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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Jean J. Suh, )
d/b/a Radio Hankook ) File Number: EB-01-ST-091
Licensee of Station KSUH AM ) NAL/Acct. No. 200232980001
Puyallup, Washington ) FRN 0006-1414-02
Licensee of Station KWYZ AM,
Everett, Washington
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 28,
2002
By the District Director, Seattle Office, Enforcement Bureau:
I. INTRODUCTION
1.In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Jean J. Suh, d/b/a Radio Hankook,
(``Suh''), licensee of sStations KSUH (AM), in Puyallup,
WashingtonA and station KWYZ (AM) in, Everett WashingtonA., has
apparently willfully violated the Sections 11.35(a), 11.61,
17.4(g) and 17.50 of the following Sections of the Federal
Communications Commission's ("FCC") Rules by : failing 11.35(a)
(Failure to have operational Emergency Alert System ("EAS")
equipment), failing to conduct required weekly and monthly EAS
tests, failing to ; 17.4(g) (Failure to post the Antenna
Structure Registration (``ASR'') number in a conspicuous location
so that it is visible near the base of the antenna structure,);
and 1failing 7.50 (Failure to clean or repaint an antenna
structures as often as necessary to maintain good visibility.1
We conclude, pursuant to Section 503(b) of the Communications Act
of 1934, as amended (``Act''),2 that Suh is that Suh is
apparently liable for a a forfeiture in the amount of twenty two
thousand dollars ($22,000).
II. BACKGROUND
2.On March 16, 2001, the Seattle Office received an
anonymous report of alleged violations of FCC Rules at station
radio station KSUH(AM). Agents from the Seattle District Office
attempted to conduct an inspection of the station on March 29,
2001. No ASR number was posted at the base of the KSUH tower and
the paint on the structure was peeling and faded. Due to
language barriers with KSUH staff, the agents postponed the
inspection of the studio. On April 27, 2001, the agents again
attempted an inspection of the studio. The station was in the
process of moving its studio at that time. The agents advised
the station owner regarding EAS requirements and provided the
owner a copy of the AM Broadcast Station Self-Inspection
checklist, but did not attempt a further inspection of the studio
on April 27, 2001.
3.On May 3, 2001, agents from the Seattle District Office
inspected the transmitter site of station KWYZ. No ASR number
was posted at the base of the KWYZ tower.
1.On November 30, 2001, owned and operated by Jea
1. On March 29, 2001, Agents from the Seattle Office measured the
fundamental carrier and harmonics at the Puyallup location
(KSUH). Tower paint was peeling and faded. There was no ASR
posted.
1.
4.On November 30, 2001, Seattle Agents re-inspected both
the transmitter towers for stations KSUH and Everett location
(KWYZ. No ). No ASR was posted at the base of either tower. The
paint on the KSUH tower was still peeling and faded. The
sidelights on the KWYZ tower were not operational. .
1.Also on November 30, 2001, the Seattle agents inspected
the new co-located KSUH/KWYZ studio. EAS equipment was installed
at the studio, but the EAS equipment was not functionally
operable. The equipment was set in the manual mode, requiring
operator interface to conduct any EAS test. The operator on duty
at the time of the inspection was unable to perform a required
weekly test of the EAS equipment. No tape used to record EAS
tests was installed in the EAS equipment, and no logs existed of
any EAS monthly or weekly tests having been received or
retransmitted at any time during the past year. Still On
November 30, 2001, Agents inspected the Puyallup location (KSUH).
Tower paint was peeling and faded. There was no ASR posted.
1.
5.Still On November 30, 2001, Agents inspected the station
control point/studio located in Federal Way, Washington. The
station operator
6.On January 22, 2002, the Seattle District Office issued
an Official Notice of Violation (``NOV'') to Suh regarding the
stations' violations of the FCC Rules requiring operational EAS
equipment and EAS tests, ASR posting, tower lighting and
painting, annual equipment performance measurements, a designated
chief operator, station logs, and specified information in the
station public inspection file. Suh stated in her March 12, 2002
reply to the NOV that the EAS equipment was rewired to facilitate
automatic rebroadcast of received EAS tests and broadcasts, a log
has been established, the ASR numbers have been posted at the
towers, that samples to monitor the lights on the KSUH tower have
been added and the bulbs on the KWYZ tower are being replaced.
Suh also stated in her March 12, 2002 reply that an estimate had
been obtained for painting the KSUH tower, but made no commitment
to paint the tower. Rather, Suh stated that ``Radio Hankook does
not own the antenna structure and is trying to get help to
relieve some of the financial impact this has caused so the
painting can be done in as timely a manner as possible.''
7.The ASR for the KSUH tower, ASR # 1033592, lists Jean J.
