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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Hi-Favor Broadcasting, LLC ) File Number: EB-04-LA-174
)
Licensee of AM Broadcast ) NAL/Acct. No. 200532900001
Station KLTX ) FRN 0003784501
Pasadena, California
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 19, 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 Hi-Favor Broadcasting, LLC, ("Hi-Favor")
licensee of station KLTX(AM) in Pasadena, California, has
apparently repeatedly violated Sections 11.35(a) and 11.61(a)(2)
of the Federal Communications Commission's Rules ("Rules") by
failing to conduct required weekly 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 Hi-Favor Broadcasting, LLC is apparently liable for a
forfeiture in the amount of two thousand dollars ($2,000).
II. BACKGROUND
2. On June 29, 2004, agents from the Los Angeles Office
conducted an EAS inspection of station KLTX(AM). The inspection
revealed that station KLTX(AM) failed to consistently transmit
the required weekly EAS tests (RWTs) over a several month period.
Specifically, the required weekly EAS tests were not transmitted
in a consistent manner for the time period beginning March 12,
2004 through June 29, 2004. Station program assistants
acknowledged that the EAS equipment was not set up for automatic
transmission of the required weekly tests, that these tests had
to be performed manually and there was a failure to consistently
do so. The station engineer also acknowledged that the station
failed to transmit the RWTs during that time period. There were
no EAS log entries to indicate any problem with, or malfunction
of, the EAS equipment.
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(a) 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. 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.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's EAS logs for
the period from March 12, 2004, through June 29, 2004, revealed
that KLTX(AM) was not transmitting the required weekly 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
staff acknowledged that the tests were not being transmitted.
Consequently, it appears that Hi-Favor was not transmitting the
weekly tests, as required by Section 11.61(a)(2), and was not
ensuring that the EAS equipment used by KLTX(AM) 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 Hi-Favor
repeatedly violated Sections 11.35(a) and 11.61(a)(2) of the
Rules by failing to conduct required weekly 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. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines ("Forfeiture Policy
Statement"),11 the base forfeiture amount for failure to have EAS
equipment installed or operational is $8,000. The Forfeiture
Policy Statement does not establish a base forfeiture amount for
violating the Commission's rule requiring transmission of the
weekly EAS tests. Therefore we must determine what an
appropriate amount should be for this violation.12 The
requirement that stations transmit the weekly EAS tests is
similar in both nature and severity to other required operational
readiness checks. As failure to make measurements or conduct
required monitoring carries a base forfeiture amount of $2,000,
pursuant to the Forfeiture Policy Statement, the base forfeiture
amount for failure to transmit EAS tests is set at $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 Act13, 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, 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, Hi-
Favor Broadcasting, LLC 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(a)(2) of
the Rules.14
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, Hi-Favor Broadcasting, 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 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. 20554.15
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail # 7001 2510
0001 5861 0032, Return Receipt Requested, to Hi-Favor
Broadcasting, LLC, 136 S. Oak Knoll Avenue, Suite 202, Pasadena,
California, 91101.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
_________________________
147 C.F.R §§11.35(a), and 11.61(a)(2).
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).
10The 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.).
1112 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
12The fact that the Forfeiture Policy Statement does not specify
a base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that "any
omission of a specific rule violation from the... [Forfeiture
Policy Statement]...should not signal that the Commission
considers any unlisted violation as nonexistent or unimportant."
Forfeiture Policy Statement, 12 FCC Rcd at 17,099. See e.g.,
American Tower Corporation, 16 FCC Rcd 1282 (2001).
1347 U.S.C. § 503(b)(2)(D).
1447 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35(a),
and 11.61(a)(2).
15See 47 C.F.R. § 1.1914.