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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Omni Communications, Inc. EB-07-DL-075
Licensee of Station KWOX NAL/Acct. No. 200732500006
Woodward, Oklahoma FRN: 0003752904
Facility ID # 50332
Adopted: June 11, 2008 Released: June 13, 2008
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eight thousand dollars ($8,000) to Omni Communications,
Inc. ("Omni"), licensee of station KWOX, in Woodward, Oklahoma, for
willful and repeated violation of Section 11.35(a) of the Commission's
Rules ("Rules"). The noted violation involves Omni's failure to
ensure that Emergency Alert System ("EAS") equipment was installed so
that the monitoring and transmitting functions were available during
the times the station was in operation.
2. On May 2, 2007, an agent from the Commission's Dallas Office of the
Enforcement Bureau ("Dallas Office") inspected the main studio for
station KWOX in Woodward, Oklahoma. The EAS unit had no audio signal
on two of the three connected inputs. The unit's date was set to
1/10/1995 and would not accept a date or time correction. The unit was
set to automatically retransmit monthly tests. A review of the EAS
logs for the previous five months found no entries for received weekly
or monthly tests or sent monthly tests. The station attached eight
printouts dated in January and February 1995 showing weekly tests sent
to log entries for eight days in February, March, April, and May 2007.
There were no log entries indicating why the missing weekly and
monthly tests were not received or sent.
3. On October 23, 2007, the Dallas Office issued a Notice of Apparent
Liability for Forfeiture to Omni in the amount of eight thousand
dollars ($8,000), for the apparent willful and repeated violation of
Section 11.35(a). Omni submitted a response to the NAL requesting
cancellation of the proposed forfeiture.
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("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, 12 FCC Rcd 17087 (1997), recon.
denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement"). In
examining Omni'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.
5. 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 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
to service. The EAS protocol includes the day in Julian calendar days,
the time the message was released and a valid time period for the
6. During the inspection on May 2, 2007, station KWOX's EAS
encoder/decoder was not operational, because it was missing audio
inputs and the unit would not accept a correction to the date or time.
Without the correct date and time, the unit could not properly
validate any received or transmitted messages, and, therefore, would
discard received messages and not automatically retransmit received
messages. Station KWOX's EAS unit was set to automatically retransmit
monthly tests. The logs showed no weekly or monthly tests received or
monthly tests sent for at least five months prior to the inspection
and contained no explanation for the missing weekly and monthly
received and sent tests. There was no other evidence that the
equipment was fully operational during this five-month period.
7. In response to the NAL, Omni states that despite the fact that the
station's EAS encoder/decoder was missing audio inputs and had a
date/time malfunction, the station sent and received all required EAS
tests. To support its assertion, Omni submitted copies of its program
logs from January through June 2007. Therefore, it claims its EAS unit
was functional and able to transmit and receive EAS tests.
8. Assuming that Omni's program logs are accurate, we nevertheless find
that Omni's EAS encoder/decoder was not fully operational. Although
Omni was able to transmit many weekly tests, its program logs show
that it failed to transmit any monthly EAS tests. Station KWOX could
not re-transmit any monthly EAS tests, because the equipment was
incapable of receiving any EAS tests, due to the date time problem.
Moreover, even if the station had received a monthly test, Station
KWOX could not automatically transmit a monthly test, because the EAS
encoder/decoder, which was set to operate in automatic mode, was
incapable of operating in automatic mode, due to the date time
problem. In order for the station to transmit monthly tests or actual
emergency alerts, someone would have to be sitting near the EAS
encoder/decoder when the test or message was received and then
manually transmit the test or message. Although the rules allow for
the manual interrupt of programming and transmission of EAS messages,
monthly EAS tests messages must be sent within 60 minutes of receipt
and Emergency Action Notification ("EAN") event codes must be
transmitted immediately. Between January and June 2007, Omni failed to
transmit any monthly EAS tests, despite its assertions that it was
monitoring several news and weather sources. Because Omni's staff was
not ready to transmit monthly EAS tests within 60 minutes or EAN event
codes immediately, the transmitting function for monthly EAS tests and
EAN messages was effectively unavailable. Therefore, based on the
evidence before us, we find that Omni willfully and repeatedly
violated Section 11.35(a) of the Rules by failing to ensure its EAS
equipment was fully operational.
9. We have examined Omni's response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Omni willfully
and repeatedly violated Section 11.35(a) of the Rules. We find no
basis for cancellation or reduction of the $8,000 forfeiture proposed
for this violation.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Omni Communications, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of eight thousand
dollars ($8,000) for violation of Section 11.35(a) of the Rules.
11. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment[s] by wire transfer may
be made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Omni will also send electronic notification on the date said payment
is made to SCR-Response@fcc.gov.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Omni
Communications, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S: 11.35(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732500006
(Enf. Bur., Dallas Office, October 23, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 11.35(a).
47 C.F.R. S:S: 11.35(a), (b).
47 C.F.R. S: 11.31.
Some EAS units can be programmed to print an out-of-date message for
received tests prior to discarding them. However, there were no such
messages in station KMZE's files.
According to Omni's program logs, no weekly tests were transmitted between
January 28 and February 17, 2008.
Licensees are not informed of the exact time at which monthly EAS tests
are sent. Similarly, licensees cannot predict when actual emergencies will
See 47 C.F.R. S: 11.51(k)(2).
Although Omni asserts that its station was staffed by personnel during the
times the station was in operation, its staff was not closely monitoring
for EAS monthly tests, as the station failed to transmit any monthly EAS
tests between January and June 2007.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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).
As provided by 47 U.S.C. S: 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
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4), 11.35(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1394
Federal Communications Commission DA 08-1394