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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
One Mart Corporation ) File No. EB-06-SD-210
Licensee of Station KEVT ) NAL/Acct. No. 200732940004
Cortaro, AZ ) FRN: 0007290406
Facility ID #13969 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 28, 2006
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that One Mart Corporation ("One Mart "), the licensee of AM Broadcast
Radio station KEVT in Cortaro, Arizona, apparently willfully and
repeatedly violated Section 11.35 of the Commission's Rules
("Rules"), by failing to ensure the operational readiness of KEVT's
Emergency Alert System ("EAS") equipment. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that One Mart is apparently liable for a forfeiture in the amount of
eight thousand dollars ($8,000).
II. BACKGROUND
1. On August 17, 2006, an agent from the Enforcement Bureau's San Diego
Office conducted an inspection at the main studio of KEVT located at
2919 E. Broadway, Suite 203, Tucson, Arizona, accompanied by the KEVT
chief engineer. Although EAS equipment was installed, the agent found
that it was not operating properly at the time of inspection. The San
Diego agent found that the EAS equipment was capable of transmitting
a required weekly test ("RWT"). However, a review of the EAS logs and
printouts generated by the EAS Encoder/Decoder indicated that from
November 2005 through August 2006, no required monthly tests ("RMTs")
were received or retransmitted from the first and second local
primary stations ("LP-1" and "LP-2") and that no RWTs had been
received from the LP-2 since June of 2005. The EAS logs also
indicated that numerous RWTs were not transmitted in 2006. Only three
RWTs were sent during the 15 week period from April 30 - August 12,
2006. No entries were made by the KEVT staff in the EAS log to
identify the causes of these failures or what steps were taken to
remedy them. On the date of inspection, the San Diego agent requested
that the LP-1 and LP-2 both transmit RWTs. Neither RWT could be heard
through the KEVT EAS equipment and there was no indication that the
KEVT EAS equipment received either RWT. The KEVT EAS equipment did
not produce any EAS printout to indicate the RWTs from the LP
stations had been received. The chief engineer acknowledged to the
San Diego agent that the KEVT EAS equipment may have been having
technical problems.
2. On August 29, 2006, the San Diego agent spoke with the KEVT chief
engineer and the chief engineer advised that One Mart would be
replacing the KEVT EAS equipment. The KEVT chief engineer indicated
that he was in the process of obtaining cost estimates from various
EAS vendors.
III. DISCUSSION
1. 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. The term
"repeated" means the commission or omission of such act more than
once or for more than one day.
2. 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. 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
3. 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.
4. 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.
5. A review of the KEVT station log for November 2005 through August 17,
2006, revealed that the KEVT EAS equipment was not operating
properly. KEVT did not receive or transmit any RMTs from either the
LP-1 or the LP-2 station during this period. There was no record to
indicate what was done to remedy this problem during this same
period. KEVT's records also indicate that KEVT was not transmitting
RWTs on a weekly basis. Only three RWTs were sent during the 15 week
period from April 30 - August 12, 2006. There were no appropriate
entries made in the EAS log to indicate reasons why tests were not
received or transmitted. During the inspection by the San Diego
agent, the LP-1 and LP-2 were both asked to transmit a RWT. The KEVT
EAS equipment failed to receive either RWT. Additionally, the KEVT
chief engineer acknowledged to the San Diego agent that the KEVT EAS
equipment may be having technical problems.
6. One Mart failed to properly review station logs to detect any EAS
equipment failures, therefore, its violation is willful. One Mart
failed to maintain the EAS equipment installed at KEVT for a period
of over nine months and, consequently, numerous RMTs and RWTs were
not received or transmitted. Therefore, One Mart's violation is
repeated. Based on the evidence before us, we find that One Mart
apparently willfully and repeatedly violated Section 11.35 of the
Rules, by failing to ensure the operational readiness of the EAS
equipment at KEVT.
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(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." Applying the Forfeiture Policy Statement,
Section 1.80 and the statutory factors, we conclude that One Mart
Corporation is apparently liable for a forfeiture in the amount of
$8,000.
IV. ORDERING CLAUSES
1. 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, One Mart Corporation is 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.
2. 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, One Mart Corporation,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
3. 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.
4. 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.
5. 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.
6. 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, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
7. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY shall be
sent, by Certified Mail, Return Receipt Requested to One Mart
Corporation, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
47 C.F.R. S 11.35.
47 U.S.C. S 503(b).
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).
47 C.F.R. SS 73.1820 and 73.1840.
Additionally, no request was sent to the District Director of the San
Diego 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).
47 C.F.R. S 503(b)(2)(d).
47 U.S.C. S 503(b), 47C.F.R. SS 0.111, 0.311, 1.80, 11.35.
See 47 C.F.R. S 1.1914.
Federal Communications Commission
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Federal Communications Commission