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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Jean J. Suh d/b/a Radio Hankook ) File No. EB-01-ST-091
) NAL/Acct. No. 200232980001
Licensee of Station KSUH(AM) ) FRN 0006-1414-02
Puyallup, Washington )
)
and )
)
Licensee of Station KWYZ(AM) )
Everett, Washington )
FORFEITURE ORDER
Adopted: August 27, 2003 Released: August 29,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to Jean J. Suh d/b/a Radio Hankook (``Ms. Suh''),1
licensee of Station KSUH(AM), Puyallup, Washington, and
Station KWYZ(AM), Everett, Washington, for willful violation
of Sections 11.35(a), 11.61 and 17.4(g) of the Commission's
Rules (``Rules'').2 The noted violations involve Ms. Suh's
failure to have operational Emergency Alert System (``EAS'')
equipment, failure to conduct required weekly and monthly EAS
tests, and failure to post the Antenna Structure Registration
number so that it is readily visible on or near the base of
the KWYZ tower.
2. On August 28, 2002, the Commission's Seattle,
Washington Field Office (``Seattle Office'') issued a Notice
of Apparent Liability for Forfeiture (``NAL'') to Ms. Suh for
a forfeiture in the amount of twenty two thousand dollars
($22,000).3 Ms. Suh filed a response to the NAL on September
27, 2002, and supplemented her response on October 25, 2002.
II. BACKGROUND
3. On March 29, 2001, in response to a complaint alleging
violations of Commission rules at KSUH, agents from the
Seattle Office inspected the KSUH transmitter site and
attempted to inspect the KSUH studio. The agents observed
that there was no ASR number posted on or near the base of the
KSUH antenna structure and that the paint on the structure was
peeling and faded. Due to language barriers with KSUH staff,4
the agents postponed the inspection of the studio. On April
27, 2001, the agents again attempted to inspect the KSUH
studio, but found that the station was in the process of
relocating its studio. The agents discussed the EAS
requirements with Ms. Suh and provided her a copy of the AM
Broadcast Station Self-Inspection checklist, but did not
attempt an inspection of the studio at that time.
4. On May 3, 2001, agents from the Seattle Office
inspected the KWYZ transmitter site. The agents observed that
there was no ASR number posted on or near the base of the KWYZ
antenna structure.
5. On November 30, 2001, the agents re-inspected the KSUH
and KWYZ transmitter sites and observed that there were still
no ASR numbers posted on or near the base of the towers and
that the paint on the KSUH tower was still peeling and faded.
The agents then inspected the new co-located KSUH/KWYZ studio.
The agents observed that EAS equipment was installed at the
studio, but the equipment was not operable. The equipment was
set in manual mode, requiring operator interface to conduct
any EAS test or alert. However, the operator on duty at the
time of the inspection was unable to operate the equipment.
In addition, no tape to record EAS tests was installed in the
equipment and there were no logs to show that monthly and
weekly EAS tests had been received or retransmitted at any
time during the past year.
6. On January 22, 2002, the Seattle Office issued a
Notice of Violation (``NOV'') citing Ms. Suh for, among other
violations, failure to maintain operational EAS equipment and
to conduct required monthly and weekly EAS tests, failure to
post the ASR numbers on or near the base of the KSUH and KWYZ
towers, and failure to clean or repaint the KSUH tower as
often as necessary to maintain good visibility of the tower in
violation of Sections 11.35(a), 11.61, 17.4(g) and 17.50 of
the Rules.5 In her response to the NOV, Ms. Suh stated that
the EAS equipment had been modified to facilitate automatic
retransmission of EAS tests and alerts, that an EAS log had
been established, and that the ASR numbers had been posted at
the towers. Ms. Suh also stated that she had received an
estimate to paint the KSUH tower, but indicated that she does
not own the tower and was trying to get financial help to
paint the tower. An agent from the Seattle Office
subsequently checked the Commission's ASR database and found
that the ASRs for the KSUH and KWYZ towers list Jean J. Suh
d/b/a Radio Hankook as the owner of the towers.
