). In its Response, Farmworkers argued that the San Diego
agent found overall compliance with the Commission's Rules, and that
the only violations discovered concerned the EAS equipment and
logging. While Farmworkers acknowledged lapses in the station's EAS
monitoring and logging, it contended that KCEC-FM made a conscientious
effort to comply with the EAS Rules; that the EAS transmission
equipment was at all times fully operational; that the station had
most of the required logging slips; and that if someone had not
"jostled loose" the plug on the EAS receiver, the station would have
been in full compliance. Farmworkers also argued that the violation
was minor, that KCEC-FM had an overall history of compliance with the
Rules, and that it was entitled to a reduction based on its good faith
and its voluntary disclosure of the facts and circumstances in this
5. On June 29, 2006, after reviewing Farmworkers' Response, the Western
Region, Enforcement Bureau, released the Forfeiture Order, and imposed
a $8,000 forfeiture on Farmworkers for its repeated violation of
Section 11.35 of the Rules. In the Forfeiture Order, the Western
Region found that KCEC-FM EAS equipment was not fully operational at
all times and that no-one at the station had noticed the equipment
failure caused by the "jostled loose" equipment plug until the San
Diego agent's discovery of the failure during the inspection. The
Western Region also found that KCEC-FM did not have most of its
required logging slips, and that the violation was not minor because
the failure of the receiver resulted in a failure of the KCEC-FM EAS
system. In addition, the Western Region determined that Farmworkers
was not entitled to a reduction in the forfeiture amount because
Farmworkers did not have an overall history of compliance with the
Commission's Rules, that Farmworkers did not meet the requirements for
a good faith reduction, and that Farmworkers staff did not make
voluntary disclosures to the Commission prior to the inspection by the
San Diego Office.
6. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters. A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied. Farmworkers raises four
arguments in its Petition, which we address in turn.
7. In its first argument, Farmworkers alleges that the Western Region
erred in assessing the "maximum forfeiture" of $8,000 for what was
"clearly a mistake." Farmworkers argues that the Forfeiture Order
cites to its logging violations and states that Section 1.80 of the
Rules requires only a $1,000 forfeiture amount for logging violations.
We disagree. Section 1.80 of the Rules lists $8,000 as the base, and
not the maximum, forfeiture for "EAS equipment not installed or
operational." As the Western Region determined in the Forfeiture
Order, Farmworkers failed to produce "evidence to refute the San Diego
Office's finding that no audio from the RWTs transmitted by the LP-1
and LP-2, at the request of the San Diego agent, could be heard from
the station's EAS receiver. Farmworkers, and the Chief Engineer,
acknowledge that the EAS receiver was not plugged in, and the Chief
Engineer acknowledges that only after he restored power to the EAS
receiver did the lights indicating audio on the receiver's front panel
as well as on the encoder/decoder light up." We agree with the Western
Region that in this scenario, Farmworkers failed to ensure the
operational readiness of the KCEC-FM EAS equipment and that the
appropriate base forfeiture amount is $8,000. We also find that the
Western Region's reliance on the review of EAS equipment logs and
printouts is appropriate as an element of its consideration of a
violation of Section 11.35.
8. Farmworkers also argues that the assessment of $8,000 for this
violation is inapposite to an Enforcement Bureau order, Palmetto
Broadcasting Company, Inc.("Palmetto"), in which "the licensee [had]
no records or tests or activations of the station's EAS system [and]
no reasons for the failure to receive and conduct such tests nor
entries showing EAS equipment had been removed from service for
repair. Further the station's general manger stated he could not
remember when the station had last conducted a test. The Chief of the
Enforcement Bureau, however, cancelled a portion of the amount of the
proposed forfeiture with no adverse action whatsoever." We have
reviewed the Palmetto case, in which the Enforcement Bureau cancelled
a forfeiture assessed to Palmetto for violating Section 11.61 of the
Rules, concerning the requirement that broadcast stations conduct
monthly EAS tests. Contrary to the description of the Palmetto case by
Farmworkers in its Petition, the Section 11.61 forfeiture was
cancelled because Palmetto produced a sworn statement from the
station's general manager stating that it did monitor and conduct
weekly and monthly tests as of the date of the inspection and for at
least three months immediately prior. Thus the original finding of a
willful and repeated violation of the Commission's logging requirement
was no longer supported by the available evidence. In the present
case, Farmworkers produced no such evidence to refute the findings of
the San Diego Office, relative to Farmworkers' failure to receive and
transmit RWTs and RMTs and its failure to have the EAS equipment
plugged in, as stated in the Forfeiture Order.
