Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Desert Television LLC ) File No. EB-03-SD-017
TV Station KPSP-LP ) NAL/Acct. No.
Cathedral City-Palm Springs, California ) FRN 000-497-
Adopted: November 8, 2004 Released: November
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand four hundred
($6,400) to Desert Television LLC (``Desert''), licensee of Class
A Television Broadcast Station KPSP-LP, for willful and repeated
violation of Section 11.35 of the Commission's Rules ("Rules").1
The noted violation involves Desert's failure to ensure that
required Emergency Alert System (``EAS'') equipment was installed
2. On March 31, 2003, the Commission's San Diego,
California Field Office (``San Diego Office") issued a Notice of
Apparent Liability for Forfeiture ("NAL"), to Desert for a
forfeiture in the amount of eight thousand dollars ($8,000).2
Desert filed a response to the NAL on May 14, 2003.
3. The FCC license for Station KPSP-LP was issued to
Desert on July 9, 2001, and on September 2, 2002,
Desert relocated the main studio for KPSP-LP from Palm
Springs to Thousand Palms, California. On November
13, 2002, an agent from the San Diego Office attempted
to conduct a routine inspection of the EAS equipment
of Station KPSP-LP. The agent found that the EAS
equipment was not functional, and Desert's Chief
Engineer advised the agent that the EAS system had
been inoperable since the move, approximately eleven
weeks prior to the inspection. Desert's Chief
Engineer stated it would be operating by November 15,
2002, because the necessary antenna equipment parts to
repair the EAS system had just arrived. A week later,
on November 20, 2002, the agent sent Desert's Chief
Engineer an E-mail requesting certain information: the
status of Desert's EAS equipment; copies of the EAS
printouts if the equipment was functional; and other
information as specified in Section 11.35(c) of the
Rules.3 Because the agent did not receive a
responsive E-mail from Desert, an agent from the San
Diego Office conducted a follow-up inspection on
February 12, 2003. Although the EAS equipment
appeared to be operational at that time, the station
records available to the agent contained no evidence
that any required monthly or weekly EAS tests had been
received since the November inspection, other than one
EAS test report dated February 11, 2003.
4. On March 31, 2003, the San Diego Office issued the
subject NAL to Desert for apparent willful and
repeated violation of Sections 11.35 and 11.61 of the
Rules.4 In its response, Desert disputes certain
factual findings, believes that it has remained in
substantial, if not full, compliance with the Rules,
and urges the Commission to rescind or reduce the
forfeiture amount based on the fact that it used its
best efforts to make the appropriate changes to the
EAS equipment to make it operational.
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''),5
Section 1.80 of the Rules,6 and The Commission's
Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Forfeiture Policy Statement'').7 In
examining Desert'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
6. Section 11.35(a) of the Rules9 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. If there is a
failure to receive the required tests, stations must
determine the cause of any failure to receive the
required tests and make appropriate entries in the
stations logs indicating the reasons why any tests
were not received. Section 11.35(b) of the Rules10
provides, among other things, that if the EAS Encoder
or EAS Decoder becomes defective, the broadcast
station may operate without the defective equipment
pending its repair or replacement for 60 days without
contacting the FCC. Section 11.35(c) of the Rules
further provides, however, that if the repair or
replacement is not completed within that 60 days, the
licensee must submit an informal request to the
appropriate District Director requesting more time to
repair the defective equipment. In that submission,
the licensee must also provide information as to what
is being used while the equipment is out of service,
and when the defective equipment will be repaired or
7. Desert seeks a cancellation or reduction in the amount
of the proposed forfeiture arguing that it did not
violate Section 11.35 of the Rules for the entire
period specified in the NAL (September 2002 through
February 11, 2003) and that it was, and has been, in
``substantial, if not full, compliance with the EAS
rules.'' It maintains that when it reinstalled EAS
equipment on October 16, 2002, after its move, it
discovered that the equipment was not fully
operational. Desert claims it began partial EAS
operations on November 14, 2002 (the day after the
Commission inspection), ordered new EAS equipment on
November 29, 2002 and was able to receive, send and
log weekly and monthly EAS tests on a regular basis
starting on or about January 3, 2003, all prior to the
Commission's re-inspection on February 12, 2003.
Desert's response is accompanied by documentation,
including a copy of an E-mail response dated November
20, 2002, allegedly sent by Desert's Chief Engineer to
an agent in the San Diego Office, and program logs to
demonstrate that EAS tests of the equipment were
performed regularly from January 6, 2003 through May
9, 2003. Desert maintains that by answering the
agent's E-mail on November 20, Desert was in
compliance with Section 11.35(b) which gives licensees
60 days to operate with defective equipment without
notifying the Commission, and 11.35(c) which requires
the licensee to notify the appropriate District
Director explaining its attempts to come into
compliance with 11.35(a) if repairs can not be
completed within 60 days.11 Desert further states
that it has fully corrected its defective EAS
equipment, and its violations, if any, were
inadvertent and minor, as well as unintentional.
