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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
In the Matter of )
)
Class A TV Station KLHU-CA ) File No. EB-02-SD-033
TV 45 Productions, Inc. ) NAL/Acct. No.
1600 W. Acoma Boulevard, Suite 36 ) 200232940003
Lake Havasu City, AZ 86403 ) FRN #: 0004-0823-76
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 13, 2002
Released: March 13, 2002
By the Enforcement Bureau: San Diego Office
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (``NAL''),
we find TV 45 Productions, Inc. (``TV 45''), the licensee of
Class A TV station KLHU-CA Lake Havasu City, Arizona is
apparently liable for a forfeiture, pursuant to Section 503(b) of
the Communications Act of 1934,1 as amended (``Act''), for
apparently willfully and repeatedly violating Section 11.35(a)
and Section 11.61 of the Commission's Rules and Regulations
(``Rules'')2 by failing to ensure that required Emergency Alert
System (``EAS'') equipment was installed and operational, and by
failing to conduct required weekly and monthly EAS tests at
station KLHU-CA. We conclude that TV 45 Productions, Inc., is
apparently liable for forfeiture in the amount of eight thousand
dollars ($8,000).
II. BACKGROUND
2. On January 30, 2002, an agent from the Federal Communications
Commission's (``FCC'') San Diego office attempted to conduct an
inspection of EAS equipment and records at the studio location of
Class A TV station KLHU-CA. The studio was found to be located
at 1600 W. Acoma Boulevard, Suite 36, Lake Havasu City, Arizona.
During the inspection of station KLHU-CA the agent found that TV
45 did not have any EAS equipment installed. Because there was
no EAS equipment installed, the station could not monitor EAS
transmissions from designated sources, originate EAS
transmissions or retransmit EAS transmissions. In addition, TV
45 did not maintain or make available for inspection any EAS
records.
3. During the inspection Mr. James W. Husted, the owner and
president of TV 45, advised the agent that station KLHU-CA had
purchased the necessary EAS equipment but that it had not been
installed. Mr. Husted told the agent that he had obtained an EAS
unit for the station but it was stored in the corner of the
associated warehouse. He also stated that this station had only
recently become a Class A TV station, so he did not have the time
to set up the EAS unit yet.
4. Upon return to the San Diego office, the agent examined the FCC
database and found that the first authorization for Class A TV
status for KLHU-CA (then authorized under the call sign K45AJ)
had been issued on February 6, 2001, nearly one year before the
inspection.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who
willfully3 or repeatedly4 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. It is not pertinent
whether or not the licensee's actions or omissions are intended
to violate the law.
6. The Rules require broadcast stations, including Class A TV
stations,5 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.6 The
Rules also require broadcast stations to receive monthly EAS
tests from designated local primary EAS sources, retransmit the
monthly test within 15 minutes of its receipt and conduct tests
of the EAS header and EOM codes at least once a week at random
days and times.7 A broadcast station licensed for nearly one
year has had adequate time to secure and install the necessary
EAS equipment.8
7. Based on the evidence before us, we find that on January 30,
2002, TV 45 Productions, Inc., willfully and repeatedly violated
Sections 11.35(a) and 11.61 of the Rules, by failing to have EAS
equipment properly installed at station KLHU-CA so that
monitoring and transmitting functions were available and by
failing to conduct the required monthly and weekly EAS tests.
Pursuant to The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines,9 the base forfeiture amount for EAS
equipment not installed or operational is $8,000. 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.10 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 $8,000 is warranted.
IV. ORDERING CLAUSES
8. 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,11 TV 45 Productions, Inc., is hereby NOTIFIED of their
APPARENT LIABILITY FOR A FORFEITURE in the amount of eight
thousand dollars ($8,000) for violating Sections 11.35(a) and
11.61 of the Commission's Rules and Regulations.12
9. 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, TV 45 Productions, Inc., SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. 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/Account No. 200232940003 and FRN # 0004-0823-76.
11. 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. 200232940003.
12. 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.
13. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.13
14. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY
shall be sent, by certified mail, return receipt requested, to TV
45 Productions, Inc., 1600 W. Acoma Boulevard, Suite 36, Lake
Havasu City, AZ 86403.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director
San Diego Office
_________________________
1 47 U.S.C. § 503(b).
2 47 C.F.R. §§ 11.35(a) and 11.61
3 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).
4 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`repeated' ... means the commission or omission of such act more
than once or, if such commission or omission is continuous, for
more than one day.'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
5 47 C.F.R. § 11.11.
6 47 C.F.R. § 11.35.
7 47 C.F.R. § 11.61. The required monthly and weekly tests must
conform with the procedures in the EAS Operational Handbook.
8 See e.g., Radio One Licenses, Inc., Memorandum Opinion and Order,
DA 02-219 (Enf. Bur. Jan. 31, 2002); Rego Inc., Forfeiture Order,
DA 01-2177 (Enf. Bur. Sept 19, 2001).
9 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).
10 47 U.S.C. § 503(b)(2)(D).
11 47 C.F.R. §§ 0.111, 0.311, 1.80.
12 47 C.F.R. §§ 11.35(a) and 11.61.
13 47 C.F.R. § 1.1914.