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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
FM 92 Broadcasters, Inc. ) EB-07-DL-077
Licensee of Station KMZE ) NAL/Acct. No. 200832500002
Woodward, Oklahoma ) FRN: 0003752946
Facility ID # 21841 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 23, 2007
By the District Director, Dallas Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that FM 92 Broadcasters, Inc. ("Broadcasters"), licensee of station
KMZE, in Woodward, Oklahoma, apparently willfully and repeatedly
violated Section 11.35(a) of the Commission's Rules ("Rules") by
failing to ensure that Emergency Alert System ("EAS") equipment was
installed so that the monitoring and transmitting functions were
available during the times the station was in operation. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Broadcasters is apparently liable for a
forfeiture in the amount of eight thousand dollars ($8,000).
II. BACKGROUND
2. On May 2, 2007, an agent from the Commission's Dallas Office of the
Enforcement Bureau ("Dallas Office") inspected the main studio for
station KMZE in Woodward, Oklahoma. The agent found that Station KMZE
was sharing an EAS unit with co-located Station KWOX.
3. In response to a Letter of Inquiry dated August 14, 2007 issued by the
Dallas Office, Broadcasters stated that stations KMZE and KWOX were
not commonly owned stations. Broadcasters also stated the shared EAS
unit was owned by station KWOX and that it thought such sharing was
not in violation of the Rules. Broadcasters stated that it purchased a
separate EAS encoder for station KMZE following receipt of the Letter
of Inquiry.
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) of the Act 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. Section 11.35(a) 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. Section 11.51(l) of the Rules states that
"EAS Participants that are co-owned and co-located with a combined
studio or control facility, (such as an AM and FM licensed to the same
entity and at the same location or a cable headend serving more than
one system) may provide the EAS transmitting requirements contained in
this section for the combined stations or systems with one EAS
Encoder." Section 11.51(l) does not authorize stations that are not
co-owned to share an EAS encoder. During the inspection on May 2,
2007, station KMZE was sharing station KWOX's EAS encoder. Stations
KMZE and KWOX are co-located, but not co-owned stations. Accordingly,
on May 2, 2007, station KMZE did not have an installed EAS
encoder/decoder at its main studio. Broadcasters stated it did not
obtain an EAS decoder for station KMZE until after August 14, 2007.
6. Based on the evidence before us, we find that Broadcasters apparently
willfully and repeatedly violated Section 11.35(a) of the Rules by
failing to ensure that EAS equipment was installed during the times
the station was in operation.
7. 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. 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 of the Rules,
and the statutory factors to the instant case, we conclude that
Broadcasters is apparently liable for a $8,000 forfeiture.
IV. ORDERING CLAUSES
8. 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, FM 92 Broadcasters, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for violation of Section
11.35(a) of the Rules.
9. 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, FM 92 Broadcasters, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
10. 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.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Dallas Office,
9330 LBJ Freeway, #1170, Dallas, Texas, 75243 and must include the
NAL/Acct. No. referenced in the caption.
12. 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.
13. 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. 20554.8
14. 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 FM 92 Broadcasters, Inc. at its
address of record and to its counsel, John F. Garziglia, Womble,
Carlyle, Sandridge & Rice, 1401 Eye Street NW, Seventh Floor,
Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director,
Dallas Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 11.35(a).
47 U.S.C. S: 503(b).
Station KWOX's EAS unit was not operational, because it could not be set
to a valid date and time. In addition, it had no audio signal on two of
the three connected inputs. Station KWOX received a separate Notice of
Apparent Liability for failing to have operational EAS equipment. See Omni
Communications, Inc., Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200832500001 (Enf. Bur., Dallas Office, October 23, 2007).
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: 11.35(a).
47 C.F.R. S: 11.51(l).
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).
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission