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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No.: EB-11-SD-0125
Rosendo Casarez, Jr. NAL/Acct. No.: 201232940002
Licensee of Station KCRX(AM) FRN: 0006903041
Roswell, NM Facility ID No.: 57700
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: January 30, 2012 Released: January 31, 2012
By the District Director, San Diego Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Rosendo Casarez, Jr. (Casarez), licensee of Station
KCRX(AM), in Roswell, New Mexico, apparently willfully and repeatedly
violated Section 11.35 of the Commission's rules (Rules) by failing to
ensure the operational readiness of the Station KCRX(AM) Emergency
Alert System (EAS) equipment. We conclude that Casarez is apparently
liable for a forfeiture in the amount of eight thousand dollars
($8,000). In addition, we direct Casarez to submit, no later than
thirty (30) calendar days from the date of this NAL, a statement
signed under penalty of perjury stating that the Station KCRX(AM) EAS
equipment is operating consistent with Section 11.35 of the Rules.
2. On June 21, 2011, an agent from the Enforcement Bureau's San Diego
Office (San Diego Office) conducted an inspection at Station
KCRX(AM)'s main studio located in Roswell, New Mexico. The agent
observed that although Station KCRX(AM) had EAS equipment, the
equipment was not installed and not operational. Specifically, the
equipment was not capable of receiving the required tests and Casarez
was unable to produce any documentation, logs, or records for the
agent showing that required EAS weekly or monthly tests had been sent
or received. Casarez also informed the agent that the station's EAS
equipment had not been operational since approximately eight months
prior, when the EAS equipment was damaged due to water leaking into
the station's main studio after a heavy rain storm.
3. Section 503(b) of the Communications Act of 1934, as amended (Act),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Section 312 and 503(b) of the Act and the Commission has so
interpreted the term in the Section 503(b) context. The Commission may
also assess a forfeiture for violations that are merely repeated, and
not willful. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
A. Failure to Maintain Operational Readiness of Emergency Alert System
4. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source unless the station
affirmatively requests authority to refrain from participation, and
that request is approved by the Commission. The EAS enables the
President and state and local governments to provide immediate and
emergency communications and information to the general public. State
and local area plans identify local primary sources responsible for
coordinating carriage of common emergency messages from sources such
as the National Weather Service or local emergency management
officials. Required monthly and weekly tests originate from EAS Local
or State Primary sources and must be retransmitted by the
5. As the nation's emergency warning system, the Emergency Alert System
is critical to public safety, and we recognize the vital role that
broadcasters play in ensuring its success. The Commission takes
seriously any violations of the Rules implementing the EAS and expects
full compliance from its licensees. Section 11.35 of the Rules
requires all broadcast stations to ensure that EAS encoders, EAS
decoders, and attention signal generating and receiving equipment are
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.
6. On June 21, 2011, an agent from the San Diego Office inspected Station
KCRX(AM)'s EAS equipment and found that it was not operational. The
EAS equipment was unable to receive the required tests and Casarez,
the Station KCRX(AM) licensee, was unable to produce documentation,
logs, or records concerning EAS tests successfully or unsuccessfully
received or sent. Casarez acknowledged to the San Diego agent that the
Station KCRX(AM) EAS equipment had not been operational since heavy
rain storms leaked through the roof of the station's main studio
approximately eight months prior to the inspection. Based on the
evidence before us, we find that Casarez apparently willfully and
repeatedly violated Section 11.35 of the Rules by failing to ensure
the operational readiness of the Station KCRX(AM) EAS equipment.
A. Proposed Forfeiture Amount and Reporting Requirement
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for EAS equipment not
installed or operational is $8,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Casarez is apparently liable for a forfeiture of $8,000 for his
violation of Section 11.35 of the Rules.
8. We further order Casarez to submit a written statement pursuant to
Section 1.16 of the Rules signed under penalty of perjury by Casarez
stating that Station KCRX(AM) is now in compliance with Section 11.35
of the Rules. This statement must be provided to the San Diego Office
at the address listed in paragraph 11 within thirty (30) calendar days
of the release of this NAL.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Rosendo Casarez,
Jr., is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of eight thousand dollars ($8,000) for violation of Section
11.35 of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Rosendo Casarez, Jr., SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. IT IS FURTHER ORDERED that Rosendo Casarez, Jr., SHALL SUBMIT a
written statement, as described in paragraph 8, within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, San
Diego Office, 4542 Ruffner Street, Rm. 370, San Diego, CA, 92111.
Casarez shall also email the written statement to
12. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN
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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Casarez will also send
electronic notification on the date said payment is made to
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, San Diego Office, 4542 Ruffner Street, Rm. 370, San Diego, CA,
92111, and include the NAL/Acct. No. referenced in the caption.
Casarez shall also email the written response to WR-Response@fcc.gov.
14. 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 ("GAAP"); 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 documentation submitted.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to Rosendo Casarez, Jr., P.O. Box
2052, Roswell, NM 88201.
FEDERAL COMMUNICATIONS COMMISSION
James T. Lyon
San Diego Office
47 C.F.R. S: 11.35.
See 47 C.F.R. S: 11.61(a)(1) ("Required Monthly Tests of the EAS header
codes, Attention Signal, Test Script and [End of Message] code . . . .
must be transmitted with in 60 minutes of receipt by EAS Participants in
an EAS Local Area or State."); 47 C.F.R. S: 11.61(a)(2) ("Required Weekly
Tests: . . . Analog and digital AM, FM and TV broadcast stations must
conduct tests of the EAS header and [End of Message] codes at least once a
week at random days and times").
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of Section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454.
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at 1362.
47 C.F.R. S:S: 11.11, 11.19, 11.41.
47 C.F.R. S:S: 11.1, 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local, and relay EAS
sources. 47 C.F.R. S: 11.21.
47 C.F.R. S: 11.35.
47 C.F.R. S: 11.35(a) - (b). An EAS Participant may operate without the
defective equipment pending its repair or replacement for 60 days without
further FCC authority. See 47 C.F.R. S: 11.35(b). If the repair or
replacement of defective equipment is not completed within 60 days, an EAS
Participant shall submit an informal request to the District Director of
the local FCC field office for additional time to repair the defective
equipment. See 47 C.F.R. S: 11.35(c). No such request was submitted by
Casarez to the San Diego Office.
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 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-109
Federal Communications Commission DA 12-109