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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File No. EB-07-SE-433
Cox Radio, Inc. )
NAL/Acct. No. 200832100058
FM Radio Station WKHK )
FRN No. 0001842533
Colonial Heights, Virginia )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 23, 2008 Released: July 25, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we find Cox
Radio, Inc. ("Cox Radio"), licensee of FM radio station WKHK ("WKHK"),
in Colonial Heights, Virginia, apparently liable for a forfeiture in
the amount of five thousand dollars ($5,000) for willful violation of
Section 11.32(a)(9)(v) of the Commission's Rules ("Rules"). The
apparent violation involves station WKHK's failure to protect the
switch used to initiate the generation of the Emergency Alert System
("EAS") two-tone Attention Signal ("tone"), resulting in the
activation and broadcast of the EAS tone.
2. On November 28, 2007, the Enforcement Bureau ("Bureau") received a
complaint alleging that station WKHK interrupted a regular broadcast
program with an EAS tone that was followed by the same commercial
program instead of an actual EAS message or an EAS test. The complaint
also alleged that similar EAS tone interruptions during WKHK's regular
broadcast programming were a reoccurring problem.
3. On January 29, 2008, the Bureau's Spectrum Enforcement Division
("Division") sent a letter of inquiry ("LOI") to Cox Radio directing
it to respond to the allegations against station WKHK. On February 27,
2008, Cox Radio filed its response to the LOI. In its response, Cox
Radio states that on November 28, 2007, an employee of station WKHK
was listening to an EAS weekly test on studio backup equipment and was
unaware that "a data connection links the backup machine to certain
live studio equipment, including EAS equipment." Cox Radio states that
at the end of the EAS sequence, the backup equipment "sent a trigger
over this data connection to the studio's EAS equipment, instructing
the equipment to broadcast the EAS tone." Cox Radio notes that upon
hearing the EAS tone broadcast, the employee immediately notified the
station's engineering department. Cox Radio further notes that its
chief engineer logged the event in station WKHK's EAS logs and
explained the reason for the EAS tone broadcast to the employee after
the tone had aired. Cox Radio asserts that the November 28th incident
was an "isolated" occurrence and "is not part of a larger pattern."
Additionally, Cox Radio asserts that it has retrained its studio
operators on the transmission and reception of EAS tests and alerts to
ensure that the events of November 28, 2007, are not repeated.
4. Section 503(b) of the Act, and Section 1.80(a) of the Rules, provides
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's
5. Under the Commission Rules, EAS Participants, such as station WKHK,
are required to have in place dedicated equipment to initiate,
receive, and retransmit EAS alerts and participate in EAS tests. The
Commission's Rules, under Part 11, Subpart B, set forth requirements
for EAS equipment, including the format for the EAS protocol (used for
sending and receiving EAS messages), and minimum requirements for EAS
encoders and decoders. Pursuant to Section 11.32 of the Rules, EAS
encoders must be capable of encoding the EAS protocol and providing
the EAS code transmission. In addition, under Section 11.32(a)(9)(v),
EAS encoders are subject to a requirement that "the switch used for
initiating the automatic generation of the simultaneous tones [i.e.,
the two-tone Attention Signal or EAS tone] shall be protected to
prevent accidental operation." EAS Participants are required to
conduct tests at regular intervals as specified in Section 11.61, and
such tests are required to conform with the procedures in the EAS
Operating Handbook. Section 11.61(a)(2) of the Rules and the EAS
Handbook specify EAS test procedures for AM and FM broadcast stations,
providing that required weekly tests consist of transmitting the EAS
header codes and the EOM code. No Attention Signal (EAS tone) is used
for EAS weekly tests.
6. Cox Radio admits that the station WKHK employee played the EAS weekly
test on backup studio equipment and caused the inadvertent broadcast
of the EAS tone. Cox Radio states that this error occurred because
WKHK's employee was unaware that use of the backup equipment would
trigger a data transmission to the EAS equipment. As a Commission
licensee, Cox Radio is charged with the responsibility of knowing and
complying with the terms of its authorization and the Act and the
Rules, including the requirements in place for preventing accidental
operation of the equipment used to generate the EAS tone. Accordingly,
we find that Cox Radio station WKHK apparently violated Section
11.32(a)(9)(v) of the Rules by not protecting the controls that
initiate the automatic generation of the EAS tone in a manner that
would prevent accidental operation.
7. In determining the appropriate forfeiture amount, Section 503(b)(2)(E)
of the Act directs us to consider factors, such as "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." Having considered the statutory factors, we propose a
forfeiture in the amount of $5,000 for Cox Radio station WKHK's
failure to protect against accidental generation of the EAS tone.
There is no base forfeiture amount established for violation of
Section 11.32(a)(9)(v). The base forfeiture amount for "EAS equipment
not installed or operational" is, however, $8,000. We find that
failure to protecting the controls that initiate the automatic
generation of the EAS tone in a manner that would prevent accidental
operation is not as serious as failure to have any EAS equipment
installed or operational. We therefore conclude that a lower proposed
forfeiture of $5,000 is appropriate.
