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Federal Communications Commission
Washington, D.C. 20554
In the Matter of North County Broadcasting Corporation Licensee of Station
KFSD(AM) Escondido, California ) ) ) ) ) ) ) ) File No.: EB-10-SD-0028
NAL/Acct. No.: 201132940002 FRN: 0003770757 Facility ID No.: 49205
Adopted: February 14, 2013 Released: February 15, 2013
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of four thousand, eight hundred dollars ($4,800) to North County
Broadcasting Corporation (NCBC), licensee of Station KFSD(AM) in
Escondido, California, for willfully and repeatedly violating Section
11.35 of the Commission's rules (Rules).^ The noted violations
involve NCBC's failure to ensure the operational readiness of Station
KFSD(AM)'s Emergency Alert System (EAS) equipment.
2. On March 18, 2010, agents from the Enforcement Bureau's San Diego
Office (San Diego Office) conducted an inspection of Station
KFSD(AM)'s main studio, located at 1835 Aston Avenue, Carlsbad,
California, and determined that Station KFSD(AM)'s EAS equipment was
not operating properly. Specifically, the EAS equipment was capable of
transmitting a required weekly test (RWT) for NCBC's co-located
Station KCEO(AM), but it was not capable of transmitting a RWT for
Station KFSD(AM).^ During the inspection, an NCBC staff person
acknowledged that Station KFSD(AM)'s EAS equipment connection had been
experiencing problems sending RWTs and the required monthly tests
(RMTs) since early December 2009. A review of the EAS logs for Station
KFSD(AM) corroborated this information.
3. On March 31, 2010, the San Diego Office sent a letter of inquiry (LOI)
to NCBC concerning the operational status of Station KFSD(AM)'s EAS
equipment.^ In its response, NCBC acknowledged that Station KFSD(AM)'s
EAS equipment, specifically the audio link, did not function properly
from December 2009 until April 8, 2010.^ According to NCBC, the
operator on duty contacted Station KFSD(AM)'s chief engineer in
December about the failure of the audio link. The chief engineer
initially believed that the station's EAS equipment problems were
intermittent, but when notified again in late February of additional
EAS failures, he performed a complete inspection of the equipment and
exchanged controlling links between pieces of the equipment. The next
week, in early March, the chief engineer inspected the wiring between
the pieces of equipment and the audio paths, and tested recently
purchased pieces of equipment in an attempt to resolve the continuing
EAS failures. NCBC also stated that after the San Diego Office's
inspection on March 18, 2010, the engineer submitted the equipment for
repair and learned that a power supply filter capacitor had "finally
dried up" and had gone from causing intermittent failure to total
failure of the audio link. NCBC also stated that the equipment was
repaired as of April 8, 2010.
4. On January 11, 2011, the San Diego Office issued a Notice of Apparent
Liability for Forfeiture (NAL) against NCBC for failure to ensure the
operational readiness of Station KFSD(AM)'s EAS equipment.^ Although
the base forfeiture for EAS equipment that is not properly installed
or operational is $8,000, the San Diego Office proposed a $6,000
forfeiture in light of NCBC's repeated good-faith attempts to identify
and repair the problems.^ In particular, the San Diego Office took
into account the efforts of the Station KFSD(AM)'s engineer, prior to
the San Diego Office's inspection, to repeatedly trouble-shoot and
test the EAS unit, which he believed was experiencing intermittent
failures, because co-located Station KCEO(AM) successfully used the
same unit without any failures.
5. NCBC responded to the NAL on February 4, 2011.^ In its Response, NCBC
argues that the NAL is unenforceable because the Commission has "never
complied with its obligation under the Small Business Regulatory
Enforcement and Fairness Act of 1996 . . . ."^ NCBC also argues that
the proposed forfeiture should be reduced because of NCBC's history of
compliance with the Rules, and because NCBC took reasonable steps to
resolve the EAS equipment failure when the problems with the EAS
equipment were observed.^
6. 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.^ In examining NCBC'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.^ We considered NCBC's response to the NAL in light of these
statutory factors and find that reduction of the forfeiture is
warranted for the reasons discussed below.
7. Every broadcast station is part of the nationwide EAS network.^ 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 participating station.
8. 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.^ An EAS
Participant may operate without the defective equipment pending its
repair or replacement for 60 days without further FCC authority.^ 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. ^ ^
9. NCBC does not dispute the facts described in the NAL. According to the
investigation, Station KFSD(AM)'s EAS equipment began to malfunction
in December 2009. At that point, although NCBC did not have an
obligation to report the problem to the Commission, it still had to
fix the equipment. Station KFSD(AM)'s chief engineer concluded that
the problem was intermittent because co-located Station KCEO(AM) was
using the same equipment without incident. The problems continued,
however, through late February and into early March 2010, exceeding
the 60 day period allotted for repair or replacement of EAS equipment
without requesting additional time from the local FCC field office.
The Station KFSD(AM) chief engineer performed a complete inspection
and attempted to identify the source of the problem but, despite these
efforts, the audio link failures persisted. When the San Diego Office
conducted its inspection on March 18, 2010, the FCC agents confirmed
that Station KFSD(AM)'s EAS equipment was malfunctioning. At that
point, Station KFSD(AM)'s chief engineer submitted the equipment for
repair and learned that a power supply filter capacitor had gone from
causing intermittent failure to total failure of the audio link.
