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Federal Communications Commission
Washington, D.C. 20554
In the Matter of JCE Licenses, LLC Licensee of Station KBXD-AM, Dallas,
Texas ) ) ) ) ) ) ) File No.: EB-FIELDSCR-13-00006553 NAL/Acct. No.:
201432500004 FRN: 0010210433 Facility ID No.: 57375
Adopted: December 8, 2014 Released: December 8, 2014
By the Regional Director, South Central Region, Enforcement Bureau:
1. We impose a penalty of $7,200 against JCE Licenses, LLC (JCE), the
licensee of AM Station KBXD in Dallas, Texas, for failing to maintain
operational Emergency Alert System (EAS) equipment and logs. JCE
admits that its EAS equipment was not operational and its station was
without EAS logs, but nevertheless requests reductions of the proposed
forfeiture because it has not previously received a written violation
notice and has filed for bankruptcy. We have reviewed JCE's
documentation and conclude a reduction of the proposed forfeiture to
$7,200 is warranted based on its history of compliance with the
Commission's rules (Rules) but reject its inability to pay claim based
on our precedent.
2. Specifically, in this Forfeiture Order (Order), we issue a monetary
forfeiture in the amount of seven thousand two hundred dollars
($7,200) to JCE for willfully and repeatedly violating Section
11.35(a) of the Rules.^
3. On February 20, 2014, the Enforcement Bureau's Dallas Office (Dallas
Office) issued a Notice of Apparent Liability for Forfeiture (NAL) ^
to JCE for EAS violations.^ As reflected in the NAL, on January 17,
2013, an agent from the Dallas Office observed that Station KBXD-AM
had no installed EAS equipment or EAS logs, when the station was in
operation. The station's general manager admitted that the station has
been without operational EAS equipment since November 2012.
4. In response to the NAL, JCE acknowledges that Station KBXD-AM did not
have installed EAS equipment, during the inspection, but states that
it was operating pursuant to a construction permit at the time, and
had not yet received its new Sage EAS unit, which was received shortly
after the inspection.^ The new unit, which had defective firmware and
was returned for repairs, was installed and made operational on March
7, 2013.^ JCE also notes that it did not begin normal operations of
Station KBXD-AM until March 27, 2013. Accordingly, because it was
operating pursuant to a construction permit, it asserts that Section
11.35(a) of the Rules was not applicable on January 17, 2013.
Alternatively, it requests reduction of the proposed forfeiture to
$4,000, because its violation was less egregious than other EAS cases,
given its history of compliance with the rules and the fact that its
EAS violations occurred prior to its resumption of full operations.^
5. Finally, JCE notes that its parent company is in Chapter 11 Bankruptcy
proceedings and "payment of this forfeiture (assuming it was approved
by the Bankruptcy Court) would impose a dire economic burden on JCE
that it may not be able to recover from."^
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
Forfeiture Policy Statement.^ In examining Cochise's NAL Response,
Section 503(b)(2)(E) 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.^ As discussed below, we have
fully considered JCE's response to the NAL in light of these statutory
factors and find that a $7,200 forfeiture is appropriate. .
A. Failure to Maintain Operational EAS Equipment and Logs
7. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source.^ The EAS enables
the President and state and local governments to provide immediate
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 the 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. As the nation's emergency warning system, the EAS 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.
8. We affirm the NAL's finding that JCE willfully and repeatedly violated
Section 11.35(a) of the Rules.^ Section 11.35(a) of the Rules states
that EAS Participants are responsible for ensuring that EAS Encoders,
EAS Decoders, and Attention Signal generating and receiving equipment
used as part of the EAS are installed so that the monitoring and
transmitting functions are available during the times the stations and
systems are in operation.^ Section 11.35(a) also requires EAS
participants to record in station logs the reasons why any EAS tests
were not received.^ It is undisputed that JCE did not have installed
EAS equipment or logs during the inspection on January 17, 2013, and
other days, when the station was broadcasting, albeit pursuant to a
construction permit. Section 11.35(a) applies when a station is in
"operation," not full-time operation, so we disagree with JCE that the
EAS rules were inapplicable. Therefore, based on the evidence before
us, we conclude that JCE willfully^ and repeatedly^ violated Section
11.35(a) of the Rules by failing to maintain EAS equipment and logs.