9. In its second argument, Farmworkers alleges that the Western Region
rejected its request for a downward reduction of the forfeiture amount
because KCEC-FM has an overall history of compliance with the
Commission's Rules. When considering an overall history of compliance
claim, the Commission considers all the past violations of the
licensee, not just those concerning one station, and will also impute
findings of violations against parent, sister or commonly controlled
companies, to the licensee. In this case, we find that the Western
Region correctly considered a recent forfeiture order issued against
Farmworkers' station KRIT, while considering Farmworkers' request for
a reduction based on an overall history of compliance. We therefore
find no merit to this argument.
10. In its third argument, Farmworkers argues that the Western Region
erred in determining that the downward adjustment for a minor
violation did not apply because, according to Farmworkers, the
national EAS has never been activated and that a major violation would
be not having EAS equipment. Farmworkers then argues that under the
Western Region's interpretation, any violation of the Rules would
always be a major violation. While the Commission will reduce a
forfeiture amount if a violation is relatively minor, within the
particular category of violation, we find that the Western Region
correctly determined that Farmworkers' violation of Section 11.35 was
not minor. Contrary to Farmworkers' assertions, Section 11.35 does not
merely require that licensees obtain EAS equipment, nor does Section
11.35 require that licensees only obtain and install EAS equipment.
Section 11.35(a) specifically requires licensees to "ensure that EAS
encoders 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 the times the stations and
systems are in operation." As the Western Region correctly determined,
those functions were not available at the time of the San Diego
agent's inspection of the KCEC-FM EAS equipment because it was
unplugged, and, according to the KCEC-FM EAS printouts and logs, those
functions were consistently unavailable for several months prior to
11. In its final argument, Farmworkers argues that the Western Region
erred in not taking into account Farmworkers' good faith efforts to
comply with the Rules and the San Diego agent, by concentrating solely
on the fact that Farmworkers did not voluntarily disclose its EAS
violation to the San Diego agent. We disagree. We find that the
Western Region considered Farmworkers' good faith and voluntary
disclosure arguments and rejected each one, individually. The Western
Region specifically considered Farmworkers' argument concerning its
good faith efforts and stated that "[a] good faith reduction is
permissible when a licensee notices a violation and attempts to remedy
it before the Commission conducts its inspection, or, it provides
evidence of an established compliance program in place, prior to the
Commission's involvement. Farmworkers meets neither standard." We
therefore find no merit to this argument.
12. We have considered the arguments raised by Farmworkers in its Petition
and find that none of them persuades us to reduce or cancel the
forfeiture. We, therefore, deny the Petition.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, Farmworkers Educational Radio Network, Inc.'s
Petition for Reconsideration, filed July 31, 2006, IS DENIED.
14. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Farmworkers
Educational Radio Network, Inc. IS LIABLE FOR A MONETARY FORFEITURE in
the amount of eight thousand dollars ($8,000) for violation of Section
11.35 of the Rules.
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,
445 12^th Street, SW, Room 1-A625, Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by regular mail and by certified mail, return receipt requested,
to Farmworkers Educational Radio Network, Inc., at its address of
record, and Anne Thomas Paxson, Esquire, Borsari and Paxson, its
counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
47 U.S.C. S 405.
47 C.F.R. S 1.106.
We note that the FCC authorization for KCEC-FM lists the licensee as
Farmworkers Educational Radio Network, Inc., as opposed to Farmworker
Educational Radio Network, Inc. We therefore use the name of the licensee
as stated on the authorization in the caption and throughout this
Memorandum Opinion and Order.
Farmworkers Educational Radio Network, Inc., 21 FCC Rcd 6959 (EB 2006)
47 C.F.R. S 11.35.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532940003
(Enf. Bur., Western Region, San Diego Office, released July 20, 2005).
See 47 C.F.R. S 1.106(c); EZ Sacramento, Inc., 15 FCC Rcd 18257, (EB
2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain
Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.
EZ Sacramento, Inc., 15 FCC Rcd at 18257.
47 C.F.R. S 1.80(b)(4), Note to Paragraph (b)(4).
Forfeiture Order at para. 9.
Palmetto Broadcasting Company, Inc., 19 FCC Rcd 17718 (EB 2004).
Petition at 3.
47 C.F.R. S 11.61.
See, e.g., Petracom of Texarkana, L.L.C., 19 FCC Rcd 8096 (EB 2004).
See Farmworker Educational Radio Network - Licensee of FM Station KRIT, 20
FCC Rcd 14294 (EB 2005). We note that Farmworkers has paid this
Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994).
47 C.F.R. S 11.35(a). See also, Twenty-One Sound Communications, Inc., 20
FCC Rcd 12497 (EB 2005), Application for Review pending.
Forfeiture Order at para. 13. See Aquila, Inc., 19 FCC Rcd 22507 (EB
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 C.F.R. S 11.35.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-934
Federal Communications Commission DA 07-934