Station KFSD(AM) resumed operating with fully functioning EAS
equipment on April 8, 2010.^
10. NCBC contends that the NAL cannot be enforced because NCBC is a "small
entity" and the Commission has never complied with its obligation
under the Small Business Regulatory Enforcement and Fairness Act of
1996 (SBREFA)^ "to adopt a specific policy or program concerning the
reduction or waiver of forfeiture for small entities."^ We find no
merit in NCBC's contention. The Commission has previously held that
its policies, as detailed in the Forfeiture Policy Statement, comply
with the SBREFA.^ In particular, the Commission found that, consistent
with the SBREFA, its precedent requires consideration of a small
entity's ability to pay along with any good faith efforts by the
entity to comply with the law.^
11. In the instant case, we have no evidence of NCBC's inability to pay.^
Additionally, the San Diego Office already reduced the proposed
forfeiture amount after taking into account that "NCBC initiated good
faith efforts, albeit unsuccessfully, to troubleshoot the EAS
equipment failure prior to the Bureau's inspection."^
12. NCBC also requests a reduction of the forfeiture because of its
history of compliance with the Rules.^ We have examined the record and
agree. Accordingly, we reduce the total forfeiture from $6,000 to
$4,800 based on NCBC's history of compliance with the Rules.
13. We have examined NCBC'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 NCBC willfully
and repeatedly violated Section 11.35 of the Rules. Considering the
entire record and the factors listed above, we find that a forfeiture
in the amount of $4,800 is warranted.
IV. ORDERING CLAUSES
14. 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(f)(4) of the Commission's Rules, North County
Broadcasting Corporation IS LIABLE FOR A MONETARY FORFEITURE in the
amount of four thousand, eight hundred dollars ($4,800) for willfully
and repeatedly violating Section 11.35 of the Commission's Rules.^
15. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ North County Broadcasting Corporation
shall send electronic notification of payment to WR-Response@fcc.gov
on the date said payment is made.
16. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and
FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
17. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer--Financial Operations, Federal
Communications Commission, 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 by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
18. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail Return Receipt
Requested to North County Broadcasting Corporation at 1563 South State
College Boulevard, Anaheim, CA 92806, and to David Tillotson, its
counsel of record, at 4606 Charleston Terrace, NW, Washington, D.C.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
^ 47 C.F.R. S 11.35.
^ Station KCEO(AM) and Station KFSD(AM) shared a common EAS unit and
common monitoring receivers. The internal audio switching in the EAS unit
was used for Station KCEO(AM), while a separate remote audio switch was
used for Station KFSD(AM).
^ See Letter of Inquiry from William R. Zears, Jr., District Director, San
Diego Office, Western Region, Enforcement Bureau, to North County
Broadcasting Corporation (March 31, 2010) (on file in EB-11-SD-0028).
^ See Letter from Susan E. Burke, Secretary, North County Broadcast
Corporation, to William R. Zears, Jr., District Director, San Diego
Office, Western Region, Enforcement Bureau, (filed April 19, 2010, in
EB-11-SD-0028) (LOI Response). LOI Response at 2.
^ North County Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 201 (Enf. Bur. 2011) (NAL).
^ See Note to Section 1.80(b)(4) of the Rules, 47 C.F.R. S 1.80(b)(4)
(listing "Good faith or voluntary disclosure" as a basis for adjusting
forfeitures downward); Radio One Licenses, Inc., Memorandum Opinion and
Order, 18 FCC Rcd 15964, 15965 (2003), recons. denied, Memorandum Opinion
and Order, 18 FCC Rcd 25481 (2003) (reducing $5,200 forfeiture assessed
for Emergency Alert System rule violations to $4,000 due to the licensee's
corrective measures prior to an investigation).
^ See Response of North County Broadcasting (filed Feb. 4, 2011, in
^ Response at 1.
^ Response at 2.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 C.F.R. SS 11.11, 11.41.
^ 47 C.F.R. SS 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).
^ See 47 C.F.R. S 11.35(b).
^ See 47 C.F.R. S 11.35(c). No such request was submitted by NCBC to the
San Diego Office.
^ LOI Response at 2.
^ P.L. 104-121, March 29, 1996, as amended by P.L. May 25, 2007.
^ Response at 2-3.
^ Forfeiture Policy Statement, 12 FCC Rcd at 17109.
^ NCBC states in the Response that "NCBC's tax returns which were sent
directly to the Field Office on May 17, 2010, along with a letter asking
that the forfeiture proposed in the NAL be canceled based on NCBC's
inability to pay [sic] establish that NCBC is a small entity." Response at
2 n.1. We are unable to consider this claim because our records indicate
that no such letter or tax returns were ever received by the San Diego
Office, no such information was contained in the LOI Response, and the NAL
was issued on January 11, 2011.
^ NAL, 26 FCC Rcd at 203. For this reason, we also reject NCBC's
contention that the proposed forfeiture amount should be further reduced
because the Station KFSD(AM) Chief Engineer made efforts to repair the
equipment and that "the problem was a technical one that the Station's
Chief Engineer was unable to identify and therefore, unable to correct."
Response at 3-4.
^ Response at 3.
^ 47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 13-212
Federal Communications Commission DA 13-212