7. On August 28, 2002, the Seattle Office issued an NAL
for a $22,000 forfeiture to Ms. Suh for failure to maintain
operational EAS equipment and to conduct required monthly and
weekly EAS tests, failure to post the ASR numbers on or near
the base of the KSUH and KWYZ towers, and failure to clean or
repaint the KSUH tower as often as necessary to maintain good
visibility of the tower in willful violation of Sections
11.35(a), 11.61, 17.4(g) and 17.50 of the Rules.6 Ms. Suh
filed a response to the NAL on September 27, 2002, and
supplemented her response on October 25, 2002. Ms. Suh states
that she is a Korean American and English is her second
language, but despite the language barrier she has worked
diligently to operate KSUH and KWYZ in compliance with the
Commission's rules. With respect to the EAS violations, Ms.
Suh states that after receipt of the NOV, the EAS equipment
was modified to facilitate automatic retransmission of EAS
tests and alerts. However, the EAS equipment subsequently
failed to operate correctly so new equipment was purchased and
installed. Ms. Suh states that the new EAS unit is set to
operate automatically, so no operator interface is required to
conduct or log EAS tests. Ms. Suh also states that the ASR
numbers have been posted on the KSUH and KWYZ towers. Ms. Suh
disputes the finding in the NAL that the KSUH tower requires
painting to maintain good visibility. Furthermore, Ms. Suh
states that she is not the owner of the KSUH tower. In this
regard, she states that she previously believed that she owned
this tower and therefore registered the tower in her name.
However, Ms. Suh asserts that the KSUH tower is in fact owned
by Ray Courtemanche and Cheri Patch, who lease the tower site
and tower to her. In support of this assertion, Ms. Suh
provides a copy of a lease agreement for the tower site and
tower between Joy Broadcasting, Inc. (``Joy''), the
predecessor licensee of KSUH, and Mr. Courtemanche and Ms.
Patch. Ms. Suh states that Joy assigned its rights under the
lease agreement to her when she purchased the station, that
the term of the lease has expired and she has been renting
both the tower site and the tower on a month-to-month basis,
and that she is currently in negotiations to purchase the
tower site and tower or execute a long-term lease. Ms. Suh
asserts if she is able to acquire the KSUH tower, she will
make arrangements to have the tower painted. Finally, Ms. Suh
claims that payment of the proposed forfeiture would impose a
financial hardship on the stations and provides the stations'
tax returns for 1998 through 2001 in support of this claim.
Ms. Suh accordingly requests that the forfeiture be canceled
or reduced to no more than $3,000.
III. DISCUSSION
8. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended, (``Act''),7 Section
1.80 of the Rules,8 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Policy
Statement''). In examining Suh's response, Section 503(b) of
the Act requires that the Commission take into account the
nature, circumstances, extent and gravity of the violation
and, with respect to the violator, the degree of culpability,
any history of prior offenses, ability to pay, and other such
matters as justice may require.9
9. Section 11.35(a) of the Rules requires broadcast
stations to install and maintain operational EAS equipment so
that monitoring and transmitting functions are available
during the times when the station is in operation. Ms. Suh
does not dispute that the stations' EAS equipment was not
operational at the time of the inspection or that the stations
had not conducted required monthly and weekly EAS tests.
Accordingly, we conclude that Ms. Suh willfully10 violated
Sections 11.35(a) and 11.61 of the Rules.
10. Section 17.4(g) of the Rules requires that the ASR
number be posted in a conspicuous location so that it is
readily visible near the base of the antenna structure.
Section 17.50 of the Rules provides that antenna structures
which are required to be painted must be cleaned or repainted
as often as necessary to maintain good visibility. The
information provided by Ms. Suh indicates that although she is
listed as the owner of the KSUH tower on the tower's ASR, she
is not in fact the owner of that tower. Accordingly, we will
cancel the $2,000 forfeiture proposed in the NAL for failure
to post the ASR number at the KSUH tower and the $10,000
forfeiture proposed in the NAL for failure to clean or repaint
the KSUH tower as often as necessary to maintain good
visibility.11 However, Ms. Suh does not dispute that she is
the owner of the KWYZ tower or that she had not posted the ASR
number at this tower at the time of the inspection. We
therefore find that Ms. Suh willfully violated Section 17.4(g)
by failing to post the ASR number at the KWYZ tower.
