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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-508
)
Clinton Radio Company ) NAL/Acct. No. 200332560021
Licensee of Radio Stations KDKD )
and KDKD-FM ) FRN 0003-7593-05
Clinton, Missouri )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 10, 2003
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Clinton Radio Company,
licensee of radio stations KDKD and KDKD-FM, apparently
liable for a forfeiture in the amount of ten thousand
dollars ($10,000) for willful and repeated violation of
Sections 11.35(a) and 73.3526(c) of the Commission's Rules
(``Rules'').1 Specifically, we find Clinton Radio Company
apparently liable for failure to maintain operational
Emergency Alert System (``EAS'') equipment, and failure to
make available all required contents of the public
inspection file during regular business hours.
II. BACKGROUND
2. On February 11, 1999, the Kansas City Office
issued to Clinton Radio Company a Notice of Violation for
violation of, inter alia, Sections 11.35 and 73.3526 of the
Rules2 resulting from a February 9, 1999, inspection that
found stations KDKD and KDKD-FM failed to have operational
EAS equipment and the public inspection file was missing
the most recent ownership report and the issues-programs
list.
3. On June 7, 2002, the Kansas City Office received
an anonymous complaint that station KDKD was not running
EAS tests. On June 17, 2002, an agent of the Kansas City
Office inspected station KDKD-FM. No station logs were
available to show evidence of any EAS tests, activations,
or any explanations of failures to receive or conduct such
tests, since at least May 1, 2002. A log entry dated June
7, 2002, indicated the EAS unit went out of service. The
station's chief operator stated that the tests had been
conducted up until June 7, 2002, when the unit went out of
service, but that the tests had not been logged.
4. On November 26, 2002, and on January 28, 2003,
agents of the Kansas City Office monitored broadcast
stations in the Kansas City EAS Operational Area to
determine compliance with EAS requirements.3 Three
stations were monitored, one being KDKD-FM and another
being a station that KDKD-FM is required to monitor
pursuant to the state's EAS plan. The agents monitored
during the scheduled time for the broadcast of each month's
Required Monthly Test (``RMT''). In both monitoring
periods, the two stations other than KDKD-FM rebroadcast
the RMT within less than 8 minutes of each other. In both
months, the agents continued to monitor KDKD-FM for 65
minutes after the RMT was last broadcast by one of the
other two stations. In both months, KDKD-FM failed to
rebroadcast the RMT within that time period.
5. On February 11, 2003, an agent of the Kansas City
Office inspected broadcast stations KDKD and KDKD-FM. The
two stations shared a single EAS installation. The agent
found the EAS equipment removed from the equipment rack and
sitting on a desk. The stations' logs contained entries
indicating the EAS unit malfunctioned on June 7, 2002, and
returned to service on June 9, 2002. The stations' chief
operator stated that the EAS unit again malfunctioned in
October, 2002, and remained non-operational. Except for
the June 7 and 9, 2002, entries, no station logs were
available showing the EAS unit had been taken out of
service. Also, no station logs were available to show
evidence of any EAS tests, activations, or reasons for
failure to receive or conduct such tests during the period
June 7, 2002, until the date of inspection. The chief
operator confirmed that the station had made no request to
the Kansas City Office District Director to allow the EAS
unit to remain out of service longer than 60 days. Also,
the public inspection file was missing letters and comments
from the public since May, 2002 (even though station
personnel stated the station received many letters and
cards from the public since that time), and the issues-
programs list.
III. DISCUSSION
6. Section 11.35(a) of the Rules requires a broadcast
station to be responsible for ensuring that EAS Encoders,
Decoders and Attention Signal generating and receiving
equipment used as part of the EAS are installed so that the
monitoring and transmitting functions are available during
the times the station is in operation. From October, 2002,
until at least February 11, 2003, the EAS unit for stations
KDKD and KDKD-FM was non-operational. No station logs were
available with the required entry showing when the
equipment was removed from service.4 Clinton Radio Company
had made no request to the Kansas City District Director
for additional time beyond 60 days to repair the unit.5 No
station logs were available with entries of any EAS tests
or activations,6 or reasons for failure to receive and
conduct such tests,7 during the period from June 7, 2002,
to the date of inspection on February 11, 2003. Monitoring
during the months of November, 2002, and January, 2003,
confirmed that KDKD and KDKD-FM failed to retransmit each
month's RMT within 60 minutes of receipt, as required, even
though the test was received and retransmitted by at least
two other stations in the area.
