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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-CF-097
Pacifica Foundation, Inc. )
WPFW ) NAL/Acct. No.
200332340004
Washington, DC )
) FRN: 0007 2593 10
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 26, 2003
By the District Director, Columbia Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Pacifica Foundation, Inc.
(``Pacifica''), licensee of FM broadcast station WPFW,
Washington, DC, has apparently violated Sections
11.61(a)(1)(i), 11.61(a)(2)(i)(A) and 73.1870(c)(3) of the
Commission's Rules (the ``Rules''),1 by failing to conduct
required monthly and weekly tests of the Emergency Alert
System (``EAS'') and by failing to verify the log in writing
by the chief operator. We conclude that Pacifica is
apparently liable for a forfeiture in the amount of three
thousand dollars ($3,000).
II. BACKGROUND
2. On February 14, 2003, an agent from the Columbia Field
Office inspected broadcast station WPFW, in Washington, DC.
There was no station manager, chief operator or engineer
present or available for the inspection. A representative
of Pacifica accompanied the agent during the inspection.
The agent reviewed the station logs from December 1, 2002
through January 31, 2003. He noted that no EAS weekly or
monthly tests had been transmitted during the two month
period. He was provided a continuous EAS equipment tape
printout showing three weekly and one monthly tests received
in the month of December 2002. Specifically, the agent
noted that weekly tests were received on December 2, 9, and
16, 2002; and a monthly test was received on December 27,
2002. Additionally, there was no designation of the chief
operator in writing with a copy of the designation posted.
III. DISCUSSION
3. Section 11.61(a)(1)(i) of the Rules requires FM
stations to conduct monthly tests of the EAS header codes,
Attention Signal, Test Script and EOM code that conforms to
procedures in the EAS Operating Handbook and Section
11.61(a)(1)(v).2 Pacifica's station records showed that no
required EAS monthly tests were conducted in December 2002
and January 2003.
4. Section 11.61(a)(2)(i)(A) of the Rules requires FM
stations to conduct weekly tests of the EAS header and EOM
codes at least once a week at random days and times.
Pacifica's station records showed that no required weekly
tests were conducted from December 2002 to January 2003.
5. Section 73.1870(c)(3) of the Rules requires the chief
operator to date and sign the log in writing, verifying that
the station is operating as required by the Rules. A review
of station records from December 2002 to January 2003 showed
that the chief operator, or his designee, had not reviewed,
dated and signed the logs as required. Section
73.1870(b)(3) of the Rules requires that a chief operator be
designated in writing, and a copy posted with the station
license. 3 A copy of the designation could not be found.
6. Based on the evidence before us, we find that Pacifica
willfully4 and repeatedly5 violated Sections 11.61(a)(1)(i),
11.61(a)(2)(i)(A), and 73.1870(c)(3) of the Rules by failing
to conduct required monthly tests of the EAS header codes,
Attention Signal, Test Script, and EOM code for the months
of December 2002 and January 2003, by failing to conduct
required weekly tests of the EAS header and EOM codes from
December 2002 to January 2003, and by failing to maintain
the required records by verifying that the station has been
operating as required, by the chief operator in writing.
7. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997),
recon. denied, 15 FCC Rcd 303(1999) (``Forfeiture Policy
Statement''),6 sets the base forfeiture amount for failure
to make required measurements or conduct required monitoring
at $2,000, and for failure to maintain the required records
at $1,000. In assessing the monetary forfeiture amount, we
must take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Act,7 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. Applying the Forfeiture
Policy Statement and the statutory factors to the instant
case and applying the inflation adjustments, we believe that
a three thousand dollar ($3,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,8
(``Act'') and Sections 0.111, 0.311 and 1.80 of the Rules,9
Pacifica is hereby NOTIFIED of their APPARENT LIABILITY FOR
A FORFEITURE in the amount of three thousand dollars
($3,000) for willful and repeated violations of Sections
11.61(a)(1)(i), 11.61(a)(2)(i)(A), and 73.1870(b)(3) of the
Commission's Rules.
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, Pacifica 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/Acct. No. 200332340004 and FRN: 0007259310.
11. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington,
D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. 200332340004.
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 (``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.
13. 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 Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.10
14. 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 and 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.
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return
Receipt Requested to Pacifica Foundation, Inc., 1929 Martin
L. King Jr. Way, Berkley, CA 94704.
FEDERAL COMMUNICATIONS
COMMISSION
Charles C. Magin
District Director
Columbia Office
Attachment A - FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. §§ 11.61(a)(1)(i), 11.61(a)(2)(i)(A) and
73.1870(c)(3).
2 47 C.F.R. § 11.61(a)(1)(v).
3 47 C.F.R. § 73.1870(b)(3).
4 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 (1991).
5
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).
6 47 C.F.R. § 1.80.
7 47 U.S.C § 503(b)(2)(D).
8
47 U.S.C. § 503(b).
9
47 C.F.R. §§ 0.111, and 0.311.
10 See 47 C.F.R. § 1.1914.