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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Big Island Radio ) File Number: EB-03-HL-035
)
Licensee of FM Broadcast ) NAL/Acct. No. 200432860002
Station KHWI ) FRN 0004979464
Hilo, Hawaii
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 11, 2004
By the Honolulu Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Big Island Radio, (``Big Island Radio'')
licensee of station KHWI(FM) in Hilo, Hawaii, has apparently
repeatedly violated Sections 11.35(a) and 11.61 of the Federal
Communications Commission's Rules (``Rules'') by failing to
conduct required weekly and monthly Emergency Alert System
(``EAS'') tests, and failing to determine the cause of the
failures to receive the required EAS tests and log the reasons
why the EAS tests were not received.1 We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended
(``Act''),2 that Big Island Radio is apparently liable for a
forfeiture in the amount two thousand dollars ($2,000).
II. BACKGROUND
2. On May 1, 2003, agents from the Honolulu
Office monitored KHWI, 92.7 MHz, from 11:10 a.m. until 12:20 p.m.
HST. During this period, KHWI did not retransmit the EAS
Required Monthly Test (``RMT''), issued by the Hawaii Civil
Defense at approximately 11:14 a.m. HST. Later that same day,
the agents inspected the KHWI main studio at 688 Kinoole Street,
Hilo, Hawaii. KHWI shared a single TFT EAS Encoder/Decoder unit
with seven other radio stations, also owned by Big Island Radio.
The shared EAS unit automatically activated seven of the eight
stations. The eighth station, KHWI, was activated through a
manual override switch on the EAS unit. The agents observed that
the shared EAS unit was monitoring only a single source,
NOAA/Civil Defense, at the time of inspection.
3. The EAS logs indicated that the May 1, 2003,
RMT was successfully retransmitted for all of the stations
sharing the unit, but the agents observed during monitoring that
the RMT was not retransmitted by KHWI. The station's chief
operator indicated the manual override for KHWI failed to occur
on May 1, 2003. The EAS logs also revealed that the RMT was not
received or retransmitted in March 2003, or April 2003, and EAS
Required Weekly Tests (``RWT'') were not received or conducted
between January 2003, and April 2003. There were no EAS log
entries to indicate that the cause of the failure to receive and
conduct the required tests was investigated.
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. The Rules provide that every AM and FM
broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source unless the
station affirmatively requests authority to not participate.6
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.7 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.8
6. Section 11.35(a) of the Rules requires all broadcast
stations to ensure that EAS encoders, EAS decoders and attention
signal generating and receiving equipment is installed and
operational so that the monitoring and transmitting functions are
available during the times the station is in operation.
Broadcast stations must also determine the cause of any failure
to receive required monthly and weekly EAS tests, and must
indicate in the station's log why any required tests were not
received and when defective equipment is removed and restored to
service.9 Section 11.61 of the Rules requires AM 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.10 The requirement
that stations monitor, receive and retransmit the required EAS
tests ensures the operational integrity of the EAS system in the
event of an actual disaster. Based on the evidence before us, we
find that Big Island Radio repeatedly violated Sections 11.35(a)
and 11.61 of the Rules by failing to conduct required weekly and
monthly EAS tests, and failing to determine the cause of the
failures to receive the required EAS tests and log the reasons
why the EAS tests were not received.
7. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement''),11 the base forfeiture amount for failure to have
EAS equipment installed or operational is $8,000. The Forfeiture
Policy Statement does not establish a base forfeiture amount for
violating the Commission's rule requiring timely retransmission
of the monthly EAS tests. Therefore we must determine what an
appropriate amount should be for this violation.12 The
requirement that stations retransmit the monthly EAS tests is
similar in both nature and severity to other required operational
readiness checks. As failure to make measurements or conduct
required monitoring carries a base forfeiture amount of $2,000,
pursuant to the Forfeiture Policy Statement, the base forfeiture
amount for failure to retransmit EAS tests is set at $2,000. 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 Act13, which includes the nature, circumstances, extent,
and gravity of the violation(s), and with respect to the
violator, the degree of culpability, and 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, a $2,000 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, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules, Big
Island Radio, is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of two thousand dollars ($2,000) for
violations of Sections 11.35(a) and 11.61 of the Rules.14
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NOTICE OF APPARENT LIABILITY, Big Island Radio 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. and FRN No. referenced in the caption.
11. The response, if any, 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. referenced in the
caption.
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 Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.15
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 # 7001 0320
0002 9837 2291, Return Receipt Requested, to Big Island Radio,
2447 Makiki Heights Drive, Honolulu, Hawaii 96822.
FEDERAL COMMUNICATIONS COMMISSION
Ryan Hagihara
Resident Agent, Honolulu Office
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 CFR 121.104 and 13 CFR 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(a) and 11.61.
2 47 U.C.S. § 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 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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
5 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[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 47 C.F.R. §§ 11.11 and 11.41.
7 47 C.F.R. §§ 11.1 and 11.21.
8 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.
9 47 C.F.R. § 11.35(a) and (b).
10 The required monthly and weekly tests are required to conform
to 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.).
11 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
12 The fact that the Forfeiture Policy Statement does not
specify a base amount does not indicate that no forfeiture should
be imposed. The Forfeiture Policy Statement states that ``any
omission of a specific rule violation from the... [Forfeiture
Policy Statement]...should not signal that the Commission
considers any unlisted violation as nonexistent or unimportant.''
Forfeiture Policy Statement, 12 FCC Rcd at 17,099. See e.g.,
American Tower Corporation, 16 FCC Rcd 1282 (2001).
13 47 U.S.C. § 503(b)(2)(D).
14 47 U.S.C. § 503(b); 47 C.F.R. §§ 0111, 0.311, 1.80, 11.35(a)
and 11.61.
15 See 47 C.F.R. § 1.1914.