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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-99-DV-446
)
FM Broadcast Station KNEC ) NAL/Acct. No.
915DV0001
Arnold Broadcasting Company, Inc. )
Sterling, Colorado 80751 )
MEMORANDUM OPINION AND ORDER
Adopted: June 28, 2001 Released: July 5, 2001
By the Commission:
1. In this Order, we grant in part and deny in part the
January 31, 2001 application for review filed by Arnold
Broadcasting Company, Inc. ("Arnold"), licensee of Station KNEC-
FM, of the Memorandum Opinion and Order1 issued by the
Enforcement Bureau in this proceeding. Pursuant to Section
503(b) of the Communications Act of 1934, as amended (``the
Act'')2, and Section 1.80 of the Commission's Rules (``the
Rules'') the Enforcement Bureau ("EB") found Arnold liable for a
monetary forfeiture in the amount of $14,000 for willful
violation of the following sections of the Rules: 11.35 (failure
to install and maintain operable Emergency Alert System (``EAS'')
equipment), 73.1350 (failure to have a transmitter control system
in place which would allow the transmitter to be shut down within
three minutes of an event requiring shut down), 73.1820 (failure
to make required entries into the station log), and 73.18703
(failure to designate and post the designation of a chief
operator for the station). For the reasons discussed below, we
reduce the forfeiture to $10,000.
BACKGROUND
2. On May 19, 1999, agents of the Commission's Denver
Field Office ("Denver Office") conducted a routine inspection of
FM broadcast station KNEC. The agents found several violations,
including those noted above. On June 7, 1999, the District
Director of the Denver Office issued a Notice of Apparent
Liability ("NAL") to Arnold in the amount of $16,000 for
violations of Sections 11.35, 11.61,
17.4, 73.1225, 73.1350. 73.1820, and 73.1870 of the Rules.4 On
February 9, 2000, after receiving a response from the licensee,
the Enforcement Bureau issued a Forfeiture Order5 which upheld
the NAL.
3. On February 24, 2000, Arnold filed a Petition for
Reconsideration (``Petition'') of the Forfeiture Order. In its
Petition, Arnold argued that the forfeiture amount should be
substantially reduced. In the Memorandum Opinion and Order,
released on January 5, 2001, the Enforcement Bureau reduced the
forfeiture by $2,000 to $14,000 for Arnold's good faith effort to
comply with the EAS rules by ordering EAS equipment.6 In all
other respects, the Bureau upheld the forfeiture.
4. On January 31, 2001, Arnold filed an application for
review of the Memorandum Opinion and Order. In its application
for review, Arnold again contends that the forfeiture should be
set aside or the amount modified. In support of its contention,
Arnold argues that (a) the forfeiture amount assessed for the
failure to install and maintain operable EAS equipment is
excessive; (b) the Commission impermissibly assessed separate
forfeitures for not conducting EAS tests and not logging the EAS
tests that it had not conducted; and (c) the forfeiture amount
assessed for KNEC's failure to maintain the capability to shut
down the transmitter within three minutes of an event requiring
shutdown is excessive.
DISCUSSION
The Section 11.35 Violation
5. Section 11.35 of the Rules requires broadcast stations
to have the necessary EAS equipment installed so that monitoring
and transmitting functions are available during the times the
station and systems are in operation. When Arnold began
broadcast operations on April 12, 1999, it did not have the
requisite EAS equipment installed and operational, in violation
of Section 11.35. As a result, the Bureau assessed Arnold a
total forfeiture of $10,000, which included the $8,000 base
amount for this violation7 and a $2,000 upward adjustment. The
Bureau imposed the upward adjustment because it deemed the
violation to be particularly egregious, given that the principal
of Arnold, Mr. William Arnold, had once served as a Local
Emergency Communications Committee ("LECC") chairman. In its
application for review, Arnold contends that it is contrary to
the public interest to impose a forfeiture on a broadcaster for
putting his station on the air before timely ordered EAS
equipment has been delivered. We do not agree. The Rules are
clear that EAS equipment must be installed and operational before
broadcast operations begin. We believe that it is in the public
interest to have broadcasters adhere to the Commission's EAS
rules.8 Arnold also asserts that the Bureau imposed the
forfeiture for the EAS violation because Arnold failed to request
a waiver of the EAS rules and not because operating KNEC without
EAS equipment is a serious violation. Although Arnold further
opines that it would most certainly have been granted a waiver of
Section 11.35 had it sought one, the fact remains that Arnold did
not seek, let alone obtain, a waiver. Similarly, the fact that
Arnold might have obtained Special Temporary Authority (``STA'')
to operate without EAS equipment is irrelevant, as it did not
seek, let alone obtain, such authority.