8. As the nation's emergency warning system, the EAS system is critical
to public safety. The transmission of EAS tones that are not part of
an EAS test or actual emergency, whether intentional or accidental,
compromises the integrity of the EAS system. Accordingly, we conclude
that Cox Radio station WKHK is apparently liable for a $5,000
forfeiture for its willful violation of Section 11.32(a)(9)(v) of the
IV. 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 of the Rules, Cox Radio, Inc.,
licensee of FM Radio Station WKHK, IS hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of five thousand dollars
($5,000) for willful violation of Section 11.32(a)(9)(v) of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Cox Radio, Inc., licensee of FM Radio
Station WKHK, SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
11. 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 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. Cox Radio, Inc., licensee of FM Radio
Station WKHK, will also send electronic notification on the date said
payment is made to Jacqui.Johnson@fcc.gov and JoAnn.Lucanik@fcc.gov.
12. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to Robert J. Folliard, III, Esq., Counsel for
Cox Radio, Inc., FM Radio Station WKHK, Dow Lohnes PLLC, 1200 New
Hampshire Avenue, N.W., Suite 800, Washington, D.C., 20036-6802.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
File No. BRH-20030602BBP. The Commission granted Cox Radio a license
renewal for station WKHK on November 13, 2000. The license expires on
October 1, 2011.
47 C.F.R. S: 11.32(a)(9)(v).
See 47 C.F.R. Part 11, Subpart D.
47 C.F.R. S: 11.61.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Bob Willoughby,
Executive Manager, Radio Station WKHK - FM, Cox Radio, Inc. (January 29,
See Letter from Counsel for Cox Radio, Inc., Robert J. Folliard, III,
Esq., Dow Lohnes PLLC to Marlene H. Dortch, Secretary, Federal
Communications Commission (February 27, 2008).
Id., at 2, 4.
Id., at 1.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(a).
The term "willful," as used in Section 503(b) of the Act, means the
conscious and deliberate commission or omission of such act, irrespective
of any intent to violate the Commission's Rules. 47 U.S.C. S: 312(f)(1). A
violation is "repeated" within the meaning of Section 503(b) of the Act if
it occurs more than once or continues for more than one day. 47 U.S.C. S:
312(f)(2). See Southern California Broadcasting Co., Memorandum Opinion
and Order, 6 FCC Rcd 4387, 4388 (1991).
The Commission Rules provide that every AM and FM broadcast station is
part of the nationwide EAS network and is categorized as a participating
national EAS source ("EAS Participant") unless the station affirmatively
requests authority to not participate. 47 C.F.R. S:S: 11.11 and 11.41.
See 47 C.F.R. S: 11.1 et. seq.
The EAS protocol consists of four parts: Preamble and EAS Header Codes;
two-tone audio Attention Signal ("EAS tone"); message; and Preamble and
EAS End of Message ("EOM") Codes. See 47 C.F.R. S: 11.31(a).
47 C.F.R. S:S: 11.32, 11.33. The functions of the EAS encoder and decoder
may be combined into a single unit referred to as an Encoder/Decoder
provided that the unit complies with all specifications in Part 11 of the
Commission's Rules. See 47.C.F.R. S: 11.34(c).
47 C.F.R. S: 11.32(a).
47 C.F.R. S: 11.32(a)(9)(v).
47 C.F.R. S: 11.61(a). The Emergency Alert System 2007 AM and FM Handbook
("EAS Operating Handbook") can be found at
See 47 C.F.R. S: 11.61(a)(1), EAS Operating Handbook at 29.
See 47 C.F.R. S: 11.51(b); also 47 C.F.R. S: 11.11(a), note 6 to Analog
and Digital Broadcast Stations ("Effective January 1998, the two-tone
signal [EAS tone] may only be used to provide audio alerts to audiences
before EAS emergency messages and the required monthly tests.")
See Discussion Radio Incorporated, Memorandum Opinion and Order and Notice
of Apparent Liability for Forfeiture, 19 FCC Rcd 7433, 7437 (2004); see
also Gilmore Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 6284, 6286-87 (2006); Criswell College, Notice of
Apparent Liability for Forfeiture, 21 FCC Rcd 5106, 5109 (2006); National
Weather Networks, Inc., Notice of Apparent Liability for Forfeiture, 21
FCC Rcd 3922, 3926 (2006); Journal Broadcast Corporation, Notice of
Apparent Liability for Forfeiture, 20 FCC Rcd 18211, 18214 (2005); Shared
Data Networks, LLC, 20 FCC Rcd 18184, 18187 (2005).
See also EAS Operating Handbook.
47 U.S.C. S: 503(b)(2)(E); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines ("Forfeiture Policy Statement"), Report and Order,
12 FCC Rcd 17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80(b).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
47 C.F.R. S: 1.80.
Federal Communications Commission DA 08-1717
Federal Communications Commission DA 08-1717