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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
First National Broadcasting )
Corporation )
) File No. EB-01-DV-057
Licensee of Station KXOL(AM) )
Brigham City, Utah ) and
Facility ID # 87107 )
) File No. EB-01-DV-308
Licensee of Station KSOS(AM) )
Brigham City, Utah ) NAL/Acct. No. 200232800011
Facility ID # 21615 ) FRN 0000-0175-25
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 28, 2002
By the District Director, Denver Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that First National Broadcasting Corporation ("First
National"), licensee of AM broadcast stations KXOL and KSOS, licensed
to serve Brigham City, Utah, apparently willfully violated Section
73.1125 of the Commission's Rules ("Rules") by failing to maintain a
main studio, and apparently willfully and repeatedly violated
Sections 11.61 and 73.1820 of the Commission's Rules by failing to
conduct and log required Emergency Alert System ("EAS") tests.1 We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"),2 that First National is apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 13, 2001, FCC Agents from the Denver Office
inspected stations KXOL and KSOS at the shared main studio location
of 5777 South 3550 West in Roy, Utah. The Agents arrived at
approximately 11:30 a.m. MDT, to find the studio building contained
within a fenced and gated complex with no station representative
present. The only contact information available was a telephone
number posted on a sign attached to the complex entry gate for "Prime
Communication Sites, LLC."
3. Nearly one hour elapsed while the Agents made contact with and
until the arrival of the general manager (and President) of First
National at the studio. The general manager told the Agents that he
was not regularly at the studio, nor were any other employees of
First National, during the hours of 9:00 a.m. to 5:00 p.m., Monday
through Friday. The stations were operating with automated satellite
programming.
4. The inspection revealed that KXOL and KSOS share EAS
equipment. The EAS equipment was installed and appeared to be
operational. The Agents noted that KXOL and KSOS maintained a single
shared log of the required EAS activity. The most recent entry in
the EAS log of either a Required Weekly Test ("RMT") and Required
Monthly Test ("RWT") was December 6, 2000, i.e., no entries of EAS
tests, sent or received, were logged during the period December 6,
2000, through August 13, 2001. The log did not contain either a
written explanation of why the tests were omitted from the log or any
indication that the chief operator or other personnel attempted to
identify the source of any problem. The log did contain, however, an
entry for a received EAS test, dated September 14, 2001, at 2:58
p.m., one month into the future.
III. DISCUSSION
5. Section 503(b) of the 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.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 "repeated" means the commission
or omission of the act more than once or for more than one day.4
6. Section 73.1125(a) of the Rules states that "each AM, FM, or
TV broadcast station shall maintain a main studio at one of the
following locations: (1) Within the station's community of license;
(2) At any location within the principal community contour of any AM,
FM, or TV broadcast station licensed to the station's community of
license; or (3) Within twenty-five miles from the reference
coordinates of the center of its community of license as described in
§73.208(a)(1)." In addition, the station's main studio must serve
the needs and interests of the residents of the station's community
of license. To fulfill this function, a station must, among other
things, maintain a meaningful managerial and staff presence at its
main studio.1 The Commission has defined a minimally acceptable
"meaningful presence" as full-time managerial and full-time staff
personnel. In addition, there must be "management and staff
presence" on a full-time basis during normal business hours to be
considered "meaningful."2 Although management personnel need not be
"chained to their desks" during normal business hours, they must
"report to work at the main studio on a daily basis, spend a
substantial amount of time there and ? use the studio as a 'home
base.'"3
7. Based upon the evidence, we find that First National willfully
violated Section 73.1125 of the Rules by failing to maintain a
meaningful management and staff presence at the shared main studio
for KXOL and KSOS. The main studio was closed and was not staffed at
the time of the inspection, which occurred during normal business
hours. Thus it appears that First National failed to maintain a
full-time management and staff presence at the shared main studio.
