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Before the
Federal Communications Commission
Washington, D.C. 20554
CERTIFIED MAIL #7001 0320 0002 9838 7554
RETURN RECEIPT REQUESTED
Ho'ona'auao Community Television, Inc. ) File Number EB-
02-HL-074
Licensee of Station KWBN-TV ) NAL/Acct. No.
200232860003
Honolulu, Hawaii ) FRN 0004-0750-57
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 27,
2002
By the Enforcement Bureau, Honolulu Resident Agent Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Ho'ona'auao Community Television, Inc.,
(``Ho'ona'auao''), licensee of television broadcast station KWBN
in Honolulu, Hawaii, has apparently willfully and repeatedly
violated Section 11.61(a)(1)(v) of the FCC Rules and Regulations
(``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 of 1934, as amended
(``Act''),2 that Ho'ona'auao is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On July 1, 2002, Agent Raymond of the FCC Honolulu
Resident Agent Office monitored television broadcast station
KWBN, channel 44, from 11:15 a.m. HST until 1:15 p.m. HST.
During this period, KWBN did not retransmit the EAS RMT initiated
by Hawaii State Civil Defense at approximately 11:15 a.m. HST.
3. On August 1, 2002, Agent Raymond of the FCC Honolulu
Resident Agent Office monitored television broadcast station
KWBN, channel 44, from 11:10 a.m. HST until 12:37 p.m. HST.
During this period, KWBN did not retransmit the EAS RMT initiated
by Hawaii State Civil Defense at approximately 11:15 a.m. HST.
4. On August 2, 2002, Agents Raymond and Hagihara of the
FCC Honolulu Resident Agent Office inspected the EAS equipment
installed at the KWBN studio at 875 Waimanu Street, #632,
Honolulu, Hawaii 96813. The EAS receipts generated by the EAS
Encoder/Decoder show that the EAS RMT's were not retransmitted on
either July 1, 2002 or August 1, 2002. No log entries existed in
any station log explaining why no RMT's were retransmitted in
July or August, 2002.
5. On September 3, 2002, Agent Hagihara of the FCC
Honolulu Resident Agent Office monitored television broadcast
station KWBN, channel 44, from 11:10 a.m. HST until 12:30 p.m.
HST. During this period, KWBN did not retransmit the EAS RMT
initiated by Hawaii State Civil Defense at approximately 11:15
a.m. HST.
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 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. The term ``willful''
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.3 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.4
7. The Rules provide that every TV 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
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.8 Section 11.61(a)(1)(v) of the Rules
specifically requires that monthly tests be retransmitted within
60 minutes of receipt by broadcast stations in an EAS Local Area
or State.9 Based on the evidence before us, we find that on July
1, 2002, August 1, 2002, and September 1, 2002, Ho'ona'auao
willfully and repeatedly violated Section 11.61(a)(1)(v) of the
Rules by failing to retransmit the EAS RMT.
9. 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''),10 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.11 The
Commission requires periodic tests of EAS equipment to ensure the
operational integrity of the EAS system in the event of an actual
emergency. 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 base forfeiture amount for failure to retransmit
EAS tests is set at $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, 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.12 Ho'ona'auao has a history of prior offenses, having
been issued two Notices of Violation for EAS related matters in
200113. In addition, Ho'ona'auao has failed to retransmit the
monthly EAS tests for three months in a row. Applying the
Forfeiture Policy Statement and the statutory factors to the
instant case, a forfeiture amount of $4,000 is warranted.14
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,
Ho'ona'auao Community Television, Inc., is hereby NOTIFIED of an
APPARENT LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($4,000) for violating Section 11.61(a)(1)(v) 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, Ho'ona'auao Community
Television, 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 0004-0750-57 and NAL/Acct. No.
200232860003.
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, DC
20554, and must include NAL/Acct. No. 200232860003.
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. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Ho'ona'auao Community Television, Inc, 875 Waimanu
Street, Suite 632, Honolulu, Hawaii 96813.
FEDERAL COMMUNICATIONS COMMISSION
John R. Raymond
Honolulu Resident Agent
_________________________
1 47 C.F.R. 11.61(a)(1)(v).
2 47 U.S.C. § 503(b).
3 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).
4 Section 312(f)(2) of the Act, 47 U.S.C. § 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.''
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 47 C.F.R. § 11.35.
9 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).
10 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
11 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).
12 47 U.S.C. § 503(b)(2)(D).
13 Notices of Violation were isssued to Ho'ona'auao on February
6, 2001 for failure to retransmit the EAS RMT in violation of 47
C.F.R. § 11.61(a)(1)(v), and again on March 6, 2001 for failure
to transmit a visual message of the EAS RMT in violation of 47
C.F. R. § 11.51(d).
14 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999).
15 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80,
11.61(a)(1)(v).
16 See 47 C.F.R. § 1.1914