11. Ms. Suh asserts that new EAS equipment has been
installed at the station and that the ASR number has been
posted at the KWYZ tower. However, the Commission has
repeatedly stated that remedial efforts to correct a violation
are not mitigating factors warranting reduction of a
forfeiture.12
12. Ms. Suh also asserts that payment of the proposed
forfeiture would impose a financial hardship on the stations
and submits the stations' tax returns for 1998 through 2001 in
support of this assertion. The Commission has repeatedly held
that a company's gross revenues are the best indicator of its
ability to pay a forfeiture.13 After considering the
financial information submitted by Ms. Suh, we conclude that
the stations' gross revenues are sufficient to enable it to
pay a $10,000 forfeiture.
13. We have examined Ms. Suh's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Ms. Suh failed to maintain operational EAS
equipment at the stations and failed to post the ASR number at
the KWYZ tower in willful violation of Sections 11.35(a) and
17.4(g) of the Rules, and we find no basis for canceling or
reducing the forfeitures proposed in the NAL for these
violations. However, we cancel the $2,000 forfeiture proposed
in the NAL for failure to post the ASR number at the KSUH
tower and the $10,000 forfeiture proposed in the NAL for
failure to clean or repaint the KSUH tower as often as
necessary to maintain good visibility. Accordingly, we reduce
the total forfeiture amount from $22,000 to $10,000.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,14 Jean J. Suh d/b/a Radio Hankook IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for willful violations of Sections 11.35(a), 11.61
and 17.4(g) of the Rules.
15. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.15 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232980001 and FRN
0006-1414-02. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.16
16. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to Jean J. Suh d/b/a Radio Hankook, 807 South 336th
Street, Federal Way, Washington 98030, and to her counsel,
Matthew H. McCormick, Esq., Reddy, Begley & McCormick, LLP,
2174 K Street, N.W., Suite 350, Washington, D.C. 20037-1845.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 On November 15, 2002, the Commission's Media Bureau granted
short-form applications (FCC Form 316) to assign the licenses for
KSUH(AM) and KWYZ(AM) from Jean J. Suh to Radio Hankook, Inc.
File Nos. BAL-20021023AAO and BAL-20021023AAP. These assignments
were consummated on December 1, 2002. For convenience, we will
continue to refer to the licensee as Ms. Suh.
2 47 C.F.R. §§ 11.35(a), 11.61 and 17.4(g).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232980001 (Enf. Bur., Seattle Office, released August 28,
2002).
4 KSUH is a Korean language station.
5 47 C.F.R. § 17.50.
6 The NAL calculated the $22,000 forfeiture as follows:
$8,000 for failure to maintain operational EAS equipment, $2,000
for failure to post the ASR number on the KSUH tower, $2,000 for
failure to post the ASR number on the KWYZ tower, and $10,000 for
failure to repaint the KSUH tower as often as necessary to
maintain good visibility of the tower. The NAL did not propose a
separate forfeiture for failure to conduct required monthly and
weekly EAS tests as the amount for that violation is subsumed
under the failure to maintain operational EAS equipment
violation.
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
10 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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).
11 The owner of an antenna structure is primarily responsible
for maintaining the structure in accordance with Part 17 of the
Rules. Although tenant licensees on a tower may be required to
undertake efforts to maintain the tower in the event that the
owner is unable to do so, e.g., in cases of abandonment,
negligence, or bankruptcy, under normal circumstances, the
Commission only looks to the owner to maintain the tower. See
Streamlining the Commission's Antenna Structure Clearance
Procedure and Revision of Part 17 of the Commission's Rules
Concerning Construction, Marking and Lighting of Antenna
Structures, 11 FCC Rcd 4272, 4294 (1995).
12 See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
13 See Long Distance Direct, Inc., 15 FCC Rcd 3297, 3305
(2000); PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1991). The Commission has also stated that if gross
revenues are sufficiently great, the existence of operating
losses does not by itself mean that a company cannot afford to
pay a forfeiture. Id.
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.