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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Action Radio, LLC
) File Number: EB-07-PO-083
Licensee of Stations KZZR(AM) and
KQHC-FM ) NAL/Acct. No.: 200732920005
Burns, Oregon ) FRN: 0013304258
Facility ID Numbers 62265 and 62264 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 14, 2007
By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Action Radio, LLC ("Action Radio"), licensee of broadcast
stations KZZR(AM) and KQHC-FM, in Burns, Oregon, apparently willfully
and repeatedly violated Section 11.35(a) of the Commission's Rules
("Rules") by failing to ensure the operational readiness of the
KZZR(AM) and KQHC-FM Emergency Alert System ("EAS") equipment. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Action Radio is apparently liable for a
forfeiture in the amount of eight thousand dollars ($8,000).
II. BACKGROUND
2. On July 26, 2007, in response to a complaint, an agent of the
Enforcement Bureau's Portland Resident Agent Office inspected the EAS
equipment installed at KZZR(AM) and KQHC-FM's studio in Burns, Oregon.
The inspection revealed that the KZZR(AM) and KQHC-FM EAS
encoder/decoder, model Sage, was not operational and that the date
stamp was reset to a default year of 1995. The agent reviewed the
KZZR(AM) and KQHC-FM EAS logs and observed that the last EAS entry was
a Required Weekly Test transmitted on July 24, 2006. In response to
questions from the Portland agent, the Action Radio general manager
and assistant general manager acknowledged that KZZR(AM) and KQHC-FM
had not conducted any EAS Tests or alerts for "over a year" because of
the non-operational 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. 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.
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. 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
5. 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.
6. Section 11.52(d) of the Rules requires broadcast stations to monitor
at least two EAS sources. The monitoring assignments of each broadcast
station are specified in the State EAS Plan and FCC Mapbook. The
requirement that stations monitor at least two EAS sources ensures
redundancy of the EAS system in the event one of the sources fails.
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. On July 26, 2007, the inspection and investigation by the Portland
agent revealed that the EAS equipment for KZZR(AM) and KQHC-FM was not
operational because it was not capable of receiving tests and alerts
from the EAS Local Primary stations and, based on statements by Action
Radio personnel, this failed condition had persisted for over a year.
Additionally, Action Radio failed to document in the EAS logs the
functionality of the EAS equipment. Action Radio personnel were aware
of this non-operational EAS equipment, but did not act to correct it
until the stations were inspected by the Portland agent. Therefore, we
find that Action Radio's violation was willful. Action Radio's
violation occurred on more than one day; therefore, the violation was
repeated. Based on the evidence before us, we find that Action Radio
willfully and repeatedly violated Section 11.35(a) of the Rules by
failing to ensure the operational readiness of the EAS equipment at
KZZR(AM) and KQHC-FM.
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 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)(E) 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 Action Radio is apparently liable for an $8,000
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, Action Radio, LLC, is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
eight thousand dollars ($8,000) for violations of Section 11.35(a) of
the Rules.
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, Action Radio, LLC, 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, Western Region, Portland Resident
Agent Office, P.O. Box 61469, Vancouver, Washington 98666-1469, 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:
Associate Managing Director - Financial Operations, Room 1A625, 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 Action Radio, LLC.
FEDERAL COMMUNICATIONS COMMISSION
Binh Nguyen
Resident Agent
Portland Resident Agent Office
Western Region
Enforcement Bureau
47 C.F.R. S: 11.35(a).
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. S:S: 11.11 and 11.41.
47 C.F.R. S:S: 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).
47 C.F.R. S: 11.52(d).
47 C.F.R. S: 11.61. 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. S:S: 73.1820 and 73.1840.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
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Federal Communications Commission
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Federal Communications Commission