Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-LA-098
)
Moon Broadcasting Riverside, LLC ) NAL/Acct. No.200432900006
Licensee of KIQQ-AM/FM ) FRN 0005031349
Barstow and Newberry Springs, )
California
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 15, 2004
By the District Director, Los Angeles Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Moon Broadcasting Riverside, LLC (``Moon
Broadcasting''), licensee of AM broadcast station KIQQ-AM in
Barstow, California and FM broadcast station KIQQ-FM in
Newberry Springs, California, has apparently repeatedly
violated Sections 11.35(a), 11.61(a)(1) and 11.61(a)(2) of
the Commission's Rules (``Rules'')1 by failing to conduct
required monthly and weekly 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 Moon Broadcasting is apparently liable for
a forfeiture in the amount of two thousand dollars ($2,000).
II. BACKGROUND
2. On April 16, 2003, an agent from the FCC
Enforcement Bureau's Los Angeles Office conducted an EAS
inspection at the main studio of co-located broadcast
stations KIQQ-AM/FM located at 710 US Highway 58, Barstow,
California. EAS equipment was installed and operating at
the time of the inspection. The EAS receipts generated by
the EAS Encoder/Decoder showed that stations KIQQ-AM/FM did
not receive or transmit required monthly EAS tests in
August, September, October, November or December of 2002.
The stations' secretary who was in charge of transmitting
the EAS tests stated that she did not know how to conduct a
required monthly test. The EAS receipts also showed that
required weekly EAS tests were not transmitted by the
stations between July 30, 2002 and January 3, 2003, with the
exception of one required weekly test transmitted on August
14, 2002. At the time of the inspection, no EAS receipts or
logs were available for inspection for the period from
January 4, 2003 to March 11, 2003. The EAS receipts
provided for the period of time between March 12, 2003 and
April 15, 2003, showed no required monthly EAS tests
received or retransmitted by stations KIQQ-AM/FM. No log
entries existed in any station log identifying the cause of
any of the failures to receive the required tests.
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.3 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.4
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.5 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.6 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.7 Required
monthly and weekly tests originate from EAS Local or State
Primary sources and must be retransmitted by the
participating station.8
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.9 Section 11.61 of the Rules requires broadcast
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.
6. A comprehensive review of the station log for the
period beginning July 30, 2002 through January 3, 2003,
revealed that Moon Broadcasting did not transmit any of the
required monthly EAS tests during this time period. The EAS
receipts also showed that required weekly EAS tests were not
transmitted by the stations between July 30, 2002, and
January 3, 2003, with the exception of one required weekly
test transmitted on August 14, 2002. 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 Moon Broadcasting repeatedly violated Sections
11.35(a), 11.61(a)(1) and 11.61(a)(2) of the Rules by
failing to conduct required monthly and weekly EAS tests and
failing to determine the cause of failures to receive
required monthly and weekly 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.11 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 forth in
Section 503(b)(2)(D) of the 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.''12 Considering the
entire record and applying the factors listed above, a $2000
forfeiture is warranted for stations KIQQ-AM/FM.
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, Moon Broadcasting Riverside, LLC 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), 11.61(a)(1) and 11.61(a)(2)
of the Rules by failing to conduct required monthly and
weekly EAS tests.13
9. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Moon Broadcasting Riverside, LLC 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. 20554.14
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 NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Moon Broadcasting Riverside, LLC, 1200
W. Venice Blvd., Los Angeles, CA 90006.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director, Los Angeles
Office
Enforcement Bureau
Enclosure: FCC List of Small Entities
_________________________
1 47 C.F.R. §§ 11.35(a), 11.61(a)(1) and 11.61(a)(2).
2 47 U.S.C. §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 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.''
5 47 C.F.R. §§ 11.11 and 11.41.
6 47 C.F.R. §§ 11.1 and 11.21.
7 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.
8 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).
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); 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.
12 47 U.S.C. § 503(b)(2)(D).
13 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80,
11.35(a), 11.61(a)(1) and 11.61(a)(2).
14 See 47 C.F.R. § 1.1914.