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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-NY-080
) File No. EB-03-NY-081
Kimtron, Inc. )
WPTR ) NAL/Acct. No.
200432380006
WDCD-FM )
Blue Bell, PA ) FRN: 0003 4129 62
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 13,
2004
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Kimtron, Inc. (``Kimtron''), licensee of
radio stations, WPTR and WDCD-FM, has apparently violated
Sections 11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A) of the
Commission's Rules (the ``Rules''),1 by failing to conduct
required monthly and weekly tests of the Emergency Alert System
(``EAS'') and failing to maintain station records of required
monthly and weekly EAS test messages. We conclude that Kimtron
is apparently liable for a forfeiture in the amount of six
thousand dollars ($6,000).
II. BACKGROUND
2. On June 4, 2003, a Commission agent conducted an
inspection of radio stations, WPTR and WDCD-FM's EAS, located at
4243 Albany Street, Albany, NY 12205. The two radio stations,
serving different communities, were using the same EAS system.
Based upon the agent's inspection of WPTR and WDCD-FM's station
records, it was determined that WPTR and WDCD-FM failed to
conduct required monthly tests of the EAS header codes, Attention
Signal, Test Script, and EOM code for the months of December
2002, January 2003, and March 2003, and failed to conduct
required weekly tests of the EAS header and EOM codes for the
weeks of December 1, 2002 to January 11, 2003, January 19-25,
2003, February 9-15, 2003, February 23, 2003 to March 15, 2003,
April 6-19, 2003, April 27, 2003 to May 3, 2003, and May 18-31,
2003. WPTR and WDCD-FM failed to maintain EAS equipment so that
it is capable of receiving monthly EAS test messages for the
months of December 2002, January 2003, and March 2003, and
receiving weekly EAS test messages for the weeks of December 1,
2002 to January 25, 2003, February 23, 2003 to March 8, 2003,
March 30, 2003 to April 5, 2003, April 13-19, 2003, April 27,
2003 to May 3, 2003, and May 11-24, 2003. The agent also found
that WPTR and WDCD-FM failed to maintain station records of
required monthly EAS tests received for the months of December
2002, January 2003, and March 2003, and state reasons why EAS
tests were not received, failed to maintain station records of
required weekly EAS tests received for the weeks of December 1,
2002 to January 25, 2003, February 23, 2003 to March 8, 2003,
March 30, 2003 to April 5, 2003, April 13-19, 2003, April 27,
2003 to May 3, 2003, and May 11-24, 2003, and state reasons why
EAS tests were not received.
III. DISCUSSION
3. Section 11.35(a) of the Rules requires broadcast
stations to make entries in station records of monthly and weekly
EAS tests received. Entries were not made in WPTR and WDCD-FM's
station records of monthly EAS tests received for the months of
December 2002, January 2003, and March 2003, and no entries were
made in the station records of weekly EAS tests received for the
weeks of December 1, 2002 to January 25, 2003, February 23, 2003
to March 8, 2003, March 30, 2003 to April 5, 2003, April 13-19,
2003, April 27, 2003 to May 3, 2003, and May 11-24, 2003, or
reasons why required monthly and weekly EAS tests were not
received.
4. Section 11.61(a)(1)(i) of Rules requires broadcast
stations to conduct required 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. WPTR and WDCD-FM's station records failed to
show that required monthly tests of the EAS header codes,
Attention Signal, Test Script, and EOM code were conducted for
the months of December 2002, January 2003, and March 2003.
5. Section 11.61(a)(2)(i)(A) of the Rules requires
broadcast stations to conduct required weekly tests of the EAS
header and EOM codes at least once a week at random days and
times. WPTR and WDCD-FM's station records failed to show that
required weekly tests of the EAS header and EOM codes were
conducted for the weeks of December 1, 2002 to January 11, 2003,
January 19-25, 2003, February 9-15, 2003, February 23, 2003 to
March 15, 2003, April 6-19, 2003, April 27, 2003 to May 3, 2003,
and May 18-31, 2003.
6. Based on the evidence before us, we find that, Kimtron
willfully3 and repeatedly4 violated Sections 11.35(a),
11.61(a)(1)(i), and 11.61(a)(2)(i)(A) 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, January 2003, and March 2003, failing to conduct required
weekly tests of the EAS header and EOM codes for the weeks of
December 1, 2002 to January 11, 2003, January 19-25, 2003,
February 9-15, 2003, February 23, 2003 to March 15, 2003, April
6-19, 2003, April 27, 2003 to May 3, 2003, and May 18-31, 2003,
and failing to log entries of reasons why required monthly EAS
tests were not received for the months of December 2002, January
2003, and March 2003, and failing to log entries of reasons why
required weekly EAS tests were not received for the weeks of
December 1, 2002 to January 25, 2003, February 23, 2003 to March
8, 2003, March 30, 2003 to April 5, 2003, April 13-19, 2003,
April 27, 2003 to May 3, 2003, and May 11-24, 2003.
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''),5
sets the base forfeiture amount for failure to make required
measurements or conduct required monitoring at $2,000 ($2,000 for
each of Kimtron's two radio stations), and base forfeiture for
failure to maintain required records at $1,000 ($1,000 for each
of Kimtron's two radio stations). In assessing the monetary
forfeiture amount, we must take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Communications
Act of 1934, as amended,6 (``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. Applying the Forfeiture Policy Statement
and the statutory factors to the instant case and applying the
inflation adjustments, we believe that a six thousand dollar
($6,000) 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,7 (``Act'')
and Sections 0.111, 0.311 and 1.80 of the Rules8, Kimtron is
hereby NOTIFIED of their APPARENT LIABILITY FOR A FORFEITURE in
the amount of six thousand dollars ($6,000) for willful and
repeated violations of Sections 11.35(a), 11.61(a)(1)(i), and
11.61(a)(2)(i)(A) of the 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, Kimtron 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. 200432380006 and FRN: 0003 4129 62.
11. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554, and MUST INCLUDE THE NAL/Acct. No. 200432380006.
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. 20554.9
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 Spectrum Enforcement 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 Kimtron, Inc., P.O. Box 3003, Blue Bell, PA 19422.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A - FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. §§ 11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A).
2 47 C.F.R. § 11.61(a)(1)(v).
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), 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.
547 C.F.R. § 1.80.
6
47 U.S.C. § 503(b)(2)(D).
7
47 U.S.C. § 503(b)
847 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.