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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Arnold Broadcasting Company, ) File Number: EB-02-DV-383
Inc. )
) NAL/Acct. No. 200332800007
Licensee of Station KNEC(FM) ) FRN 0006-1597-43
Yuma, Colorado )
Facility ID #84353 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 4,
2002
By the District Director, Denver Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Arnold Broadcasting Company, Inc., ("Arnold
Broadcasting") licensee of FM broadcast station KNEC, in Yuma,
Colorado, has apparently willfully and repeatedly violated Section 301
of the Communications Act of 1934, as amended ("Act"), by operating an
unlicensed aural broadcast auxiliary station without Commission
authorization, and willfully and repeatedly violated Section 11.61 of
the Commission's Rules ("Rules")1, by failing to receive and transmit
required weekly and monthly Emergency Alert System ("``EAS"'') tests.
We conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended,2 that Arnold Broadcasting is apparently liable for a
forfeiture in the amount of twelve thousand dollars ($12,000).
II. BACKGROUND
2. On June 13, 2002, a Denver Office Agent inspected station
KNEC. The station operated an unlicensed aural broadcast auxiliary
radio station, specifically, a studio-to-transmitter link ("STL") on
948.0 MHz at KNEC's studio, 205 South Main Street, Yuma, Colorado.
This STL link terminated at KNEC's transmitter site approximately 12
kilometers south of Yuma, Colorado. According to the Station Manager,
the station had operated the STL since May of 1999.
3. Review of the FCC's databases revealed that Arnold
Broadcasting submitted an application for a STL license to the FCC on
July 16, 2002, approximately one month following the station
inspection. On October 23, 2002, the FCC granted Arnold Broadcasting
a license for the 948.0 MHz STL, and assigned call sign WPWD551.
4. At the time of inspection on June 13, 2002, KNEC was
monitoring the designated LP1 radio station KNNG, also owned by Arnold
Broadcasting, and the National Weather Service for EAS purposes. KNEC
was not monitoring the designated LP2 station, KATR(FM) or KRDZ(AM).
According to the State of Colorado EAS Plan, the National Weather
Service is a recommended additional source but not a replacement for
the designated local primary station. Review of the station logs
revealed that KNEC received no required monthly EAS test and no
required weekly EAS test from the designated LP1 or LP2 sources for
the period from May 13, 2002, to June 9, 2002. In addition, the
station logs revealed that KNEC failed to transmit two required weekly
EAS tests during the period from May 13, 2002, to June 9, 2002.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who
willfully fails to comply substantially with the terms and conditions
of any license, or willfully 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.3
The term "willful" as used in Section 503(b) has been interpreted to
mean simply that the acts or omissions are committed knowingly and the
term "repeated" means the commission or omission of the Act more than
once or for more than one day.4
6. Section 301 of the Act sets forth generally that no person
shall use or operate any apparatus for the transmission of energy or
communications or signals by radio within the United States except
under and in accordance with this Act and with a license granted under
the provisions of this Act. The Rules governing the licensing and
operation of aural broadcast auxiliary stations, including STL's used
by FM radio stations are set forth under Subpart E of Part 74 of the
Rules.5 Based on the evidence, we find that Arnold Broadcasting
willfully and repeatedly violated Section 301 of the Act by operating
an aural auxiliary broadcast station without a license.
7. The 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 unless the station affirmatively
requests authority to not participate.6 The EAS provides the
President and state and local governments with the capability to
provide immediate and emergency communications and information to the
public.7 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.8
8. The Rules require all broadcast stations to ensure that EAS
encoders, EAS decoders and attention signal generating and
receiving equipment is installed so that the monitoring and
transmitting functions are available during the times the station
is in operation.9 The Rules also require AM and FM stations to (a)
receive monthly EAS tests from designated local primary EAS sources
and retransmit the monthly test within 60 minutes of receipt, and
(b) conduct tests of the EAS header and EOM codes at least once a
week at random days and times.10 Based on the evidence before us,
we find that Arnold Broadcasting willfully and repeatedly violated
Section 11.61 of the Commission's Rules by failing to receive and
transmit the required monthly and weekly EAS tests.
9. The base forfeiture amount set by The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"),11 and Section 1.80 of the Commission's Rules,12 for
operating an unlicensed radio station is $10,000 and for EAS
equipment not installed or operational is $8,000. The Forfeiture
Policy Statement does not establish a base forfeiture amount for
violating the Commission's Rules requiring the monitoring, receipt
and transmission of the required monthly and weekly EAS tests from
the designated LP1 and LP2 sources. Therefore, we must determine
what an appropriate amount should be for this violation.13 It is
necessary to monitor the designated LP1 and LP2 sources and to
receive and transmit the required EAS tests from these designated
sources to ensure the operational integrity of the EAS system in
the event of an actual disaster. The requirement that stations
monitor, receive and transmit the required EAS tests is similar in
both nature and severity to other required operational readiness
checks. As failure to make measurements or conduct required
monitoring carries a base forfeiture amount of $2,000, pursuant to
the Forfeiture Policy Statement, the forfeiture will be assessed in
the amount of $2,000.