7. Section 73.3526(c) of the Rules requires the
broadcast licensee to make available the public inspection
file at any time during regular business hours. The file
is to contain, among other items, written comments and
suggestions from the public, and a list of programs that
have provided the station's most significant treatment of
the community issues including a brief narrative of the
issues and the description of the programs shall include,
but not limited to, the time, date, duration and title of
each program in which the issue was treated.8 On February
11, 2003, the public inspection file for stations KDKD and
KDKD-FM contained no issue-programs list; only articles
that had been aired but with no defined issues that the
program was addressing and no time, date or duration of the
programming aired. The file was for the entire year of
2002 and not broken down into quarterly segments of the
year. In addition, the file contained no written
correspondence from the public since May, 2002, even though
the stations' staff stated they had received numerous cards
and letters during that time period.
8. Based on the evidence before us, we find Clinton
Radio Company willfully9 and repeatedly10 violated Sections
11.35(a) and 73.3526(c) of the Rules by failing to
maintain operational EAS equipment and failing to make
available all required contents of the public inspection
file.
9. Pursuant to Section 1.80(b)(4) of the Rules,11 the
base forfeiture amount is $8,000 for non-operational EAS
equipment, and $10,000 for violation of public inspection
file rules. 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 Communications Act of
1934, as amended (``Act''), which include the nature,
circumstances, extent, and gravity of the violation, 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.12 Because the station
maintained a portion of the required items in the public
inspection file, a downward adjustment of the base
forfeiture for that violation from $10,000 to $2,000 is
warranted. Considering the entire record and applying the
factors listed above, this case warrants a $10,000
forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,13 and Sections 0.111, 0.311 and
1.80 of the Rules,14 Clinton Radio Company is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for willful and
repeated violation of Sections 11.35(a) and 73.3526(c) of
the Rules by failing to maintain operational EAS equipment
and failing to make available all required contents of the
public inspection file.
11. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date
of this NAL, Clinton Radio Company SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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/Acct. No. and
FRN referenced above. Requests for payment of the full
amount of this NAL under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.15
13. The response, if any, must be mailed to Federal
Communications Commission, Office of the
Secretary, 445 12th Street SW, Washington DC 20554, Attn:
Enforcement Bureau-Technical & Public Safety Division and
MUST INCLUDE THE NAL/Acct. No. referenced above.
14. 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.
15. 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 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 Communications Act. If you have
questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990.
16. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and
Certified Mail Return Receipt Requested to Clinton Radio
Company, P.O. Box 448, Clinton, Missouri 64735.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
Kansas City Office, Enforcement
Bureau
Attachment
_________________________
1 47 C.F.R. §§ 11.35(a) and 73.3526(c).
2 47 C.F.R. §§ 11.35 and 73.3526.
3 Among other requirements, Required Monthly Tests must be
retransmitted within 60 minutes of receipt. See 47 C.F.R. §
11.61(a)(1)(v). 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 (April 16, 2002) (effective May 16, 2002,
the required monthly EAS test must be transmitted within 60
minutes of receipt.)
4 See 47 C.F.R. § 11.35(b).
5 See 47 C.F.R. § 11.35(c).
6 See 47 C.F.R. §§ 11.55(c)(7) and 11.61(b).
7 See 47 C.F.R. § 11.35(a).
8 See 47 C.F.R. § 73.3526(a)(2).
9 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 4387-88
(1991).
10 The 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.'' 47
U.S.C. § 312(f)(2).
11 47 C.F.R. § 1.80(b)(4).
12 47 U.S.C. § 503(b)(2)(D).
13 47 U.S.C. § 503(b).
14 47 C.F.R. §§ 0.111, 0.311, 1.80.
15 See 47 C.F.R. § 1.1914.