8. Section 11.61 of the Rules requires that monthly EAS tests be
retransmitted within 15 minutes of receipt, that weekly EAS be
conducted at least once a week at random times and EAS tests received
and transmitted must be logged in the station's records.4 Section
73.1820(a) of the Rules provides, in part, that entries must be made
in the station log either manually by a person designated by the
licensee who is in actual charge of the transmitting apparatus or by
automatic devices. Section 73.1820(a)(1)(iii) provides that all
stations must enter each test and activation of the Emergency Alert
System (EAS) pursuant to the requirement of 47 C.F.R. Part 11 and the
EAS Operating Handbook. Stations may keep EAS data in a special EAS
log maintained at a convenient location; however, this log is
considered a part of the station log.5
9. The shared EAS log for KXOL and KSOS indicated that personnel
for both stations failed to log a single transmitted or received
test, RMT or RWT from either of the two required sources from
December 6, 2000 through August 13, 2001, the date of the FCC
inspection. In addition to the omissions in the EAS log, there was
no printer attached to the EAS unit, therefore no printouts to
support that any EAS tests were received or transmitted, including
the RMT, spanning approximately nine months. Based on the evidence,
we find that First National willfully and repeatedly violated
Sections 11.61 and 73.1820(a)(1)(iii) of the Rules by failing to
conduct and properly log required EAS tests.
10. Based on the evidence before us, we find that First National,
licensee of stations KSOS and KXOL, willfully violated Section
73.1125 of the Rules by failing to maintain a main studio in
accordance with the Rules and willfully and repeatedly violated
Sections 11.61 and 73.1820(a)(1)(iii) of the Rules by failing to
conduct and properly log required EAS tests. 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"),10 and Section 1.80 of
the Rules,11 for failure to comply with the main studio requirements
is $7,000 and for failure to maintain required records is $1,000.
The Forfeiture Policy Statement does not establish a base forfeiture
amount for violating the Rules requiring timely retransmission of the
RMT and RWT EAS tests. Therefore, we
must determine what an appropriate amount should be for this
violation.12 It is necessary to retransmit the monthly EAS tests to
ensure the operational integrity of the EAS system in the event of an
actual disaster. The requirement that stations retransmit the
monthly 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 for violation of Section 11.61 of the Rules will be
assessed in the amount of $2,000. KSOS and KXOL are co-located,
therefore, the base forfeiture amount for each violation is applied
to First National's operation of KSOS and KXOL as one entity.
Accordingly, the total base forfeiture amount for the noted
violations is $10,000. 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,13 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 $10,000 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,14 and Sections 0.111,
0.311 and 1.80 of the Commission's Rules,15 First National
Broadcasting Corporation is hereby NOTIFIED of an APPARENT LIABILITY
FOR A FORFEITURE in the amount of ten thousand dollars ($10,000) for
violations of Section 73.1125(a) and 73.1820(a)(1)(iii) of the Rules,
47 C.F.R. §73.1125(a) and 47 CFR §73.1820(a)(1)(iii).
12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules,16 within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, First National Broadcasting Corporation
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 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, SW, 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, SW,
Washington, D.C. 20554.17
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4269,
Return Receipt Requested and First Class Mail to First National
Broadcasting Corporation, 5777 South 3550 West, Roy, UT 84067.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
_________________________
1 47 C.F.R §§ 11.61, 73.1125 and 73.1820.
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 or
any rule or regulation of the Commission authorized by this Act?."
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
Section 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."
1 See Main Studio and Program Origination Rules, 2 FCC Rcd
3215, 3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
2 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616
n.6 (1991), clarified, 7 FCC Rcd 6800 n.4 (1992).
3 Id., 7 FCC Rcd at 6802.
4 47 C.F.R § 11.61(a)(1)(v). Effective May 16, 2002, the
Commission's Rules require monthly EAS tests to be retransmitted
within 60 minutes of receipt of the required monthly test message.
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).
5 47 C.F.R. § 73.1820(a)(1)(iii).
10 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999).
11 47 C.F.R. § 1.80.
12 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).
13 47 U.S.C. § 503(b)(2)(D).
14 47 U.S.C. § 503(b).
15 47 C.F.R. §§ 0.111, 0.311, 1.80.
16 47 C.F.R. § 1.80.
17 See 47 C.F.R. § 1.1914.