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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File No. EB-09-SE-137
Calvary Chapel of Costa Mesa, Inc. )
NAL/Acct. No. 200932100077
FM Radio Station KWVE )
FRN No. 0006377303
San Clemente, California )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 15, 2009 Released: September 17, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we find Calvary
Chapel of Costa Mesa, Inc., licensee of FM radio station KWVE (also
referred to as "KWVE" or "Licensee"), in San Clemente, California,
apparently liable for a forfeiture in the amount of five thousand
dollars ($5,000) for willful violation of Section 11.61(a) of the
Commission's Rules ("Rules"). The apparent violation involves station
KWVE's transmission of an unauthorized Required Monthly Test ("RMT")
of the Emergency Alert System ("EAS") in a manner that was not in
accordance with the procedures specified in the EAS Operating
Handbook, in violation of Section 11.61(a) of the Rules.
2. KWVE is a Local Primary ("LP") station designated to initiate the
transmission of EAS tests and EAS alerts in several California
counties. The Commission's Enforcement Bureau ("Bureau") received a
complaint alleging that on October 19, 2008, station KWVE transmitted
commercial programming and an advertisement as part of an EAS test
message, thus causing the programming and advertisement to be
retransmitted by other broadcast stations and cable systems in the
3. On August 27, 2009, the Bureau's Spectrum Enforcement Division
("Division") issued a letter of inquiry ("LOI") to the Licensee
directing it to respond to the allegations against station KWVE. On
September 9, 2009, the Licensee filed its response to the LOI. In its
LOI response, the Licensee admits that on October 19, 2008, an
employee of station KWVE who intended to run a scheduled weekly EAS
test instead ran an unscheduled RMT, and then failed to transmit the
End of Message ("EOM") code and the message advising that the test had
been concluded. The Licensee has also submitted station KWVE's EAS
logs for October 19, 2008, in which an entry notes that "[t]he RMT was
not supposed to be sent ... [t]he board operator mis-interpreted the
cart label." The Licensee asserts that the incident of October 19,
2008 was caused "solely by operator error" and "did not constitute a
willful or repeated violation" of the Rules. Additionally, the
Licensee asserts that it has provided additional EAS training for each
of the station operators to ensure that the events of October 19,
2008, are not repeated.
4. Section 503(b) of the Communications Act of 1934, as amended ("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 rules.
5. Section 11.61 of the Rules states that EAS participants shall conduct
tests at regular intervals and that "all tests will conform with the
procedures in the EAS Operating Handbook." Section 11.61(a)(1) and the
EAS Handbook specify EAS test procedures for AM and FM broadcast
stations, providing that RMTs consist of transmitting the EAS head
codes, the Attention Signal, Test Script and EOM code. In particular,
the EAS Operating Handbook indicates that during required monthly
tests the EOM code must be transmitted prior to the resumption of
normal programming. Based upon our review of the record before us, it
does not appear that the Licensee intentionally used the EAS signal to
draw attention to the commercial programming and advertisement that it
broadcast. Nevertheless, the Licensee acknowledges that on October 19,
2008, KWVE transmitted an unscheduled RMT and failed to transmit the
EOM code prior to the resumption of normal programming during its
origination of the RMT. Accordingly, we find that the Licensee
violated Section 11.61(a) of the Rules by transmitting an unauthorized
RMT and by failing to conform to the RMT procedures set forth in the
EAS Operating Handbook.
6. In its LOI response, the Licensee admits that on October 19, 2008, a
station KWVE employee transmitted an unscheduled RMT and failed to
transmit the EOM code, which caused the inadvertent inclusion of
KWVE's regular broadcast as part of the EAS transmission, but claims
that this error occurred because of the one-time error of that KWVE
employee. As a Commission licensee, KWVE is charged with the
responsibility of knowing and complying with the terms of its
authorization and the Act and the Rules, including the required
procedures for conducting EAS tests. Moreover, the Commission has long
held that "licensees are responsible for the acts and omission of
their employees and independent contractors," and has consistently
"refused to excuse licensees from forfeiture penalties where the
actions of employees or independent contractors have resulted in
violations." Accordingly, we find that the Licensee's violation of
Section 11.61(a) was willful.
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 station KWVE's failure to
conform its monthly test to the procedures set forth in the EAS
Operating Handbook. There is no base forfeiture amount established for
violation of Section 11.61 of the Rules. The base forfeiture amount
for "EAS equipment not installed or operational" is, however, $8,000.
We find that failure to conform a RMT to the procedures set forth in
the EAS Operating Handbook 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. KWVE is a designated LP station, and broadcast
stations and cable systems in the San Clemente area are dependent upon
KWVE to transmit accurate emergency information over the EAS system.
