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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
In the Matter of )
) File No. EB-02-SD-288
Playa Del Sol Broadcasters ) NAL/Acct. No.
Licensee of Station KRCK-FM ) 200332940004
Mecca, California ) FRN: 000-425-6426
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 31, 2003
By the Enforcement Bureau: San Diego Office
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (``NAL''),
we find that Playa Del Sol Broadcasters (``Playa Del Sol''), the
licensee of broadcast station KRCK-FM, apparently willfully
violated Sections 11.35, 11.61 and 73.1125 of the Commission's
Rules (``Rules''),1 by failing to ensure that required Emergency
Alert System (``EAS'') equipment was operational, by failing to
conduct required tests of the station's EAS equipment and by
failing to maintain a local main studio. We conclude, pursuant
to Section 503(b) of the Communications Act of 1934, as amended
(``Act''),2 that Playa Del Sol Broadcasters is apparently liable
for forfeiture in the amount of fifteen thousand dollars
($15,000).
II. BACKGROUND
2. Playa Del Sol was issued a license to serve the community of
Mecca, California, on June 20, 2001, under call sign KRCK-FM. On
November 13, 2002, an agent from the Federal Communications
Commission's (``FCC'') San Diego office attempted to conduct a
routine inspection of the EAS equipment of station KRCK-FM.
However, the agent was unable to locate a studio for KRCK-FM in
the Palm Springs - Mecca, California, area. The agent checked
the local telephone directories and called the toll free
telephone directory assistance operator for a contact number for
KRCK-FM and Playa Del Sol, but none was listed. The agent
contacted Playa Del Sol requesting the location of the KRCK-FM
main studio. Playa Del Sol responded that the main transmitter
site was serving as the main studio pending the expected
completion of construction of a new main studio in Palm Desert,
California, on or before December 1, 2002.
3. On December 2, 2002, two agents from the FCC's San Diego office
attempted to conduct an inspection at KRCK-FM's nearly completed
studio in Palm Desert, California. The agents found no staff
present at the new studio. The agents contacted Playa Del Sol's
owner/general manager via the telephone numbers listed on the
outside of the studio door. Playa Del Sol's owner met the agents
at the new studio later that day. He advised that construction
of the new studio would be completed by next week. He also
advised that the station's EAS equipment was and had been located
for the past year at the old main studio at the transmitter site
near Mecca, California. He further stated that because the
studio in Mecca, California, was not easily accessible, most of
their listeners would contact KRCK-FM via their toll free number
or their website which both were announced frequently over-the-
air.
4. Later on December 2, 2002, accompanied by Playa Del Sol's
owner, the agents inspected the KRCK-FM transmitter site in
Mecca, California. The transmitter building was located on a
dirt road, with a locked fence blocking the entrance and no
apparent public access to the building. The owner provided the
agents access to the transmitter building. There was no evidence
that any main studio had been present. There were no desks,
phones, or restroom facilities in the small windowless building.
The general manager acknowledged that no main studio actually
existed at the transmitter site.
5. The station's EAS equipment was, however, located at the
transmitting site. No formal station log of EAS tests was
maintained and the automatic printouts from the EAS equipment
served as the station log. The printouts indicated the EAS
equipment was out of service from December 30, 2001, until March
10, 2002. No records existed regarding any attempt by Playa Del
Sol to determine the cause of the EAS equipment failure. No
request for additional time to repair the KRCK-FM EAS equipment
was ever received by the San Diego FCC office.
6. The EAS printouts revealed Playa Del Sol did not retransmit any
required monthly tests at KRCK-FM during the calendar year 2002
and only received one required monthly test during 2002. The
printouts also reveal that Playa Del Sol did not regularly
conduct, receive or transmit the required weekly tests at KRCK-
FM. In fact, only seven required weekly tests were retransmitted
during all of 2002. No records existed regarding any attempt by
Playa Del Sol to determine the cause of the failures to receive
the required EAS tests. At the time of the inspection of the
station's EAS equipment, the equipment was set to monitor only
one EAS source.
III. DISCUSSION
7. 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.4 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.5
8. Section 73.1125(a) of the Rules generally requires broadcast
stations to maintain a main studio at one of the following
locations: (i) within the station's community of license; (ii)
at any location within the principal community contour of any AM,
FM, TV broadcast station licensed to the station's community of
license; or (iii) within twenty-five miles from the reference
coordinates of the center of its community of license. In
adopting the main studio rules, the Commission stated that the
station's main studio must have the capability to serve the needs
and interests of the residents of the station's community of
license.6 To fulfill this function, a station must, among other
things, maintain a meaningful presence at its main studio.7 The
Commission has defined a minimally acceptable ``meaningful
presence'' as full-time managerial and full-time staff
personnel.8 The licensee need not have the same staff person and
manager at the studio, as long as there was management and staff
presence there during normal business hours.9 Although
management personnel need not be ``chained to their desks''
during normal business hours, they must ``report at the main
studio on a daily basis, spend a substantial amount of time there
and ... use the studio as a home base.''10 Although Playa Del
Sol's owner initially stated that KRCK-FM's transmitter building
was temporarily serving as a main studio, he acknowledged what
was apparent at the time of the inspection: KRCK-FM had no main
studio presence in the community at the time of the inspection.
The transmitter building was contained within a locked fence and
therefore was inaccessible to the public; there was little room
and no normal office facilities in the transmitter building;
there was no listing for KRCK-FM or Playa Del Sol in the local
telephone directory; and Playa Del Sol did not maintain a
meaningful management and staff presence at the transmitter site.
