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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Ely Radio, LLC ) File No. EB-FIELDWR-12-00004672
Former Licensee of Station KWNA-FM )
Facility ID # 60047 ) NOV No. V201332960004
Winnemucca, NV )
)
NOTICE OF VIOLATION
Released: November 2, 2012
By the District Director, San Francisco Office, Western Region,
Enforcement Bureau:
1. This is a Notice of Violation (Notice) issued pursuant to Section 1.89
of the Commission's rules (Rules), to Ely Radio, LLC (Ely), former
licensee of radio station KWNA-FM in Winnemucca, NV. Pursuant to
Section 1.89(a) of the Commission's Rules, issuance of this Notice
does not preclude the Enforcement Bureau from further action if
warranted, including issuing a Notice of Apparent Liability for
Forfeiture for the violations noted herein.
2. On September 10, 2012, an agent of the Enforcement Bureau's Denver
Office inspected radio station KWNA-FM located at 335 W 4th Street,
Winnemucca, NV, and observed the following violations:
a. 47 C.F.R. S: 11.35(a): "EAS Participants are responsible for ensuring
that EAS Encoders, EAS Decoders, Attention Signal generating and
receiving equipment, and Intermediate Devices used as part of the EAS
to decode and/or encode messages formatted in the EAS Protocol and/or
the Common Alerting Protocol are installed so that the monitoring and
transmitting functions are available during the times the stations
and systems are in operation. Additionally, EAS Participants must
determine the cause of any failure to receive the required tests or
activations specified in S:11.61(a)(1) and (2). Appropriate entries
indicating reasons why any tests were not received must be made in
the broadcast station log as specified in S:S:73.1820 and 73.1840 of
this chapter for all broadcast streams and cable system records as
specified in S:S:76.1700, 76.1708, and 76.1711 of this chapter. All
other EAS Participants must also keep records indicating reasons why
any tests were not received and these records must be retained for
two years, maintained at the EAS Participant's headquarters, and made
available for public inspection upon reasonable request." The station
had EAS records only from August 13, 2012, to the day of inspection
on September 10, 2012; there were no other EAS records. Aside from
these EAS records, the station had no logs documenting EAS issues or
tests.
b. 47 C.F.R. S: 11.61(a)(2)(i)(A): "Analog and digital AM, FM, and TV
broadcast stations must conduct tests of the EAS header and EOM codes
at least once a week at random days and times." The station had no
EAS records prior to August 13, 2012, and no evidence of EAS tests
preceding August 13, 2012. The EAS records from August 13, 2012, to
September 10, 2012, show that the station did not transmit the
Required Weekly Test (RWT) during the weeks of August 13, August 27,
and September 3, 2012.
c. 47 C.F.R. S: 11.21: "EAS plans contain guidelines which must be
followed by EAS Participants' personnel, emergency officials, and
National Weather Service (NWS) personnel to activate the EAS...". The
State EAS Plan requires that KWNA-FM monitor KKOH, KUNR, NWS, and
FEMA. At the time of the inspection, KWNA-FM was not monitoring KKOH.
d. 47 C.F.R. S: 73.1870(c)(3): "The chief operator is responsible
for...review of the station records once each week to determine if
required entries are being made correctly...Upon completion of the
review, the chief operator or his designee must date and sign the
log, initiate any corrective action which may be necessary, and
advise the station licensee of any condition which is repetitive."
During the inspection, the chief operator said that he had not
reviewed the EAS logs.
e. 47 C.F.R. S: 73.1943: "Every licensee shall keep and permit public
inspection of a complete and orderly record (political file) of all
requests for broadcast time made by or on behalf of a candidate for
public office, together with an appropriate notation showing the
disposition made by the licensee of such requests, and the charges
made, if any, if the request is granted." During the inspection, the
station manager said that the station had requests but no time was
purchased by a political candidate. The station manager said that the
station did not keep and could not provide records of these requests.
f. 47 C.F.R. S: 73.3526(e)(1): "Authorization. A copy of the current FCC
authorization to construct or operate the station, as well as any
other documents necessary to reflect any modifications thereto or any
conditions that the FCC has placed on the authorization. These
materials shall be retained until replaced by a new authorization, at
which time a copy of the new authorization and any related materials
shall be placed in the file." At the time of the inspection, the
station did not have or could not find a copy of the station
authorization.
g. 47 C.F.R. S: 73.3526(e)(5): "Ownership reports and related materials.