B. Forfeiture Amount
9. JCE requests cancellation of the proposed forfeiture based on its
inability to pay, as evidenced by its parent company's bankruptcy
filing. A broadcaster's "bankruptcy filing, alone, neither precludes
the imposition of a forfeiture nor justifies an adjustment or
cancellation of the forfeiture amount for a violation of the Rules."^
With regard to an individual's or entity's inability to pay claim, the
Commission has determined that, in general, gross income or revenues
are the best indicator of an ability to pay a forfeiture.^
Accordingly, JCE was asked to provide its three most recent tax
returns and submitted tax returns for JCE's parent company. Based on
the financial documents provided by JCE, we do not find sufficient
basis to reduce the forfeiture, despite the bankruptcy filing.^
10. In response to the NAL, JCE also requested reduction of the proposed
forfeiture based on its history of compliance with the Rules. We have
reviewed our records and concur that JCE has not been previously cited
with a violation of the Rules. Accordingly, we reduce the proposed
forfeiture to seven thousand two hundred dollars ($7,200) based on
JCE's history of compliance.^ Accordingly, after consideration of the
entire record (including JCE's response to the NAL), the Forfeiture
Policy Statement, and the factors set forth in Section 503(b)(2)(E) of
the Act,^ we find that, although cancellation of the monetary
forfeiture is not warranted, a reduction of the forfeiture amount from
$9,000 to $7,200 is appropriate in this case.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80(f)(4) of the
Rules, JCE Licenses, LLC IS LIABLE FOR A MONETARY FORFEITURE in the
amount of seven thousand two hundred dollars ($7,200) for violations
of Section 11.35(a) of the Rules.^ For collection, the Commission will
file a proof of claim at the appropriate time in JCE Licenses, LLC's
12. 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.^ JCE Licenses, LLC shall send electronic
notification of payment to SCR-Response@fcc.gov on the date said
payment is made. 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
* 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.
13. Any request for making full payment over time 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,
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to JCE
Licenses, LLC at 2100 Park Central Blvd. N, Suite 100, Pompano Beach,
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
^ 47 U.S.C. S 333; 47 C.F.R. S 95.413(a)(3).
^ JCE Licenses, LLC, Notice of Apparent Liability for Forfeiture, 29 FCC
Rcd 1664 (Enf. Bur. 2014) (NAL). A comprehensive recitation of the facts
and history of this case can be found in the NAL and is incorporated
herein by reference.
^ Letter from James W. Hilliard, Vice President, JCE Licenses, LLC, to
Dallas Office, South Central Region, Enforcement Bureau at 2-3 (Apr. 9,
2014) (NAL Response) (on file in EB-FIELDSCR-13-00006553).
^ Id. at 4.
^ Id. at 4-5.
^ 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 73.1125(a).
^ 47 C.F.R S 11.35(a). See also 47 C.F.R. S 73.1820(a)(1)(iiii) (requiring
licensees to create an entry for each test and activation of the EAS in
the station log or in a special EAS log). If Station KBXD-AM had
operational EAS equipment prior to November 2012, it failed to log any
successful EAS tests.
^ 47 C.F.R. S 11.35(a). See also 47 C.F.R. S 11.35(b) (requiring licensees
to record when defective EAS equipment is removed from service).
^ 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. ^ 47 U.S.C. S 312(f)(1). The legislative history to
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, and the Commission has
so interpreted the term in the Section 503(b) context.
^ The term "repeated" means the commission or omission of such act more
than once or for more than one day. 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., Notice of Apparent Liability for Monetary
Forfeiture, 16 FCC Rcd 1359, 1362, para. 9 (2001).
^ See North American Broadcasting Co., Inc., Memorandum Opinion and Order,
19 FCC Rcd 2769, 2771 para. 6 (Enf. Bur. 2004); Adelphi Communications,
Forfeiture Order, 18 FCC Rcd 7652, 7654 para. 8 (Enf. Bur. 2003).
^ See Local Long Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000)
(forfeiture not deemed excessive where it represented approximately 7.9
percent of the violator's gross revenues); Hoosier Broadcasting
Corporation, Forfeiture Order, 15 FCC Rcd 8640 (2002) (forfeiture not
deemed excessive where it represented approximately 7.6 percent of the
violator's gross revenues).
^ This forfeiture amount falls within the percentage range that the
Commission has previously found acceptable. See supra note 20. If JCE
finds it financially infeasible to make full payment of this amount within
30 days, it can request an installment plan, as described in paragraph 13,
infra, of this Forfeiture Order.
^ See Centro Colegial Cristiano, Inc., Forfeiture Order, 28 FCC Rcd 14734
(Enf. Bur. 2013) (proposed forfeiture reduced based on history of
compliance with the Rules).
^ 47 U.S.C. S 503(b)(2)(E). See 47 C.F.R. S 1.80(b)(5).
^ 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 14-1780
Federal Communications Commission DA 14-1780