Suh d/b/a Radio Hankook as the owner. An administrative update,
Application A0222778, filed November 21, 2002, also lists Jean J.
Suh d/b/a Radio Hankook as the structure's owner and Jean J. Suh,
sole proprietor as the authorized party for the structure.
III. DISCUSSION
8.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.4
9.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.5 The EAS
provides the President and state and local governments with the
capability to provide immediate and emergency communications and
information to the general public.6 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.7
10. Section 11.35 of the Rules requires all broadcast
stations to ensure that EAS encoders, EAS decoders and attention
signal generating and receiving equipment is installed and
operational so that the monitoring and transmitting functions are
available during the times the station is in operation. Section
11.61 of the Rules requires AM stations to (a) receive monthly
EAS tests from designated local primary EAS sources and
retransmit the monthly test within 60 minutes of its receipt and
(b) conduct tests of the EAS header and EOM codes at least once a
week at random days and times.8 The requirement that stations
monitor, receive and retransmit the required EAS tests ensures
the operational integrity of the EAS system in the event of an
actual disaster. Based on the evidence before us, we find that
Suh willfully violated Sections 11.35 and 11.61 of the Rules by
failing to have functionally operable EAS equipment installed at
stations KSUH and KWYZ and by failing to transmit the required
monthly and weekly EAS tests.
1.The FCC's antenna structure registration posting, marking
and lighting requirements operate in concert with FAA regulations
to ensure that antenna structures do not present hazards to air
navigation. Section 17.4(g) Section 11.35(a) of the Rules
requires broadcast stations to have EAS equipment installed and
operational so that the monitoring and transmitting functions are
available during times the station and systems are in operation.
1.
1.Sof the Rules requires that the ASR number be posted in a
conspicuous location so that it is readily visible near the base
of the antenna structure. The posting requirement allows easy
contact with the structure owner if problems arise. . Section
17.50 of the Rrules requires that painted antenna structures
shall be cleaned or repainted as often as necessary to maintain
good visibility. Based
1.
11. Based on the evidence before us, we find that Suh
violated Section 11.35(a) of the Rules by failing to maintain
operational EAS equipment. We also find that Suh violated
Sections 17.4(g) and 17.50 of the Rules byit failing to post the
ASR numbers at the each antenna structures for both station KSUH
and station KWYZ, and failing to maintain good visibility of the
KSUH an antenna structure.
12. 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, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture Policy
Statement'')9, and Section 1.80(b)(4) of the Rules,10 for EAS
equipment not installed or operational is $8,000, and for failure
to comply with prescribed antenna structure lighting or marking
(painting) is $10,000. The Forfeiture Policy Statement does not
establish a base forfeiture amount for failure to post the
antenna structure registration number. The Commission has
determined, however, that an appropriate base forfeiture amount
for failure to post the ASR number is two thousand dollars
($2,000) per violation.11. Accordingly, the total base forfeiture
for failing to have operational EAS equipment, failure to
maintain good visibility of the antenna structure for station
KSUH and failure to post the ASR numbers at both station antenna
structures is $22,000.
13. 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 Act12, which includes 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 $22,000
forfeiture 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, 0.311 and 1.80 of the Commission's Rules, Jean J.
Suh d/b/a Radio Hankook, is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of twenty two thousand
dollars ($22,000) for violations of Sections 11.35, 17.4(g), and
17.50 of the Rules.13
15. 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, Jean J. Suh SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
16. 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 should note the
NAL/Acct. No. 200232980001 and FRN 0006-1414-02.
17. 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.
20402 and MUST INCLUDE THE NAL/Acct. No. 200232980001.
18. 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.
19. 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. 20554.14
20. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail # 7001 2510
0007 6500 1001, Return Receipt Requested, to Jean J. Suh, d/b/a
Radio Hankook, 807 South 336th Street, Federal Way, Washington
98030.
FEDERAL COMMUNICATIONS COMMISSION
Dennis Anderson
District Director, Seattle Office
_________________________
1 47 C.F.R §§11.35, 11.61, 17.4(g), and 17.50.
2 47 U.C.S. § 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).
5 47 C.F.R. §§ 11.11 and 11.41.
6 47 C.F.R. §§ 11.1 and 11.21.
7 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.
8 The required monthly and weekly tests are required to conform
to 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.).
9 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
10 47 C.F.R. § 1.80.
11 See American Tower Corporation, 16 FCC Rcd 1282 (2001).
12 47 U.S.C. § 503(b)(2)(D).
13 47 U.S.C. § 503(b); 47 C.F.R. § 0111, 0.311, 1.80, 11.35,
17.4(g) and 17.50.
14 See 47 C.F.R. § 1.1914.