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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Concord Media Group of ) File Number: EB-03-LA-048
California, Inc. ) File Number: EB-03-LA-049
)
Licensee of KTPI(AM), Mojave, ) NAL/Acct. No.200432900002
California ) FRN 0004986675
Licensee of KTPI(FM), Tehacapi,
California
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 31, 2004
By the District Director, Los Angeles Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Concord Media Group of California, Inc.
(``Concord''),1 licensee of AM broadcast station KTPI(AM)2 in
Mojave, California, and FM broadcast stations KTPI in Tehacapi,
California, and KOSS in Rosamond, California, has apparently
repeatedly violated Sections 11.35(a) and 11.61(a)(2) of the
Federal Communications Commission's (``FCC'') Rules (``Rules'') by
failing to conduct required weekly Emergency Alert System
(``EAS'') tests and failing to determine the cause of failures to
receive required EAS tests.3 We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended (``Act''),
that Concord is apparently liable for a forfeiture in the amount
of four thousand dollars ($4,000).
II. BACKGROUND
2. On February 7, 2003, agents from the FCC Enforcement
Bureau's Los Angeles Office conducted EAS inspections at the
shared main studio facility of Concord stations KTPI(AM), KTPI and
KOSS, located at 352 East Ave. K-4, Lancaster, California. The
inspection revealed that stations KTPI and KOSS were co-located
and share common EAS equipment. The inspection was conducted due
to a complaint, and the agents so advised the Concord staff at the
time of the inspection.
3. The agents inspected the EAS receipts generated by the
EAS Encoder/Decoder equipment used at KTPI(AM), and station
KTPI(AM)'s station logs. The EAS receipts and station logs
indicated that station KTPI(AM) failed to transmit the required
weekly EAS tests between September 8, 2002, and December 3, 2002,
and again between December 22, 2002, and February 7, 2003; that
station KTPI(AM) failed to receive weekly tests from the
designated LP1 or LP2 between January 1, 2003, and February 7,
2003, and that entries were not made in the KTPI(AM) logs
indicating what efforts were made to determine the cause of the
failures to receive the required tests.
4. The agents also inspected the EAS receipts generated by
the EAS Encoder/Decoder equipment used at co-located FM stations
KTPI and KOSS and both stations' logs. The EAS receipts and
station logs showed that KTPI and KOSS failed to conduct any of
the required weekly EAS tests between July 1, 2002, and February
7, 2003, and failed to receive weekly tests between January 1,
2003, and February 7, 2003. The logs contain no entries
explaining why the tests were not received. There were also no
entries in the stations' logs indicating malfunctions of the EAS
equipment during these specified times. The stations' manager and
engineer were both unaware that the required weekly EAS tests had
not been transmitted for over 6 months.
4.I. DISCUSSION
5. 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 any rule,
regulation or order issued by the Commission there under, shall be
liable for a forfeiture penalty.4 The term ``willful'' as used in
Section 503(b) has been interpreted to mean simply that the acts
or omissions are committed knowingly and the term ``repeated''
means the commission or omission of the act more than once or for
more than one day.5
6. 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 Required
monthly and weekly tests originate from EAS Local or State Primary
sources and must be retransmitted by the participating station.9
7. Section 11.35 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.10 Section
11.61 of the Rules requires AM and FM 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.11 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.
8. A comprehensive review of the EAS receipts and station
logs for Concord stations KTPI(AM) for the period beginning
September 8, 2002, through February 7, 2003, and for the period
beginning July 1, 2002, through February 7, 2003, for KTPI and
KOSS, revealed that each of the three Concord stations had not
transmitted required EAS tests in a consistent manner and on a
regular basis, and each had not made entries in the station's log
to indicate what efforts had been undertaken to ascertain why
required tests had not been received or to note problems or
malfunctions of the EAS equipment. Based on the evidence before
us, we find Concord repeatedly violated Sections 11.35(a) and
11.61(a)(2) of the Rules by failing to conduct required weekly EAS
tests and failing to determine the cause of failures to receive
required EAS tests.
9. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement'') and
Section 1.80(b)(4) of the Rules sets forth the base forfeiture
amounts for various violations of the Commission's Rules. The
Rules do not establish a base forfeiture amount for violating the
Commission's rules requiring EAS tests. Therefore, we must
determine an appropriate forfeiture amount for this violation.12
The requirement that broadcast stations conduct EAS tests is
similar in both nature and severity to other required operational
performance checks identified in the Rules as required
measurements or required monitoring. Section 1.80(b)(4) of the
Rules sets the base forfeiture amount at $2,000 for failure to
make required measurements or conduct required monitoring.
Therefore, we will assess the base forfeiture for failing to
conduct EAS tests in the amount of $2000. In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set fort 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, and
any history of prior offenses, ability to pay, and other such
matters as justice may require.''13 Considering the entire record
and applying the factors listed above, a $2000 forfeiture is
warranted for station KTPI(AM) and a $2000 forfeiture is warranted
for co-located FM stations KTPI and KOSS, resulting in a total
forfeiture of $4,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80 of the
Rules, Concord Media Group of California, Inc. is hereby NOTIFIED
of this APPARENT LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($4,000) for repeated violation of Sections
11.35(a) and 11.61(a)(2) of the Rules by failing to conduct
required weekly EAS tests.14
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Concord Media of California, Inc. 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 S.W., Washington DC 20554, Attn: Enforcement Bureau,
Spectrum Enforcement 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 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.
16. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Concord Media of California, Inc., 11521 Innfields Drive,
Odessa, Florida 33556.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director, Los Angeles Office
Enforcement Bureau
Enclosure: FCC List of Small Entities
_________________________
1 At the time of inspection on February 7, 2003, Concord was the
licensee of record for all three stations. Subsequent to the
inspection, Concord assigned the licenses for all three stations
to Clear Channel Broadcasting Licenses, Inc. See, Assignment File
Number BAL/BALH/BALFTB-20030930ADF-ADI (assignments consummated
December 1, 2003).
2 Call sign changed from KAVC-AM to KTPI(AM), effective December
1, 2002.
3 47 C.F.R. §§ 11.35(a) and 11.61(a)(2).
4 47 U.S.C. § 503(b).
5 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 or any rule or regulation of the Commission
authorized by this Act....'' See Southern California Broadcasting
Co., 6 FCC Rcd 4387-88 (1991). Section 312(f)(2) of the Act, 47
U.S.C. § 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.''
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 See 47 C.F.R. §§ 11.51, 11.61. 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).
10 47 C.F.R. § 11.35(a) and (b).
11 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).
12 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999);
47 C.F.R. § 1.80(b)(4). The Forfeiture Policy Statement states
that ``...any omission of a specific rule violation from
the...[forfeiture guidelines]...should not signal that the
Commission considers any unlisted violation as nonexistent or
unimportant..'' Forfeiture Policy Statement, 12 FCC Rcd at 17099.
The Commission retains the discretion, moreover, to depart from
the Forfeiture Policy Statement and issue forfeitures on a case-
by-case basis, under its general forfeiture authority contained in
Section 503 of the Act. Id.
13 47 U.S.C. § 503(b)(2)(D).
14 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35(a)
and 11.61(a)(2).
15 See 47 C.F.R. § 1.1914.