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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-LA-144
)
Sunbelt Television, Inc. ) NAL/Acct. No.200432900005
Licensee of KHIZ(TV) ) FRN 0007940810
Victorville, California )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 12, 2004
By the District Director, Los Angeles Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Sunbelt Television, Inc. (``Sunbelt''),
licensee of TV broadcast station KHIZ(TV), Victorville,
California, has apparently repeatedly violated Sections
11.35(a) and 11.61(a)(1) of the Commission's Rules
(``Rules'')1 by failing to conduct required monthly
Emergency Alert System (``EAS'') tests and failing to
determine the cause of failures to receive required EAS
tests. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended (``Act'')2, that
Sunbelt is apparently liable for a forfeiture in the amount
of two thousand dollars ($2,000).
II. BACKGROUND
2. On April 15, 2003, an agent from the FCC
Enforcement Bureau's Los Angeles Office inspected TV
broadcast station KHIZ(TV) located at 15605 Village Drive,
Victorville, CA. During the course of the inspection, it
was revealed that station KHIZ(TV) failed to transmit the
required monthly EAS tests on three separate occasions over
a four month period. A review of the station log for the
period January 2, 2003 through April 15, 2003, revealed that
station KHIZ(TV) had not transmitted the required monthly
EAS tests for the months of January 2003, March 2003 and
April 2003. There were no entries in the station log to
indicate any problem or malfunction of the EAS equipment or
entries specifying any particular reasons for the failure of
the EAS apparatus to receive test transmissions as required
by Sections 11.35(a) and 11.61(a)(1) of the Rules. The
station's Chief of Master Control stated that he was unaware
that the station was not transmitting the required monthly
EAS tests and had no explanation as to why the tests were
not being transmitted or the specific months of non-
transmission.
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 any rule, regulation or order
issued by the Commission there under, shall be liable for a
forfeiture penalty.2 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.3
4. The Rules provide that every TV 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.4 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.5
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.6 Required monthly
and weekly tests originate from EAS Local or State Primary
sources and must be retransmitted by the participating
station.7
5. 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.8 Section 11.61 of the Rules requires TV 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.9 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.
6. A comprehensive review of the station log for the
period beginning January 2, 2003 through April 15, 2003,
revealed that Sunbelt was not transmitting the required
monthly EAS tests in a consistent manner and on a regular
basis. Furthermore, there were no entries in the station's
log to indicate any problem or malfunction of the EAS
equipment or entries specifying any particular reasons for
the failure of the EAS apparatus to receive test
transmissions as required by Sections 11.35(a) and
11.61(a)(1) of the Rules. Based on the evidence before us,
we find Sunbelt repeatedly violated Sections 11.35(a) and
11.61(a)(1) of the Rules by failing to conduct required
monthly EAS tests and failing to determine the cause of
failures to receive required monthly EAS tests.
7. 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.10 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.''11 Considering the entire record and
applying the factors listed above, a $2000 forfeiture is
warranted for station KHIZ(TV).
IV. ORDERING CLAUSES
8. 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, Sunbelt Television, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of two thousand dollars ($2,000) for repeated
violation of Sections 11.35(a) and 11.61(a)(1) of the Rules
by failing to conduct required monthly EAS tests.12
9. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Sunbelt Television, Inc. 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 must include the FCC Registration Number(FRN)
and the NAL/Acct. No. referenced in the caption.
11. 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.
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 for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.13
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 NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Sunbelt Television, Inc., 15605 Village
Drive, Victorville, California 92393.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director, Los Angeles
Office
Enforcement Bureau
Enclosure: FCC List of Small Entities
_________________________
12 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80,
11.35(a) and 11.61(a)(1).
2 47 U.S.C. § 503(b).
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 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.''
4 47 C.F.R. §§ 11.11 and 11.41.
5 47 C.F.R. §§ 11.1 and 11.21.
6 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.
7 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).
8 47 C.F.R. § 11.35(a) and (b).
9 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).
10 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.
11 47 U.S.C. § 503(b)(2)(D).
12 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80,
11.35(a) and 11.61(a)(1).
13 See 47 C.F.R. § 1.1914