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FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
Aracelis Ortiz, Executrix of the ) File No. EB-02-SD-144
Estate of Carlos Ortiz ) NAL/Acct. No.
P.O. Box 530391 ) 200232940008
Harlingen, TX 78553 ) FRN: 0003-7552-87
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the Enforcement Bureau: San Diego Office
Released: September 30, 2002
1. In this Notice of Apparent Liability for Forfeiture (``NAL''),
we find that Aracelis Ortiz, Executrix of the Estate of Carlos
Ortiz (``Aracelis Ortiz''), the licensee of Class A Television
Broadcast (``Class A'') station KCOS-LP in Phoenix, Arizona,
apparently willfully violated Sections 11.35(a) and 73.1125(c) of
the Commission's Rules and Regulations (``Rules''),1 by failing
to ensure that required Emergency Alert System (``EAS'')
equipment was operational and failing to establish a main studio
at a location within the station's predicted Grade B contour (as
outlined in Section 73.683 of the Rules).2 We conclude, pursuant
to Section 503(b) of the Communications Act of 1934, as amended
(``Act'')3, that Aracelis Ortiz is apparently liable for
forfeiture in the amount of fifteen thousand dollars ($15,000).
2. On May 6, 2002, an agent from the Federal Communications
Commission's (``FCC'') San Diego office attempted to conduct a
routine inspection of the EAS equipment of Class A station KCOS-
LP. Station KCOS-LP was granted status as a Class A station on
April 27, 1999.4 The agent discovered that there was neither a
studio address nor telephone listing for station KCOS-LP in any
of the telephone directories for the Phoenix area. However, the
transmitter for station KCOS-LP, located on Usery Mountain near
Mesa, Arizona, was operating on TV channel 28.
3. On May 9, 2002, an agent at the FCC's San Diego office
telephoned the licensee in Harlingen, Texas to obtain a studio
address and telephone number for KCOS-LP. No one knowledgeable
about KCOS-LP was available at that time. A letter of inquiry
was sent to the licensee on May 10, 2002, requesting the identity
of a contact person in the Phoenix area responsible for KCOS-LP,
the address of the local studio and a local telephone number. A
fax reply was received by the FCC's San Diego office on May 20,
2002, giving a telephone number and an address for the KCOS-LP
studio. A call was attempted to the KCOS-LP studio, but the
number provided by the licensee was disconnected.
4. On June 24, 2002, an agent from the San Diego office visited
the studio address provided, 6750 E. Main St., Suite 106, Mesa,
Arizona. The agent found no studio for KCOS-LP at that address.
Rather the transmitter site management company was located at
that address. Employees of the site management company provided
a Phoenix area telephone number for KCOS-LP.
5. On June 25, 2002, using the telephone number provided by the
site management company, the agent reached Mr. Thomas Norcross,
station manager for KCOS-LP. Mr. Norcross stated that KCOS-LP
did not have a studio in operation at that time, but one was
under construction at 3820 E. Main St, Suite 10, Mesa, Arizona.
He also stated that KCOS-LP was operating as a Low Power TV
station and did not originate any programming, as it was
rebroadcasting programs received by an earth station at the
transmitter site, atop Usery mountain. Mr. Norcross also stated
that KCOS-LP did not have any EAS equipment installed at that
time, but would when the studio was completed.
6. 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.5 The term ``willful'' as used in Section
503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly.6
7. Commission licensees are responsible for familiarizing
themselves and complying with applicable statutes and Commission
Rules and policies, regardless of the length of time the licensee
has been engaged in broadcasting.7 The Rules provide that every
broadcast station, including a Class A television 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.8 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.9 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
8. The Rules specifically require broadcast stations, including
Class A stations,11 to install and make operational EAS equipment
(encoders, decoders, attention signal generators and receivers)
so that monitoring and transmitting functions are available
during the times whenever the station is in operation.12 The
Rules also require broadcast 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.13 Based on the evidence, we find that on
June 25, 2002, Aracelis Ortiz willfully violated section 11.35 of
the Rules by failing to have EAS equipment installed and
9. The Rules also require broadcast stations, including Class A
stations, to establish and maintain a main studio to serve the
needs and interests of the residents of the station's community
of license.14 Based on the evidence, we further find that on
June 25, 2002, Aracelis Ortiz did not maintain a studio in the
Phoenix area for Station KCOS-LP.
10. Based on the evidence before us, we find that Aracelis Ortiz,
Executrix of the Estate of Carlos Ortiz, apparently willfully
violated Sections 11.35(a) and 73.1125(c) of the Rules, by
failing to have EAS equipment properly installed and operational
and failing to maintain a main studio. Pursuant to The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines,15 the
base forfeiture amount for EAS equipment not installed or
operational is $8,000 and for not maintaining a main studio is
$7,000. 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, which include the nature, circumstances,
extent, and gravity of the violation(s), and with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require.16 In applying Section 1.80(b)(4) of the Rules and the
statutory factors to the instant case, we find no compelling
evidence to support any adjustments to the base forfeiture
amounts. Therefore, a total forfeiture in the amount of $15,000
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of
the Act, and Sections 0.111, 0.311 and 1.80 of the Commission's
Rules, Aracelis Ortiz, Executrix of the Estate of Carlos Ortiz,
is hereby NOTIFIED of their APPARENT LIABILITY FOR A FORFEITURE
in the amount of fifteen thousand dollars ($15,000) for violating
Sections 11.35(a), and 73.1125(c) of the Commission's Rules and
12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Rules, within thirty days of the release date of this NOTICE OF
APPARENT LIABILITY, Aracelis Ortiz, Executrix of the Estate of
Carlos Ortiz, 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 note the
NAL/Account No. 200232940008 and FRN 0003-7552-87.
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 the NAL/Acct. No. 200232940008.
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; 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 Receivable Operation Group, 445 12th Street,
S.W., Washington, D.C. 20554.18
17. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY
shall be sent, by certified mail, return receipt requested, to
Aracelis Ortiz, Executrix of the Estate of Carlos Ortiz, P.O. Box
530391, Harlingen, TX 78553.
William R. Zears Jr.
San Diego Office
1 47 C.F.R. §§ 11.35(a), and 73.1125(c).
2 47 C.F.R. § 73.683.
3 47 U.S.C. § 503(b).
4 See BLTTL-19990325JD.
5 47 U.S.C. § 503(b).
6 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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).
7 See Bay Television, Inc., 10 FCC Rcd 11509 (1995) (rejecting
licensee's request for lenient treatment because it had been on the
air for barely six months.); Radio One Licensees, Inc., Memorandum
Opinion and Order, DA 02-219 (Enf. Bur. Jan 31, 2002) (rejecting
licensee's request for lenient treatment because the station had
been acquired less than six months before, noting also that the
licensee was an experienced broadcaster).
8 47 C.F.R. §§ 11.11 and 11.41.
9 47 C.F.R. §§ 11.1 and 11.21
10 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.
11 47 C.F.R. § 11.11.
12 47 C.F.R. § 11.35.
13 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.)
14 47 C.F.R. § 73.1125(c).
15 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).
16 47 U.S.C. § 503(b)(2)(D).
17 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35, and 73.1125.
18 See 47 C.F.R. § 1.1914.