6. Arnold also takes issue with the $2,000 upward
adjustment to the $8,000 base forfeiture amount for the Section
11.35 EAS violation. The Bureau based the upward adjustment upon
the egregiousness of the violation, given Mr. Arnold's prior
service as a LECC chairman. Arnold contends that it is contrary
to the Commission's Forfeiture Policy Statement to upwardly
adjust the forfeiture amount for this reason. We agree that an
upward adjustment for this violation is unwarranted in this case.
Accordingly, we will eliminate the $2,000 upward adjustment and
reduce the total amount assessed for this violation to $8,000.
The Section 73.1350(b) Violation
7. The Bureau assessed Arnold a total $4,000 forfeiture
for the Section 73.1350(b) violation (failure to have a
transmitter control system in place which would allow the
transmitter to be shut down within three minutes of an event
requiring shut down), which included the $3,000 base amount for
this violation and a $1,000 upward adjustment. The Bureau
adjusted the forfeiture amount upward by $1,000 because it
considered the violation to be particularly egregious given the
potential for causing interference to other licensed stations
should KNEC begin operating outside its authorized limits with no
way of turning the transmitter off within three minutes in
accordance with the Rules. Arnold claims that the imposition of
a forfeiture for this violation of Section 73.1350(b) is contrary
to established Commission policy and inconsistent with other
recent enforcement actions. In support, Arnold asserts that 34
days after the staff issued the NAL for KNEC's violation of
Section 73.1350(b), the Denver Office issued a Notice of
Violation to Arnold for Station KFTM's violation of Section
73.1350(d) of the Rules, a rule which Arnold believes to be
similar in purpose to Section 73.1350(b).9 In the case of KFTM,
however, the Commission took no further enforcement action once
the violation was corrected.
8. The obligations imposed on licensees by Sections
73.1350(b) and 73.1350(d) are both important components of the
regulatory scheme that ensures interference free broadcasting.
However, the type of potential problem that Section 73.1350(b)
contemplates is inherently more urgent than the type of problem
addressed by Section 73.1350(d). Specifically, Section
73.1350(b) contemplates those circumstances in which a
transmitter is so seriously malfunctioning that the Commission
identifies it as causing harmful or catastrophic loss of
telecommunications service. Such circumstances are deemed so
critical that a broadcaster must be able to cease broadcasting
within three minutes. Section 73.1350(d), on the other hand,
contemplates a situation that results in incremental degradation
of service, not complete disruption of service. In these less
urgent circumstances, the broadcaster has greater latitude in
addressing the problem; i.e., the rule permits a correction
period of up to three hours. Given the grave nature of the
potential problems Section 73.1350(b) seeks to avoid, we conclude
that the staff properly exercised its discretion in issuing a
forfeiture to KNEC for its violation of the rule. Further, we
find no inconsistency in that action and the subsequent decision
to issue only a Notice of Violation to KFTM for its violation of
Section 73.1350(d).
9. Arnold also argues, however, that all violations of the
transmitter control rules carry with them the potential for
interference, and therefore, this potential is taken into account
in the base forfeiture amount for transmitter control violations.
For this reason, Arnold believes that the $1,000 upward
adjustment imposed for violating this rule should be set aside
absent a finding that Arnold's violation of the rule was, in some
way, more egregious than a routine failure to comply with the
rule. We agree. Accordingly, based upon the facts of this case,
an upward adjustment to the base forfeiture amount for this
violation is not warranted.
The Section 73.1820 Violation
10. The Enforcement Bureau's Forfeiture Order included a
$1,000 forfeiture amount for willfully violating Section
73.1820(a) of the Rules, which requires entry into the station
log of each test and activation of the EAS and any entries not
specifically required by Section 73.1820(a), but required by the
instrument of authorization or elsewhere in Part 73 of the Rules.
