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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Morongo Basin Broadcasting ) File Number: EB-04-LA-116
Corporation )
) NAL/Acct. No. 200432900010
Licensee of FM Broadcast ) FRN 0007699564
Station KCDZ
Twenty Nine Palms, California
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 29, 2004
By the District Director, Los Angeles Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Morongo Basin Broadcasting Corporation,
("Morongo") licensee of station KCDZ(FM) in Twenty Nine Palms,
California, has apparently repeatedly violated Sections 11.35(a)
and 11.61 of the Federal Communications Commission's Rules
("Rules") by failing to conduct required monthly Emergency Alert
System ("EAS") tests, and by failing to ensure that EAS
monitoring and transmitting functions were available during the
times the station was in operation.1 We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended
("Act"),2 that Morongo is apparently liable for a forfeiture in
the amount two thousand dollars ($2,000).
II. BACKGROUND
2. On May 6, 2004, field agents from the Commission's Los
Angeles Office conducted an EAS inspection of station KCDZ(FM).
The inspection revealed that station KCDZ(FM) failed to transmit
the required monthly EAS tests (RMTs) over a four month period.
Specifically, no required monthly EAS tests were transmitted
during the months of February, March, April and May 2004. A
review of the logs with the station's owner revealed that station
KCDZ(FM) had in fact received the monthly tests in question but
failed to retransmit the tests in accordance with Section 11.61
of the Rules. The station owner had no specific explanation as
to why the station failed to retransmit the required monthly EAS
tests except to say that the failure seemed to coincide with a
change in personnel. There were no EAS log entries to indicate
any problem with, or malfunction of, the EAS equipment. In fact,
station management was totally unaware that the required monthly
EAS tests were not being retransmitted until the investigation by
the field agents.
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 Required monthly and weekly tests originate from EAS
Local or State Primary sources and must be retransmitted by the
participating station.9
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.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.
6. A comprehensive review of the station's EAS log for the
period from February 1, 2004, through May 6, 2004, revealed that
KCDZ(FM) was not transmitting required monthly EAS tests in a
consistent manner and on a regular basis. There were no entries
in the station's log to indicate any problem or malfunction of
the EAS equipment. In addition, the station's owner was unable
to explain why the tests had not been transmitted. Consequently,
it appears that Morongo was not transmitting the monthly tests,
as required by Section 11.61, and was not ensuring that the EAS
equipment used by KCDZ(FM) was installed in such a way that the
transmitting function was available during the time the station
was in operation, as required by Section 11.35(a). Based on the
evidence before us, we find that Morongo Basin Broadcasting
Corporation repeatedly violated Sections 11.35(a) and 11.61 of
the Rules by failing to conduct required monthly EAS tests, and
by failing to ensure that the monitoring and transmitting
functions of EAS equipment was available during the times the
station was in operation.
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 of the Rules, 12 sets forth the base forfeiture
amounts for various violations of the Commission's Rules. The
Forfeiture Policy Statement does not establish a base forfeiture
amount for violating the Commission's rules requiring EAS tests.
Therefore we must determine what an appropriate amount should be
for this violation.13 The requirement that stations retransmit
the monthly EAS tests is similar in both nature and severity to
other required operational readiness 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 assess the base forfeiture for failing
to conduct EAS tests in the amount of $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 Act,
which includes the nature, circumstances, extent, and gravity of
the violation, 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.14 Applying the
Forfeiture Policy Statement, Section 1.80, 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, Morongo
Basin Broadcasting Corporation, 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.15
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 for Forfeiture, Morongo Basin
Broadcasting Corporation 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 must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
18000 Studebaker Rd., Suite 660, Cerritos, CA 90703 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. 20554.16
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 address listed above for the
filing of the response. 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 Return,
Receipt Requested, and regular mail, to Morongo Basin
Broadcasting Corporation, 6448 Hallee Road #5, Joshua Tree,
California 92252.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
Enclosure: FCC List of Small Entities
_________________________
147 C.F.R. §§11.35(a) and 11.61.
247 U.C.S. § 503(b).
347 U.S.C. § 503(b).
4Section 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).
5Section 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."
647 C.F.R. §§ 11.11 and 11.41.
747 C.F.R. §§ 11.1 and 11.21.
847 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.
9See 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).
1047 C.F.R. § 11.35.
11The 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.).
1212 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. § 1.80.
13The 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.
1447 U.S.C. § 503(b)(2)(D).
1547 U.S.C. § 503(b); 47 C.F.R. §§ 0111, 0.311, 1.80, 11.35(a)
and 11.61.
16See 47 C.F.R. § 1.1914.