A copy of the most recent, complete ownership report filed with the
FCC for the station, together with any subsequent statement filed
with the FCC certifying that the current report is accurate, and
together with all related material. These materials shall be retained
until a new, complete ownership report is filed with the FCC, at
which time a copy of the new report and any related materials shall
be placed in the file." The station did not have the most recent
ownership report.
h. 47 C.F.R. S: 73.3526(e)(12): "Issues/Programs lists. For commercial
AM and FM broadcast stations, every three months a list of programs
that have provided the station's most significant treatment of
community issues during the preceding three month period. The list
for each calendar quarter is to be filed by the tenth day of the
succeeding calendar quarter (e.g., January 10 for the quarter
October-December, April 10 for the quarter January-March, etc.). The
list shall include a brief narrative describing what issues were
given significant treatment and the programming that provided this
treatment. The description of the programs shall include, but shall
not be limited to, the time, date, duration, and title of each
program in which the issue was treated. The lists described in this
paragraph shall be retained in the public inspection file until final
action has been taken on the station's next license renewal
application." The station did not have any issues/programs lists in
its public inspection file.
3. As the nation's emergency warning system, the Emergency Alert System
is critical to public safety, and we recognize the vital role that
broadcasters play in ensuring its success. The Commission takes
seriously any violations of the Rules implementing the EAS and expects
full compliance from its regulatees.
4. Pursuant to Section 308(b) of the Communications Act of 1934, as
amended, and Section 1.89 of the Rules, we seek additional information
concerning the violations and any remedial actions taken. Therefore,
Ely must submit a written statement concerning this matter within
twenty (20) days of release of this Notice. The response (i) must
fully explain each violation, including all relevant surrounding facts
and circumstances, (ii) must contain a statement of the specific
action(s) taken to correct each violation and preclude recurrence, and
(iii) must include a time line for completion of any pending
corrective action(s). The response must be complete in itself and must
not be abbreviated by reference to other communications or answers to
other notices.
5. In accordance with Section 1.16 of the Rules, we direct Ely to support
its response to this Notice with an affidavit or declaration under
penalty of perjury, signed and dated by an authorized officer of Ely
with personal knowledge of the representations provided in the Ely
response, verifying the truth and accuracy of the information therein,
and confirming that all of the information requested by this Notice
which is in the licensee's possession, custody, control, or knowledge
has been produced. To knowingly and willfully make any false statement
or conceal any material fact in reply to this Notice is punishable by
fine or imprisonment under Title 18 of the U.S. Code.
6. All replies and documentation sent in response to this Notice should
be marked with the File No. and NOV No. specified above, and mailed to
the following address:
Federal Communications Commission
San Francisco Office
5653 Stoneridge Dr., Suite 105
Pleasanton, CA 94588
7. This Notice shall be sent to Ely Radio, LLC at its address of record.
8. The Privacy Act of 1974 requires that we advise you that the
Commission will use all relevant material information before it,
including any information disclosed in your reply, to determine what,
if any, enforcement action is required to ensure compliance.
FEDERAL COMMUNICATIONS COMMISSION
David K. Hartshorn
District Director
San Francisco Office
Western Region
Enforcement Bureau
47 C.F.R. S: 1.89.
47 C.F.R. S: 1.89(a).
47 U.S.C. S: 308(b).
47 C.F.R. S: 1.89(c).
Section 1.16 of the Rules provides that "[a]ny document to be filed with
the Federal Communications Commission and which is required by any law,
rule or other regulation of the United States to be supported, evidenced,
established or proved by a written sworn declaration, verification,
certificate, statement, oath or affidavit by the person making the same,
may be supported, evidenced, established or proved by the unsworn
declaration, certification, verification, or statement in writing of such
person . . . . Such declaration shall be subscribed by the declarant as
true under penalty of perjury, and dated, in substantially the following
form . . . : `I declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct. Executed on (date).
(Signature)'." 47 C.F.R. S: 1.16.
18 U.S.C. S: 1001 et seq. See also 47 C.F.R. S: 1.17.
P.L. 93-579, 5 U.S.C. S: 552a(e)(3).
Federal Communications Commission
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Federal Communications Commission