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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of )
Caballero Television Texas, LLC )
Licensee of: )
KMMA-CA )
) File Number EB-05-LA-162
San Luis Obispo, California )
) EB-05-LA-251
Facility ID # 58616 )
) EB-05-LA-252
KQMM-CA )
) NAL/Acct. No. 200632900009
Santa Maria, California )
) FRN 0004378063
Facility ID # 18741 )
KVMM-CA )
Santa Barbara, California )
Facility ID # 18748 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 20, 2006
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 Caballero Television Texas, LLC ("Caballero"), licensee of
stations KMMA-CA, in San Luis Obispo, California, KQMM-CA, in Santa
Maria, California, and KVMM-CA, in Santa Barbara, California,
apparently willfully and repeatedly violated Section 11.35 of the
Commission's Rules ("Rules") by failing to ensure the operational
readiness of Emergency Alert System ("EAS") equipment used by KMMA-CA,
KQMM-CA, and KVMM-CA. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Caballero is
apparently liable for a forfeiture in the amount of twenty-four
thousand dollars ($24,000).
II. BACKGROUND
2. On May 6, 2005, and June 2, 2005, an agent from the Enforcement
Bureau's Los Angeles Office monitored KMMA-CA's over-the-air broadcast
for the retransmission of the EAS Required Monthly Test ("RMT"). The
agent observed that KMMA-CA failed to retransmit the RMT for the
months of May and June 2005. On September 21, 2005, the Los Angeles
Office conducted an inspection of KMMA-CA's Emergency Alert System
with KMMA-CA's contract engineer at the KMMA-CA transmitter site
located on TV Tower Road, Cuesta Peak, in San Luis Obispo, California.
The inspection revealed that the Emergency Alert System was not
operational. Specifically, the agent observed that the equipment
located at the station was not installed. The engineer informed the
agent that the equipment had been purchased in 2001 and that the
station was in the process of installing the equipment. Corroborating
the agent's finding of non-operational EAS equipment, the agent also
found that no EAS activations had been logged. Additionally, there
were no log entries indicating why any EAS tests were not received or
transmitted.
3. On September 22, 2005, the Los Angeles agent conducted inspections at
Caballero stations KQMM-CA and KVMM-CA with the stations' contract
engineer. The inspections revealed that at each station, the EAS
equipment located at the station was not installed. Corroborating the
agent's finding of non-operational EAS equipment, the agent also found
that no EAS activations had been logged at either station.
Additionally, there were no log entries indicating why any EAS tests
were not received or transmitted at either station.
III. DISCUSSION
4. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. The Rules provide that every AM, FM and TV 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. 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. 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. Required monthly and weekly tests originate from EAS Local
or State Primary sources and must be retransmitted by the
participating station
6. 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.
7. 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. 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.
8. The September 21 and 22, 2005, inspections of KMMA-CA, KQMM-CA, and
KVMM-CA revealed that none of the three stations had operational EAS
equipment installed and functioning. Additionally, there is no
evidence that the three stations had ever installed operational EAS
equipment. Further, there were no appropriate entries made in the EAS
logs at any of the stations to indicate reasons why any tests were not
received or transmitted.
9. The inspection by the Los Angeles agent revealed that each of the
stations had EAS equipment, but that none of them had installed it.
Therefore, Caballero's violations were willful. Caballeros' violations
occurred on more than one day, therefore, they were repeated. Based on
the evidence before us, we find that Caballero apparently willfully
and repeatedly violated Section 11.35 of the Rules by failing to
ensure the operational readiness of EAS equipment used by KMMA-CA,
KQMM-CA, and KVMM-CA.
10. 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 failing to ensure EAS Equipment operational
readiness 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 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.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Caballero is
apparently liable for a $8,000 forfeiture for each of the three
stations, for a total forfeiture of $24,000.
IV. ORDERING CLAUSES
11. 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, Caballero Television Texas,
LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of twenty-four thousand dollars ($24,000) for violations of
Section 11.35 of the Rules.
12. 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, Caballero Television
Texas, LLC SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Rd., Suite 660, California 90703 and must include the
NAL/Acct. No. referenced in the caption.
15. 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.
16. 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 12^th Street,
S.W., Room 1A625, Washington, D.C. 20554.
17. 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 Caballero Television Texas, LLC.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 C.F.R. S 11.35.
47 U.S.C. S 503(b).
These inspections were performed at the KQMM-CA transmitter site, located
on Tepusquet Road, Tepusquet Peak, in Santa Maria, California, and at the
KVMM-CA transmitter site, located on Cold Spring Road in Santa Barbara,
California.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
47 C.F.R. SS 11.11 and 11.41.
47 C.F.R. SS 11.1 and 11.21.
47 C.F.R. S 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.
47 C.F.R. S 11.35(a) and (b).
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, 17 FCC Rcd
4055 (2002) (effective May 16, 2002, the required monthly EAS test must be
retransmitted within 60 minutes of receipt).
47 C.F.R. SS 73.1820 and 73.1840.
Additionally, no request was sent to the District Director of the Los
Angeles District Office notifying the office of the defective equipment
and requesting additional time to repair the equipment, as required
pursuant to Section 11.35(c) of the Rules. 47 C.F.R. S 11.35(c).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 11.35.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission