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                           Before the
                FEDERAL COMMUNICATIONS COMMISSION
                     Washington, D.C. 20554

Certified Mail #7001 0320 0002 9838 7448                         
Return Receipt Requested

In the Matter of

New Wave Broadcasting, L.P.     )
Licensee of Radio Station KPOI-FM  )         File  No.  EB-02-HL-
038
1833 Kalakaua Avenue, Suite 500 )       NAL/Acct No. 200232860001
Honolulu, Hawaii  96815         )       FRN # 0005-3920-22



           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                          Released:  May 16, 2002

By the Enforcement Bureau: Honolulu Resident Agent Office


                        I.  INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture 
("NAL"), we find that New Wave Broadcasting, L.P., (``New 
Wave''), licensee of station KPOI-FM, Honolulu, Hawaii, has 
apparently willfully and repeatedly violated Section 
11.61(a)(1)(v) of the Commission's Rules,1 by failing to 
retransmit the Emergency Alert System (``EAS'') Required Monthly 
Test (``RMT'').  We conclude, pursuant to Section 503(b) of the 
Communications Act, as amended (``Act''),2 that New Wave is 
apparently liable for a forfeiture in the amount of two thousand 
dollars ($2,000).

                         II.  BACKGROUND

     2.   On June 1, 2001, an Agent of the FCC's Honolulu 
Resident Agent Office monitored radio station KPOI-FM on 97.5 
MHz, between the times of 11:15 a.m. HST and 12:00 p.m. HST.  The 
Agent observed that KPOI-FM did not retransmit the EAS RMT 
initiated by the Hawaii State Civil Defense at approximately 
11:15 a.m. HST.

     3.   An Official Notice of Violation (``NOV'') was issued on 
June 4, 2001 to New Wave for failure to retransmit the EAS RMT 
within fifteen minutes of receipt, in violation of Section 
11.61(a)(1)(v) of the Commission's Rules.3  New Wave responded to 
the NOV on June 15, 2001, admitted that they violated Section 
11.61(a)(1)(v) due to an operator error, and stated that action 
was being taken to ensure all personnel were aware of proper EAS 
procedures.  

     4.   Ten months later, on April 1, 2002, an Agent of the 
FCC's Honolulu Resident Agent Office again monitored radio 
station KPOI-FM on 97.5 MHz, between the times of 11:10 a.m. HST 
and 12:30 p.m. HST.  The Agent observed that KPOI-FM did not 
retransmit the EAS RMT initiated by the Hawaii State Civil 
Defense at approximately 11:14 a.m. HST.

     5.   On April 3, 2002, an Agent of the FCC's Honolulu 
Resident Agent Office inspected radio station KPOI-FM, located at 
1833 Kalakaua Avenue, Suite 500, Honolulu, Hawaii.  During the 
inspection, the Agent requested that the operator on duty 
transmit a Required Weekly Test (``RWT'') to ensure the EAS unit 
was working properly.  The operator attempted to initiate the 
RWT, but was unable to transmit the test on 97.5 MHz due to 
improperly set audio levels.


                        III.  DISCUSSION

     6.   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 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.4  The term ``willful'' as used in Section 
503(b) has been interpreted to mean simply that the acts or 
omissions are committed knowingly.5  The term ``repeated'' means 
the commission or omission of an act more than once.6

     7.   Section 11.61(a)(1)(v) of the Commission's Rules 
requires that monthly EAS tests be retransmitted within 15 
minutes of receipt by broadcast stations in an EAS Local Area or 
State.7  Based on the evidence before us, we find that on June 1, 
2001 and April 1, 2002, New Wave willfully and repeatedly 
violated Section 11.61(a)(1)(v) of the Commission's Rules8 by 
failing to retransmit the EAS monthly test.  In addition, we find 
that the KPOI-FM EAS encoder was functionally inoperative at the 
time of inspection on April 3, 2002, as it was initially unable 
to generate an over-the-air EAS test.

     8.   Pursuant to The Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines (``Forfeiture Policy 
Statement'')9, the base forfeiture amount for failure to have EAS 
equipment installed or operational is $8,000.  The Forfeiture 
Policy Statement does not establish a base forfeiture amount for 
violating the Commission's rule requiring timely retransmission 
of the monthly EAS tests.  Therefore we must determine what an 
appropriate amount should be for this violation.10  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 will be assessed in the amount of 
$2,000.
                      IV.  ORDERING CLAUSES

     9.   Accordingly, IT IS ORDERED THAT, pursuant to Section 
503(b) of the Communications Act of 1934, as amended,11 and 
Sections 0.111, 0.311 and 1.80 of the Commission's Rules,12 New 
Wave Broadcasting, L.P., is hereby NOTIFIED of its APPARENT 
LIABILITY FOR A FORFEITURE in the amount of two thousand dollars 
($2,000) for violating Section 11.61(a)(1)(v) of the Commission's 
Rules.13 

     10.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Commission's Rules,14 within thirty days of the release date 
of this NOTICE OF APPARENT LIABILITY New Wave Broadcasting, L.P., 
SHALL PAY the full amount of the proposed forfeiture or SHALL 
FILE a written statement seeking reduction or cancellation of the 
proposed forfeiture.

     11.  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. 200232860001 and the FRN # 000 5-3920-22.

     12.  The response, if any, must be mailed to Federal 
Communications Commission, Enforcement Bureau, Technical and 
Public Safety Division, 445 12th Street, S.W., Washington, DC 
20554 and must include the NAL/Acct. No. 200232860001.

     13.  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; 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.
     14.  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 Operation Group, 445 12th 
Street, S.W., Washington, D.C. 20554.15 

     15.   IT IS FURTHER ORDERED THAT a copy of this NOTICE OF 
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt 
Requested to New Wave Broadcasting, L.P. at 1833 Kalakaua Avenue, 
Suite 500, Honolulu, Hawaii 96815.


                              FEDERAL COMMUNICATIONS COMMISSION
                         

                              Ryan T. Hagihara
                              Honolulu Resident Agent
_________________________

1 47 C.F.R § 11.61(a)(1)(v).

2 47 U.S.C. § 503(b).

3 47 C.F.R § 11.61(a)(1)(v).

4 47 U.S.C. §503(b).

5  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).

6 47 U.S.C. §312(f)(2).

7 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) 

8 47 C.F.R § 11.61(a)(1)(v).

9 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).

10 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). 

11 47 U.S.C. § 503(b).

12 47 C.F.R. §§ 0.111, 0.311, 1.80.

13 47 C.F.R. § 11.61(a)(1)(v).

14 47 C.F.R. § 1.80.

15 See 47 C.F.R. § 1.1914.