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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Maria L. Salazar ) File Number: EB-05-KC-024
)
Licensee of Station KTCM ) NAL/Acct. No. 200532560003
Kingman, Kansas )
Facility ID # 1137 ) FRN 0009498346
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 3,
2005
By the District Director, Kansas City Office, South Central
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Maria L. Salazar, licensee of station
KTCM, in Kingman, Kansas, apparently willfully and repeatedly
violated Section 11.35(a) of the Commission's Rules
(``Rules'')1 by failing to maintain operational emergency alert
system (``EAS'') equipment and apparently willfully violated
Section 73.3526(e) of the Rules2 by failing to maintain a
complete public inspection file. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended
("Act"),3 that Ms. Salazar is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On March 17, 2005, an agent from the Kansas City Office
inspected station KTCM's public file and EAS installation in
Kingman, Kansas. Though installed and turned on, the agent
determined that the station's Sage Endec EAS unit was connected
to a radio receiver that was turned off and therefore was not
monitoring any stations. The operator on duty was unable to
produce any EAS logs or tapes, instructions for conducting EAS
tests, or an EAS handbook. The operator on duty was unable to
send an EAS test when requested to do so.
3. On March 17, 2005, the public file contained only blank
forms for Equal Employment Opportunity (``EEO'') reporting, even
though the station submitted a FCC Form 396 (Broadcast Equal
Employment Opportunity Report) on January 25, 2005. The public
file did not contain any local public notice announcement
certifications, even though the station submitted a FCC Form 303-
S (Application for renewal of broadcast station license) on
January 20, 2005.
4. On April 6, 2005, the agent contacted via telephone the
station manager for KTCM. The station manager stated he did not
know why the receiver was turned off and did not know of any
other receivers to monitor EAS sources at the station.
III. 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 of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. 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
6. Section 11.35(a) of the Rules states that broadcast
stations are responsible for ensuring that EAS equipment is
installed ``so that the monitoring and transmitting functions are
available during the times the station and systems are in
operation.'' Section 11.52(d) of the Rules states that broadcast
stations must monitor two EAS sources.6 On March 17, 2005,
station KTCM's only receiver attached to its EAS unit was turned
off. Thus, its EAS unit was incapable of monitoring either of
its two assigned EAS sources. Its EAS unit also could not
transmit the required EAS messages, because it could not receive
any messages. The operator on duty could not operate the
station's EAS equipment. The station manager did not know when
the receiver was turned off. The station was unable to provide
any evidence that any required weekly or monthly EAS tests were
conducted after the engineer installed the equipment over three
years ago.
7. Section 73.3526 of the Rules states that broadcast
licensees must maintain public inspection files at their main
studios.7 Section 73.3526(e) of the Rules specifies the content
that must be retained in the public inspection file. Section
73.3526(e)(7) of the Rules states that a public file must contain
EEO information required to be kept pursuant to Section 73.2080
until final action has been taken on the station's next license
renewal application.8 Section 73.2080 of the Rules requires a
broadcast licensee to retain a copy of FCC Form 396 (Broadcast
Equal Employment Opportunity Program Report) in its public
inspection file.9 Section 73.3526(e)(13) of the Rules states
that a public file must contain a statement certifying compliance
with public notice announcement requirements. That statement
must include the dates and times that the pre-filing and post-
filing notices were broadcast and the text thereof and must be
retained in the public file until final action on the most recent
license renewal application is taken. On March 17, 2005, an agent
requested to inspect station KTCM's public file. The public file
provided to the agent was missing a completed FCC Form 396 and a
public notice announcement certification. Station KTCM submitted
a license renewal application on January 20, 2005, however, the
application has not yet been granted.
8. Based on the evidence before us, we find that Ms.
Salazar apparently willfully and repeatedly violated Section
11.35(a) of the Rules by failing to maintain operational EAS
equipment and apparently willfully violated Section 73.3526(e) of
the Rules by failing to maintain a complete public inspection
file.
9. 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''), and Section 1.80 of the Rules, the base forfeiture
amount for EAS equipment not installed or operational is $8,000,
and the base forfeiture amount for violation of public file rules
is $10,000.10 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 violations, 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.11 Because station KTCM's public inspection
file was partially complete, we conclude a reduction from the
base forfeiture amount to $2,000 is appropriate. Applying the
Forfeiture Policy Statement, Section 1.80, and the statutory
factors to the instant case, we conclude that Ms. Salazar is
apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's Rules,
Maria L. Salazar is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of ten thousand dollars ($10,000)
for violations of Sections 11.35(a) and 73.3526(e) of the
Rules.12
11. 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, Maria
L. Salazar 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 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 Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106.
13. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, Kansas City Office, 520 NE Colbern Road, Second Floor,
Lee's Summit, Missouri, 64086-4711 and must include the NAL/Acct.
No. referenced in the caption.
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. 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.
16. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Maria L.
Salazar at her address of record.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City Office
South Central Region
Enforcement Bureau
_________________________
147 C.F.R. § 11.35(a).
247 C.F.R. § 73.3526(e).
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 also
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. § 11.52(d).
7See 47 C.F.R. §§ 73.3526(a), 73.3526(b).
847 C.F.R. § 73.2526(e)(7).
947 C.F.R. § 73.2080.
1012 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1147 U.S.C. § 503(b)(2)(D).
1247 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
11.35(a), 73.3526(e).