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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
In the Matter of )
) File No. EB-03-SD-017
Desert Television LLC ) NAL/Acct. No.
TV Station KPSP-LP ) 200332940006
Cathedral City-Palm Springs, CA ) FRN: 000-497-4044
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the Enforcement Bureau: San Diego Office
Released: March 31, 2003
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (``NAL''),
we find that Desert Television LLC (``Desert''), the licensee of
Class A Television Broadcast (``Class A'') station KPSP-LP,
apparently willfully and repeatedly violated Sections 11.35 and
11.61 of the Commission's Rules (``Rules''),1 by failing to
ensure that required Emergency Alert System (``EAS'') equipment
was operational, failing to receive and retransmit required
monthly and weekly EAS tests, failing to determine the cause of
the failure to receive the required tests, and failing to
maintain required EAS logs. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended (``Act'')2,
that Desert Television LLC is apparently liable for forfeiture in
the amount of eight thousand dollars ($8,000).
II. BACKGROUND
2. 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 KPSP-LP.
According to FCC records, a station license for station KPSP-LP
had been issued to Desert on July 9, 2001, sixteen months prior
to the inspection. During the inspection the agent found that
EAS equipment at the station's main studio site was not
operational. The station's chief engineer advised the agent that
the EAS equipment had not been in service since they moved to the
new facility approximately eleven weeks prior because new antenna
connector parts were needed and had been back ordered. The
repair parts had arrived on November 11, 2002, and would be
installed by November 15, 2002, to make the EAS equipment
operational. The San Diego agent advised Desert station
personnel during the inspection of the importance of maintaining
operational EAS equipment and conducting the required monthly and
weekly EAS test, and sent a reminder to Desert's chief engineer
on November 20, 2002, advising that Section 11.35(c) of the Rules
requires notification to the San Diego District Director if any
additional delay occurs in getting the EAS equipment operational.
The San Diego District Office received no request from Desert for
additional time to repair the KPSP-LP EAS equipment.
3. A follow up inspection on February 12, 2003, by an agent from
the FCC's San Diego office revealed that KPSP-LP had received
just one required weekly EAS test during the three months since
the November 13, 2002, inspection. That single EAS weekly test
was received on February 11, 2003, the day before the inspection.
Although the EAS equipment appeared to be operational at the time
of the February 12, 2003, inspection, the station records
contained no evidence that any required monthly or weekly EAS
test had been received or retransmitted between November 13, 2002
and February 10, 2003. The station records also did not indicate
any attempt by station personnel to ascertain why the EAS
equipment had not been operational and the required monthly and
weekly EAS tests had not been conducted since the date of the
inspection on November 13, 2002, until February 11, 2003. Nor
could the station's staff explain the delay in reestablishing the
station's EAS operability.
III. DISCUSSION
4. 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
5. 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.6 The Rules provide that all
broadcast stations, including Class A television 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.7 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.8 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.9
6. The Rules specifically require broadcast stations, including
Class A television stations,10 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.11 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.12 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.13
7. 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.14 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.15 The request
must explain fully why additional time is necessary and when
repairs are expected to be completed.
8. Based on the evidence, we find that Desert willfully and
repeatedly violated Sections 11.35 and 11.61 of the Rules by
failing to have EAS equipment fully operational at KPSP-LP from
approximately September 2002 when the station relocated until
February 11, 2003, and by failing to receive and retransmit the
required monthly and weekly EAS tests, failing to ascertain why
the required tests were not conducted and failing to log any EAS
equipment failures. Desert was advised by an FCC agent during
the November 13, 2002, inspection of the importance of
maintaining operational EAS equipment and conducting the required
tests. Yet, on the date of second inspection, KPSP-LP had only
one EAS printout indicating that the station could receive the
first local primary (LP-1) station. There were no records that
indicated why KPSP-LP was not receiving the first and second
local primary stations required monthly and weekly tests from
November 17, 2002 (the date the station's EAS equipment was
ostensibly repaired), through February 10, 2002. Also, there
were no records that indicated why KPSP-LP was not transmitting
the required weekly or monthly tests during this same period.
9. We also find that Desert willfully violated Section 11.35 of
the Rules by failing to make an informal request to the FCC's San
Diego office for additional time to repair defective EAS
equipment. Desert was reminded after the first inspection of the
requirements of Section 11.35(c) via electronic message from the
FCC's San Diego office on November 20, 2002. The FCC San Diego
office received no informal request concerning EAS equipment from
KPSP-LP.
10. Based on the evidence before us, we find that Desert
Television LLC, willfully and repeatedly violated Sections 11.35
and 11.61 of the Rules, by failing to have EAS equipment
operational, by failing to monitor, receive and retransmit
required monthly and weekly EAS tests, and by failing to
ascertain why the required tests were not conducted and failing
to log any EAS equipment failures. Pursuant to The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines,16 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.17 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
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, Desert Television LLC, is hereby NOTIFIED of their
APPARENT LIABILITY FOR A FORFEITURE in the amount of eight
thousand dollars ($8,000) for violating Sections 11.35 and 11.61
of the Commission's Rules.18
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, Desert Television LLC, 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 should note
the NAL/Account No. 200332940006 and FRN 000-497-4044.
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. 200332940006. 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.
15. 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. 20554.19
16. 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.
17. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY
shall be sent, by certified mail, return receipt requested, to
Desert Television LLC, 31276 Dunham Way, Thousand Palms,
California 92276.
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 and 11.61.
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 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).
7 47 C.F.R. §§ 11.11 and 11.41.
8 47 C.F.R. §§ 11.1 and 11.21
9 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.
10 47 C.F.R. § 11.11.
11 47 C.F.R. § 11.35.
12 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.)
13 47 C.F.R. § 11.35.
14 47 C.F.R. § 11.35(b).
15 47 C.F.R. § 11.35(c).
16 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).
17 47 U.S.C. § 503(b)(2)(D).
18 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35 and 11.61.
19 See 47 C.F.R. § 1.1914.