Arnold argues that although the Enforcement Bureau claims in the
reconsideration MO&O that it did not assess a separate forfeiture
for Arnold's failure to log the EAS tests that it did not conduct
and could not have conducted because it lacked the necessary EAS
equipment, this is not correct. Arnold points out that the
reconsideration MO&O states that it was fined $1,000 for
violating Section 73.1820 and that the original Forfeiture Order
states that Arnold violated Section 73.1820(a) by "failing to
make ... EAS logs available to FCC representatives upon request."
Arnold further asserts that no other violation of Section 73.1820
is cited in either Order, therefore, the $1,000 forfeiture for
violating Section 73.1820 can only be attributed to the fact that
Arnold failed to log the EAS tests that it did not conduct.
After reviewing the record, we conclude that it does not support
imposition of a monetary forfeiture for violation of Section
73.1820(a) of the Rules. Accordingly, we reduce the total
forfeiture amount by $1,000.
ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
1.115(c) of the Rules, 47 C.F.R. § 1.115(c), Arnold Broadcasting
Company, Inc.'s application for review of the Memorandum Opinion
and Order for NAL No. 915DV0001 IS GRANTED IN PART AND DENIED IN
PART.
12. IT IS FURTHER ORDERED that, pursuant to Section 503(b)
of the Act, 47 U.S.C. § 503(b), and Section 1.80 of the Rules, 47
C.F.R. § 1.80, Arnold Broadcasting Company, Inc. must pay the
amount of ten thousand dollars ($10,000) within thirty (30) days
of the release date of this Order. Payment may be made by check
or money order, drawn on a U.S. financial institution, payable to
the Federal Communications Commission.10 The remittance should
be marked ``NAL Acct. No. 915DV0001'' and mailed to the following
address:
Federal Communications Commission
P.O. Box 73482
Chicago, Illinois 60673?7482
Forfeiture penalties not paid within 30 days may be referred to
the U.S. Attorney for recovery in a civil suit. 47 U.S.C. §
504(a).
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail, return?receipt requested, to Arnold
Broadcasting Company, Inc., P.O. Box 830, 803 West Main,
Sterling, Colorado 80751 and to its counsel David Tillotson,
Esq., 4606 Charleston Terrace, N.W., Washington, DC 20007-1911.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 Arnold Broadcasting Company, Inc., 16 FCC Rcd 267 (Enf.
Bur. 2001).
2 47 U.S.C. § 503(b).
3 47 C.F.R. §§ 1.80, 11.35, 73.1350, 73.1820, 73.1870.
4
Although the Enforcement Bureau determined that Arnold
violated all of the aforementioned sections of the Rules, it held
Arnold liable only for violating Sections 11.35, 73.1350,
73.1820, and 73.1870, and issued a $16,000 forfeiture for
violating only those sections.
5 Arnold Broadcasting Company, Inc., 15 FCC Rcd 2704 (Enf.
Bur. 2000).
6 The EAS equipment did not arrive before Arnold went on the
air. Arnold proceeded to broadcast without the equipment and
without obtaining a waiver.
7 The Commission's Forfeiture Policy Statement and Amendment
to Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 13 FCC Rcd
303 (1999) ("Forfeiture Policy Statement").
8 Section 11.35(a) provides that broadcast stations ... are
responsible for ensuring that EAS Encoders, EAS Decoders and
Attention Signal generating and receiving equipment used as part
of the EAS are installed so that the monitoring and transmitting
functions are available during the times the stations and systems
are in operation.
9
Section 73.1350(d) provides that:
In the event that a broadcast station is
operating in a manner that is not in
compliance with the technical rules set forth
elsewhere in this part or the terms of the
station authorization, and the condition is
not listed in paragraph (e) of this section,
broadcast operation must be terminated within
three hours.
10
Payment of the forfeiture in installments may be considered
as a separate matter in accordance with Section 1.1914 of the
Rules, 47 C.F.R. § 1.1914. Requests for installment plans should
be mailed to: Chief, Revenue & Receivables Operations Group, 445
Twelfth Street, S.W., Washington, DC 20554.