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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Richard A. & Joann R. Peterson, ) File No. EB-05-SD-175
Joint Tenants )
) NAL/Acct. No:
Licensee of Station KBSZ(AM) ) 200632940001
Wickenburg, Arizona )
Facility ID #11217 FRN: 0007-7068-64
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 18, 2005
By the District Director, San Diego Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1.1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Richard A. & Joann R.
Peterson, Joint Tenants (``Petersons''), licensees of AM
Broadcast Radio station KBSZ in Wickenburg, Arizona, apparently
willfully and repeatedly violated Section 11.35 of the
Commission's Rules (``Rules''),1 by failing to ensure the
operational readiness of KBSZ(AM)'s Emergency Alert System
(``EAS'') equipment. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended (``Act'')2, that the
Petersons are apparently liable for a forfeiture in the amount
of eight thousand dollars ($8,000).
II. BACKGROUND
1.2. On August 10, 2005, an agent from the Enforcement
Bureau's San Diego Office conducted an inspection at the main
studio of KBSZ(AM) located at 340 W. Wickenburg Way, Wickenburg,
Arizona. The agent observed that there was no EAS equipment at
their studio. The agent asked Mr. Peterson the status of the
station's EAS equipment and Mr. Peterson stated that the station
did not have any EAS equipment installed at the studio or at the
transmitter site. He also stated that his contract engineer
advised him that he needed EAS equipment for KBSZ(AM). Mr.
Peterson told the agent that KBSZ(AM) was once owned by Circle S
Broadcasting, Co., Inc. and was once co-located with radio
station KSWG(FM), also licensed to Wickenburg, Arizona.3 All
EAS tests received and transmitted by KSWG(FM) are aired on
KBSZ(AM) via a studio-to-transmitter link and all EAS records
are maintained by KSWG(FM), according to Mr. Peterson. The San
Diego agent observed that KBSZ(AM) maintained no EAS logs and
had no way to monitor any EAS alerts at its station. The agent
then contacted KSWG(FM) by telephone and requested that KSWG(FM)
conduct an EAS weekly test. The agent monitored station
KBSZ(AM) and noted that the EAS test signal from KSWG(FM) was
being relayed.
1.3. On August 18, 2005, the San Diego agent contacted
the KSWG(FM) general manager. The general manager told the
agent that KSWG(FM) did not have any agreement with KBSZ(AM) to
continue sharing EAS equipment since KBSZ(AM) was sold to the
Petersons in 2001. The general manager also told the agent that
he was not aware that KSWG(FM) continued to share its EAS
equipment with KBSZ(AM) and stated he would have this practice
discontinued.
1.4. On August 19, 2005, the San Diego agent spoke with
KBSZ(AM)'s contract engineer. The engineer acknowledged that he
had advised the Petersons that EAS equipment should be installed
at the KBSZ(AM) studio. The engineer also told the agent that he
was advised by Mr. Peterson that KBSZ(AM) was sharing EAS
equipment with KSWG(FM) and that all the required EAS tests were
being received and transmitted via KSWG(FM).
1.5. A review of the Commission's records shows that
Circle S Broadcasting Company, Inc. (``Circle S'') is the
current licensee of KSWG(FM). Circle S was the licensee of
KBSZ(AM) until July 16, 1997, when the KBSZ(AM) license was
assigned to SBD Broadcasting, Inc. (``SBD'').4 On July 9, 2001,
the KBSZ(AM) license was assigned from SBD to the Petersons.5
III. DISCUSSION
1.6. Section 503(b) of the Act provides that any person
who willfully fails to comply substantially with the terms and
conditions of any license, or willfully 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.6 The term ``repeated'' means
the commission or omission of such act more than once or for
more than one day.7
1.7. 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.8 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.9 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.10 Required monthly and weekly tests originate from
EAS Local or State Primary sources and must be retransmitted by
the participating station
1.8. 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.11
1.9. Section 11.61(a)(1) and (2) 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.12 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.
Appropriate entries must be made in the broadcast station log as
specified in Sections 73.1820 and 73.1840, indicating reasons
why any tests were not received or transmitted.13
1.10. Section 11.51(j) of the Rules states that
broadcast stations that are co-owned and co-located with a
combined studio or control facility may provide EAS for the
combined stations with one EAS encoder.14 Section 11.51(j),
however, does not contemplate stations that are co-located, but
not co-owned, sharing EAS equipment.15 In the present case,
KBSZ(AM) and KSWG(FM) are not currently co-owned or co-located.
Therefore, KBSZ(AM) is required to install EAS equipment.
1.11. Since acquiring KBSZ(AM) in 2001, the Petersons
have failed to install EAS equipment at the station. Mr.
Peterson acknowledged to a San Diego agent that he had been
aware of this requirement since being advised by the station's
contract engineer after the Petersons purchased the station.
Therefore, the Petersons' violation is willful. The violation
occurred on more than one day, therefore, it is repeated. Based
on the evidence before us, we find that Richard A. & Joann R.
Peterson, Joint Tenants, apparently willfully and repeatedly
violated Section 11.35 of the Rules, by failing to ensure the
operational readiness of KBSZ(AM)'s EAS equipment.
1.12. 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
base forfeiture for EAS equipment not installed or operational
is $8,000. 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 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.''16 Applying the Forfeiture
Policy Statement, Section 1.80 and the statutory factors, we
conclude that the Petersons are apparently liable for a
forfeiture in the amount of $8,000.
IV. ORDERING CLAUSES
1.13. 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,
Richard A. & Joann R. Peterson, Joint Tenants, are hereby
NOTIFIED of their APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for violating Section
11.35 of the Commission's Rules.17
1.14. 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, Richard A. & Joann R. Peterson, Joint Tenants, SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
1.15. 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
1.16. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
San Diego Office, 4542 Ruffner Street, Suite 370, San Diego,
California 92111 and must include the NAL/Acct. No. referenced
above.
17. 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.
18. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an installment
plan should be sent to: Associate Managing Director - Financial
Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C.
20554.18
19. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT
LIABILITY shall be sent, by Certified Mail, Return Receipt
Requested to Richard A. & Joann R. Peterson, Joint Tenants, at
their address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
_________________________
147 C.F.R. § 11.35.
247 U.S.C. § 503(b).
3KSWG(FM) is now located at 801 W. Wickenburg Way, Wickenburg,
Arizona.
4See File No. BAPL-19970602GE, granted July 16, 1997.
5See File No. BAL-20010525ABU, granted July 9, 2001.
6Section 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).
7Section 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.''
847 C.F.R. §§ 11.11 and 11.41.
947 C.F.R. §§ 11.1 and 11.21.
1047 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.
1147 C.F.R. § 11.35(a) and (b).
12The 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).
1347 C.F.R. §§ 73.1820 and 73.1840.
1447 C.F.R. § 11.51(j).
15Hull Broadcasting, Inc., 19 FCC Rcd 16710 (EB 2004).
1647 U.S.C. § 503(b)(2)(D).
1747 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35.
18See 47 C.F.R. § 1.1914.