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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
O'Hana Radio Partners ) File Number: EB-03-HL-057
)
Licensee of FM Broadcast ) NAL/Acct. No. 200432860003
Station KAWV ) FRN 0004059309
Lihue, Hawaii
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February
March 22, 2004
By the Enforcement Bureau, Honolulu Resident Agent Office,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that O'Hana Radio Partners ("O'Hana Radio Partners"),
licensee of station KAWV(FM) in Lihue, Hawaii, has apparently
willfully and repeatedly violated Sections 11.35(a) of the
Federal Communications Commission's ("FCC") Rules by failing to
have an operational Emergency Alert System ("EAS") equipment
installed and operational.1 We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"),2
that O'Hana Radio Partners is apparently liable for a forfeiture
in the amount of eight thousand dollars ($8,000).
II. BACKGROUND
2. On July 1, 2003, agents from the Honolulu Resident Agent
Office monitored KAWV, 98.1 MHz, from 11:10 a.m. until 12:35 p.m.
HST. The EAS Required Monthly Test, issued by the Hawaii State
Civil Defense at approximately 11:13 a.m. HST, was not
retransmitted by KAWV during this period. On July 1, 2003,
agents from the Honolulu Resident Agent Office inspected the KAWV
main studio, located in the Puhi Industrial Park at Leleiona
Road, Lihue, Hawaii. The rack mounted EAS equipment hadwas not
been installed such that the monitoring and transmitting
functions of the equipment were available during the times the
station was in operation.and was completely inoperative at the
time of inspection. The station manager advised the agents that
EAS equipment had never been completely installed since the
station began operation in August of 2002 and the station was
still awaiting correct parts to complete the EAS installation.
III. DISCUSSION
3. 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
4. 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
5. 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 used as part of the EAS
are installed and operational so that the monitoring and
transmitting functions are available during the times the station
is in operation. An uninstalled and incomplete EAS system was
observed during the July 1, 2003, inspection of O'Hana Radio
Partners' station KAWV. No station records existed to indicate
the EAS system was ever functional at any time since station KAWV
began operation in August of 2002.
6. Based on the evidence before us, we find O'Hana Radio
Partners willfully and repeatedly violated Section 11.35(a) of
the Rules by failing to have EAS equipment installed and
operational from August 2002, until July 1, 2003.
1.
The base forfeiture amount set by The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"),9 and Section 1.80(b)(4) of the
Rules,10 for EAS equipment not installed or operational is
$8,000. Accordingly, the total base forfeiture for failing to
have operational EAS equipment for station KAWV is $8,000.
7. 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,11 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, an $8,000
forfeiture is warranted.12
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, O'Hana Radio
Partners, is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violations of Sections 11.35(a) of the Rules.13
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, O'Hana Radio Partners 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 referenced above.
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.
20402554 and MUST INCLUDE THE NAL/Acct. No. referenced above.
12. The
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. 20554.14
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 # XXXX XXXX
XXXX XXXX XXXX, Return Receipt Requested, by Certified Mail,
Return Receipt Requested, and regular mail, to O'Hana Radio
Partners, 41-625 Eclectic Street #J-1, Palm Desert, CA 92260.
FEDERAL COMMUNICATIONS COMMISSION
Ryan Hagihara
Resident Agent, Honolulu Office
Cccc: Radio Station KAWV
O'Hana Radio Partners
P.O. Box 3422
Lihue, HI 96766
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 1,500 Employees or Fewer
Service
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 employees or less
Services 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 1,500 Employees or Fewer
Licensees
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 $18 Million in Annual Receipts
Services 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).
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 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
10 47 C.F.R. 1.80.
11 47 U.S.C. 503(b)(2)(D).
12 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
13 47 U.S.C. 503(b); 47 C.F.R. 0111, 0.311, 1.80, 11.35(a).
14 See 47 C.F.R. 1.1914.