10. In assessing the monetary forfeiture amount, we must also
take into account the statutory factors set forth in Section
503(b)(2)(D) of the Act,14 which include the nature, circumstances,
extent, and gravity of the violation(s), and with respect to the
violator, the degree of culpability, and history of prior offenses,
ability to pay, and other such matters as justice may require.
Applying the Forfeiture Policy Statement and the statutory factors
to the instant case, a $12,000 forfeiture is warranted.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b)
of the Communications Act of 1934, as amended, and Sections 0.111,
0.311 and 1.80 of the Commission's Rules, Arnold Broadcasting
Company, Inc., is hereby NOTIFIED of an APPARENT LIABILITY FOR A
FORFEITURE in the amount of twelve thousand dollars ($12,000) for
violation of Section 301 of the Communications Act of 1934, as
amended and Section 11.61 of the Rules.15
12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Arnold Broadcasting Company, Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE
a written statement seeking reduction or cancellation of the
proposed forfeiture.
13. Payment of the forfeiture may be made by mailing a check or
similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment MUST INCLUDE the FCC
Registration number (FRN) and also must note the NAL/Acct. No.
referenced in the caption.
14. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and Public
Safety Division, 445 12th Street, S.W., Washington, D.C. 20554, and
MUST INCLUDE THE NAL/Acct. No. referenced in the caption.
15. 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.
16. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.16
17. Under the Small Business Paperwork Relief Act of 2002, Pub L.
No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
two-year tracking process regarding the size of entities involved
in forfeitures. If you qualify as a small entity and if you wish
to be treated as a small entity for tracking purposes, please so
certify to us within thirty (30) days of this NAL, either in your
response to the NAL or in a separate filing to be sent to the
Federal Communications Commission, Enforcement Bureau, Technical &
Public Safety Division. Your certification should indicate whether
you, including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's Office
of Communications Business Opportunities ("OCBO") set forth in
Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your response
or failure to respond to this question will have no effect on your
rights and responsibilities pursuant to
Section 503(b) of the Act. If you have questions regarding any of the
information contained in Attachment A, please contact OCBO at (202)
418-0990.
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702
9493, Return Receipt Requested and First Class Mail, to Arnold
Broadcasting Company, Inc., 803 W. Main Street, Sterling, Colorado
80751.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
Enclosure: Attachment A Attachment A
October 2002
FCC List of Small Entities
As described below, a "small entity" may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 C.F.R. §121.104 and 13 C.F.R. § 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 U.S.C. § 301; 47 C.F.R. § 11.61.
2 47 U.S.C. § 503(b).
3 47 U.S.C. § 503(b).
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under Section
503(b) of the Act, provides that "[t]he term 'willful', when used with
reference to the commission or omission of any act, means the
conscious and deliberate commission or omission of such act,
irrespective of any intent to violate any provision of this Act...."
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to Section 503(b), provides: "[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."
5 47 C.F.R. § 74.501 et seq.
6 47 C.F.R. §§ 11.11 and 11.41.
7 47 C.F.R. §§ 11.1 and 11.21.
8 47 C.F.R. § 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.
9 47 C.F.R. § 11.35.
10 47 C.F.R. § 11.61. The required monthly and weekly tests are
required to conform with the procedures in the EAS Operational
Handbook. See also, Amendment of Part 11 of the Commission's Rules
Regarding the Emergency Alert System, EB Docket No. 01-66, Report and
Order, FCC 02-64 (Feb. 26, 2002); 67 Fed Reg 18502 (April 16, 2002)
(effective May 16, 2002, the required monthly EAS test must be
retransmitted within 60 minutes of receipt.)
11 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999).
12 47 C.F.R. § 1.80.
13 The fact that the Forfeiture Policy Statement does not
specify a base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that "any omission of
a specific rule violation from the...[Forfeiture Policy
Statement]...should not signal that the Commission considers any
unlisted violation as nonexistent or unimportant." Forfeiture Policy
Statement, 12 FCC Rcd at 17,099. See e.g., American Tower
Corporation, 16 FCC Rcd 1282 (2001).
14 47 U.S.C. § 503(b)(2)(D).
15 47 U.S.C. §§ 301 and 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80
and 11.61.
16 See 47 C.F.R. § 1.1914.