Thus, not only did KWVE's failure to adhere to the EAS test procedures
result in KWVE transmitting commercial programming and advertisement
in conjunction with an EAS test, it also caused other broadcast
stations and cable systems to erroneously retransmit KWVE's commercial
programming and advertisement in conjunction with an EAS test. The
transmission of EAS tones that are followed by a broadcast that is not
part of an EAS test or actual emergency information, whether
intentional or accidental, compromises the integrity of the EAS
system. Accordingly, we conclude that station KWVE is apparently
liable for a $5,000 forfeiture for its willful violation of Section
11.61(a) of the Rules.
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, Calvary Chapel of
Costa Mesa, Inc., licensee of FM Radio Station KWVE, IS hereby
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
five thousand dollars ($5,000) for willful violation of Section
11.61(a) 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, Calvary Chapel of Costa Mesa, Inc., licensee
of FM Radio Station KWVE, 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. Calvary Chapel of Costa Mesa, Inc.,
licensee of FM Radio Station KWVE, will also send electronic
notification on the date said payment is made to
Deborah.Broderson@fcc.gov and Kathy.Berthot@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 Charles W. Smith, President, Calvary
Chapel of Costa Mesa, Inc., 3000 W. Macarthur Blvd, Suite 500, Santa
Ana, CA 92704, and to Lauren A. Colby, Esq., Counsel for Calvary
Chapel of Costa Mesa, Inc., FM Radio Station, KWVE, 10 East 4th
Street, Frederick, MD 21701.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
File No. BALH-19810223HT. The Commission most recently granted the
Licensee a license renewal for station KWVE on November 29, 2005. See,
File No. BRH-20050801DFO. The license expires on December 1, 2013.
47 C.F.R. S: 11.61(a).
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: 11.18(b). State and local EAS plans identify LP sources
responsible for coordinating carriage of common emergency messages from
sources such as the National Weather Service or local emergency management
officials. In addition, required monthly and weekly EAS tests originate
from LP sources and must be retransmitted by the participating broadcast
The programming that was incorporated in the RMT broadcast included
religious music, an advertisement for a religious conference, and
information regarding KWVE's Spanish HD radio channel.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Jerry Walker, FCC
Contact, Calvary Chapel of Costa Mesa, Inc. (August 27, 2009).
See Letter from Lauren A. Colby, Esq., Counsel for Calvary Chapel of Costa
Mesa, Inc., to Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (September 9, 2009)
Id. at 2; see also, id. at Declaration of Ken Kellog.
Id. at Daily Station Operating Log, Entry for October 19, 2008.
Id. at 2.
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).
See 47 C.F.R. S: 11.61(a).
EAS Operating Handbook at 34.
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 (Enf. Bur., Spectrum Enf. Div. 2006),
rescinded on other grounds, 21 FCC Rcd 9812 (Enf. Bur., Spectrum Enf. Div.
2006); Criswell College, Notice of Apparent Liability for Forfeiture, 21
FCC Rcd 5106, 5109 (Enf. Bur., Spectrum Enf. Div. 2006); National Weather
Networks, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
3922, 3926 (Enf. Bur., Spectrum Enf. Div. 2006); Journal Broadcast
Corporation, Notice of Apparent Liability for Forfeiture, 20 FCC Rcd
18211, 18214 (Enf. Bur., Spectrum Enf. Div. 2005); Shared Data Networks,
LLC, 20 FCC Rcd 18184, 18187 (Enf. Bur., Spectrum Enf. Div. 2005).
See also EAS Operating Handbook.
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863-64 (2002) ("Eure"); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34, 35 (1991); Wagenvoord Broadcasting Co., Memorandum Opinion
and Order, 35 FCC 2d 361 (1972); see also, Rama Communications, Inc.,
Memorandum Opinion and Order, 23 FCC Rcd 18209, 18211 (Enf. Bur. 2008)
("[W]here lapses in compliance occur, neither the negligent acts nor
omissions of station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify the licensee's rule
violation.") (citations omitted); Corr Wireless Communications LLC, Notice
of Apparent Liability for Forfeiture, 24 FCC Rcd 5419, 5421 (Enf. Bur.,
Spectrum Enf. Div. 2009) (declining to reduce a proposed forfeiture when
licensee claimed unauthorized operation of two stations was caused
inadvertently by a technician's error).
See Eure, 17 FCC Rcd at 21863-64; Triad Broadcasting Company, Inc.,
Memorandum Opinion and Order, 96 FCC 2d 1235, 1244 (1984).
See supra n. 14.
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, 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 09-2053
Federal Communications Commission DA 09-2053