Therefore, based on the evidence, we conclude that Playa Del Sol
failed to maintain a main studio in apparent willful and repeated
violation of Section 73.1125 of the Rules.11
9. 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.12 The Rules provide that all
broadcast stations are part of the nationwide EAS network and are
categorized as participating as national EAS sources unless a
station affirmatively requests authority to not participate.13
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.14 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.15 The Rules require stations to monitor at
least two separate sources specified by the state EAS plan.16
10. The Rules specifically require broadcast stations17 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.18 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.19
Stations must also determine the cause of any failure to receive
the required EAS tests, and make appropriate entries in the
station log indicating why the required tests are not received.20
11. If a broadcast licensee's EAS equipment fails and must be
taken out for service, the Rules require the licensee to note in
the station log that the EAS equipment failed and the reasons why
the failure occurred.21 If the failure cannot be corrected
within 60 days, the Rules require the licensee to make an
informal request to the District Director of the FCC field office
serving the area for additional time to make necessary repairs.22
The request must explain fully why additional time is necessary
and when repairs are expected to be completed.
12. Playa Del Sol did not retransmit a single required monthly
test on KRCK-FM during 2002, retransmitted only 7 required weekly
tests during 2002, and was monitoring only one EAS source. The
station's EAS equipment was out of service for more than 60 days
in the beginning of 2002. No records existed indicating any
attempt by Playa Del Sol to ascertain why the equipment was not
operating or why the required monthly and weekly tests were not
being received or retransmitted. Based on the evidence, we find
that Playa Del Sol Broadcasters willfully and repeatedly violated
Sections 11.35 and 11.61 of the Rules by failing to have EAS
equipment fully operational throughout 2002, failing to conduct
required weekly and monthly EAS tests, failing to receive two EAS
sources, failing to determine why the EAS equipment was not
receiving the required EAS tests and failing to log the test
failures.
13. Based on the evidence before us, we find that Playa Del Sol,
willfully and repeatedly violated Sections 11.35, 11.61, and
73.1125 of the Rules, by failing to have EAS equipment properly
operational, failing to monitor, receive and retransmit required
monthly and weekly EAS tests and failing to ascertain the cause
of and log EAS equipment failures, 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,23 the base forfeiture amount for EAS
equipment not installed or operational is $8,000 and the base
forfeiture for failing to maintain 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.24 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 is
warranted.
IV. ORDERING CLAUSES
14. 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, Playa Del Sol Broadcasters, is hereby NOTIFIED of their
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen
thousand dollars ($15,000) for violating Sections 11.35, 11.61
and 73.1125 of the Commission's Rules.25
15. 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, Playa Del Sol Broadcasters, SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
16. 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 number referenced in the caption.
17. 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. number referenced in the caption.
18. 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.
19. 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. 20554.26
20. Under the Small Business Paperwork Relief Act of 2002, Pub L.
No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in
a two-year tracking process regarding the size of entities
involved in forfeitures. If you qualify as a small entity and if
you wish to be treated as a small entity for tracking purposes,
please so certify to us within thirty (30) days of this NAL,
either in your response to the NAL or in a separate filing to be
sent to the Federal Communications Commission, Enforcement
Bureau, Technical & Public Safety Division. Your certification
should indicate whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the list
provided by the FCC's Office of Communications Business
Opportunities (``OCBO'') set forth in Attachment A of this Notice
of Apparent Liability. This information will be used for
tracking purposes only. Your response or failure to respond to
this question will have no effect on your rights and
responsibilities pursuant to Section 503(b) of the Act. If you
have questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990.
21. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY
shall be sent, by certified mail, return receipt requested, to
Playa Del Sol Broadcasters, 801 K Street, 27th Floor, Sacramento,
CA 95814.
FEDERAL COMMUNICATIONS
COMMISSION
William R. Zears Jr.
District Director - San Diego Office
Enc.: Attachment A Attachment A
October 2002
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 C.F.R. §121.104 and 13 C.F.R. § 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 C.F.R. §§ 11.35, 11.61, and 73.1125.
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 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).
5 Section 312(f)(2), 47 U.S.C. § 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."
6 Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3217-
18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
7 Id.
8 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616
(1991), clarified, 7 FCC Rcd 6800 (1992).
9 Id., 6 FCC Rcd at 3616, n.2.
10 Id., 7 FCC Rcd at 6802.
11 See B&C Kentucky, LLC, 16 FCC Rcd 9305 (Mass Media Bur., Video
Services Div., 2001) (concluding that a television licensee's
transmitter building was not a main studio where no employees
regularly worked at that location, no production equipment or
station files were maintained there, and the building was contained
within a locked fence and therefore was inaccessible to the
public).
12 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).
13 47 C.F.R. §§ 11.11 and 11.41.
14 47 C.F.R. §§ 11.1 and 11.21
15 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.
16 47 C.F.R. § 11.52(d).
17 47 C.F.R. § 11.11.
18 47 C.F.R. § 11.35.
19 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.)
20 47 C.F.R. § 11.35.
21 47 C.F.R. § 11.35(b).
22 47 C.F.R. § 11.35(c).
23 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).
24 47 U.S.C. § 503(b)(2)(D).
25 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35, 11.61 and 73.1125.
26 See 47 C.F.R. § 1.1914.