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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Charles R. Meeker ) File No. EB-02-SD-285
Licensee of Station KDPX-LP ) NAL/Acct. No.
200332940002
Cathedral City, California ) FRN 000-619-9038
)
)
FORFEITURE ORDER
Adopted: July 1, 2004 Released:
July 2, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand four hundred
($6,400) to Charles R. Meeker (``Meeker''), Licensee of Class A
Television Broadcast (``Class A'') station KDPX-LP, for willful
and repeated violation of Section 11.35 of the Commission's Rules
("Rules").1 The noted violation involves Meeker's failure to
ensure that required Emergency Alert System (``EAS'') equipment
was installed and operational.
2. On January 31, 2003, the Commission's San Diego,
California Field Office (``San Diego Office") issued a Notice of
Apparent Liability for Forfeiture ("NAL") to Meeker in the amount
of eight thousand dollars ($8,000). 2 Meeker filed a response to
the NAL on March 4, 2003.
II. BACKGROUND
3. On November 14, 2002, an agent from the Federal
Communications Commission's (``FCC'') San Diego office
attempted to conduct a routine inspection of the EAS
equipment of station KDPX-LP. The license for station
KDPX-LP had been issued to Meeker on September 10,
2001. The agent found no operational EAS equipment at
the main studio and the general manager advised that
there was no EAS equipment at KDPX-LP's transmitter
site. The general manager of KDPX-LP also advised the
agent that the station's EAS equipment was taken out of
service many months ago. However, no evidence or
documentation could be found to verify the EAS
equipment condition nor did the licensee maintain a
station log of any previous EAS tests.
4. On January 31, 2003, the San Diego Office issued the
NAL for violation of Section 11.35 of the Rules. On
March 4, 2003, Meeker submitted a response to the NAL.
In that response, Meeker does not challenge the
findings of the NAL that he willfully and repeatedly
violated Section 11.35 of the Rules. Rather, the
licensee seeks a reduction in the amount of the
proposed forfeiture based on the fact that he has made
the appropriate corrections to the station, that he has
had no other violations, that he does not have the
ability to pay the forfeiture, that the forfeiture will
have a detrimental effect on the station and that the
size of the forfeiture is disproportionate to the size
of station. The response is accompanied by an exhibit
entitled ``Deposit Detail'' along with a copy of an
arbitration decision concerning Meeker.
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),3
Section 1.80 of the Rules,4 and The Commission's
Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Forfeiture Policy Statement'').5 In
examining Meeker'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.6
6. Section 11.35 of the Rules provides that broadcast
stations are responsible for ensuring that EAS
encoders, EAS decoders, and Attention Signal generating
and receiving equipment used as a part of the EAS are
installed so that the monitoring and transmitting
functions are available during times that stations and
systems are in operation. An FCC inspection of KDPX-LP
revealed that there was no operational EAS equipment at
the main studio and the general manager advised that
there was no EAS equipment at KDPX-LP's transmitter
site. In addition, no evidence or documentation could
be found to verify the EAS equipment condition nor did
the licensee maintain a station log of any previous EAS
tests. In his response, Meeker does not challenge the
findings of the NAL that he willfully and repeatedly
violated Section 11.35 of the Rules.
7. Meeker seeks a reduction in the amount of the proposed
forfeiture arguing that he does not have the ability to
pay the forfeiture, that the forfeiture will have a
detrimental effect on the station and that the size of
the forfeiture is disproportionate to the size of
station. Meeker states that KDPX-LP had losses in
excess of its revenue in 2002 and submits a one-page
document entitled ``Deposit Detail'' to support this
claim along with copy of an arbitration decision in
Meeker's favor, unrelated to KDPX-LP, which notes that
Meeker sustained economic losses to due to an
unperformed contract.7 However, the NAL specifically
states that ``[t]he 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;
or (3) some other reliable and objective documentation
that accurately reflects the petitioner's current
financial status.''8 Meeker's submission is not
supported in this manner and, therefore, provides no
reliable basis for Meeker's claims.9 In addition,
after reviewing the financial data submitted, we find
no evidence in Meeker's response that would support a
reduction in the forfeiture based on Meeker's inability
to pay, nor do we find any evidence that the size of
the forfeiture is disproportionate to the size of the
station and would have a detrimental effect on the
station.10
8. Meeker also seeks a reduction in the amount of the
proposed forfeiture based on the fact that he has made
the appropriate corrections to the station. We note
that the Commission has repeatedly stated that remedial
actions taken to correct a violation are not mitigating
factors warranting reduction of a forfeiture.11
Finally, in support of his request for reduction,
Meeker states that he has never had an FCC action taken
against him. We have reviewed Meeker's records and we
concur.
9. Based on the findings of the NAL and Meeker's response
thereto, we find that Meeker's violation of Section
11.35 was willful 12 and repeated.13 Considering the
entire record and the factors listed above, we find
that reduction of the proposed forfeiture is warranted
because of Meeker's compliance record with the
Commission's Rules. Accordingly, the forfeiture amount
is reduced from eight thousand dollars ($8,000) to six
thousand four hundred dollars ($6,400).
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,14 Charles R. Meeker, IS LIABLE FOR A MONETARY FORFEITURE
in the amount of six thousand four hundred dollars ($6,400) for
willfully and repeatedly violating Section 11.35 of the Rules.
11. 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 shall 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 note NAL/Acct.
No. 200332940002 and FRN: 000-619-9038. Requests for full
payment under an installment plan should be sent to: Chief,
Revenue and Receivables Group, 445 12th Street, S.W., Washington,
D.C. 20554.16
12. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to Charles R. Meeker, 2225 Skyway Drive, Suite A,
Santa Maria, California, 93455.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
147 C.F.R. § 11.35.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332940002 (Enf. Bur., San Diego Office, released January 31,
2003).
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
512 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
647 U.S.C. § 503(b)(2)(D).
7The arbitration decision awards Meeker and another individual
significant damages which Meeker states in his response he has
not yet been able to collect.
8NAL at 4.
9See Hoosier Broadcasting Corporation, 15 FCC Rcd 8640, 8641
(2000).
10See Alpha Ambulance, Inc., 19 FCC Rcd 2547(2004); PJB
Communications of Virginia, 7 FCC Rcd 2088, 2089 (1992).
11See, 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).
12 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).
13As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
1447 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1547 U.S.C. § 504(a).
16See 47 C.F.R. § 1.1914.