8. In its program logs submitted with its response to the
NAL, Desert states that its EAS equipment was not
operational between September 2, 2002 and November 13,
2002, the date when the agent inspected Station KPSP-
LP.12 This admission affirms a violation of Section
11.35(a). Additionally, since this time period is
more than 60 days, the operation without the defective
EAS equipment exceeded the 60 day period permitted by
Section 11.35(b) of the Rules.13 The copy of the E-
mail which Desert submitted as substantiation of its
response to the Commission agent's inquiries of
November 20, 2002,14 does not excuse Desert's
violation. At best, this E-mail, if it had been
received, could be considered a post 60 day period
request for more time to complete the repairs to its
EAS equipment, as contemplated by Section 11.35(c) of
the Rules. In sum, we find that Desert willfully15
and repeatedly16 violated Section 11.35 of the Rules,
by its operation without the defective EAS equipment
between November 2, 2002 and January 6, 2003 (the date
the installed equipment was fully operational).
9. Desert also argues that if the Commission concludes
that a violation occurred, it should reduce the
forfeiture because of Desert's good faith efforts to
come into compliance with the rules.17 The Commission
recognizes Desert's discovery that its EAS system was
not in working order, and its subsequent ordering of
necessary antenna connector parts before the
Commission's November 13, 2002 inspection, are actions
indicative of a good faith attempt to comply with the
Commission's rules.18 These pre-inspection actions do
not warrant cancellation of the proposed forfeiture,
however, but do warrant a reduction from $8,000 to
10. Further, Desert's claim of inadvertence for its
failure to have the EAS equipment operational does not
excuse or mitigate its violation of the Rules. As the
Commission has stated, ``inadvertence . . . is at best
ignorance of the law,'' and is not considered a
mitigating circumstance.19 Similarly, the Commission
does not believe that Desert's not having its required
EAS equipment operating at the time of its relocation,
or within 60 days thereof, and thus not being able to
participate in the EAS program, is a minor
violation.20 Finally, Desert's claim that its
violations were unintentional, or not willful, does
not mitigate its violation of the Rules.21
Therefore, we conclude that no reduction or
cancellation of the proposed forfeiture is warranted
due to the Desert's claim of inadvertence, that its
violations were minor, or unintentional.
11. We have examined Desert's response to the NAL pursuant
to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement as well. As a
result of our review, we find that Desert willfully
and repeatedly violated Section 11.35 of the Rules,
and we find that cancellation of the proposed monetary
forfeiture is not warranted, but a reduction to six
thousand four hundred dollars ($6,400) is appropriate.
IV. ORDERING CLAUSES
12. 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,22 Desert Television LLC, 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
13. 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.23
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 must include the FCC
Registration Number (FRN) and the NAL/Acct. No. referenced in the
caption. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. 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. 20554.24
14. 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 Mr. William Evans, Vice President and General
Manager, Desert Television LLC, 31-276 Dunham Way, Thousand
Palms, California, 92276, and to its counsel, Maureen R.
Jeffreys, Esq., Arnold & Porter, 555 Twelfth Street, N.W.,
Washington, D.C. 20004-1206.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. § 11.35.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332940006 (Enf. Bur., San Diego Office, released March 31,
3 47 C.F.R. § 11.35 (c).
4 We will not address the apparent violation of Section 11.61 in
this Order because the NAL only specified a forfeiture amount for
the apparent violation of Section 11.35 of the Rules (EAS
equipment not installed and operational). See Blue Skies
Broadcasting Corporation, 18 FCC Rcd 15184 n. 2 (Enf. Bur. 2003).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
8 47 U.S.C. § 503(b)(2)(D).
9 47 C.F.R. § 11.35(a).
1047 C.F.R. § 11.35(b).
11 Because the NAL forfeiture amount is based on Desert's
apparent violation of Section 11.35(a) of the Rules, we need not
determine whether Desert's alleged E-mail complied with Section
11.35(b) and (c) of the Rules.
12 In its Deviation Report of November 14, 2002, Desert states
``[a]s of 9-02-02 [t]he EAS System has not been operational and
is not a scheduled log event as a weekly test.'' See, NAL
response, Exhibit 4.
13 Desert mistakenly relies on Smith Broadcasting of Santa
Barbara, 18 FCC Rcd 9127 (Enf. Bur. 2003), wherein the Bureau
cancelled an NAL, finding that less than 60 days had elapsed
while a station operated with defective EAS equipment. Here,
Desert operated without fully operational EAS equipment for more
than 60 days before allegedly contacting the Commission, and
gives no indication that it would have contacted the Commission
but for the Commission's November 13, 2002 inspection.
14 The agent from the San Diego Office agent states that she did
not receive the E-mail from Desert's Chief Engineer, and knew
nothing about it until she read Desert's NAL response.
15 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, 4388 ¶ 5 (1991), recon. denied, 7 FCC Rcd 3454
16 As 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 Co., supra at 4388
17 Desert proffers two cases where the Commission reduced a
penalty for a Section 11.35 violation when similar actions were
taken to fix defective EAS equipment prior to Commission notice
of the violation, KNEC Arnold Broadcasting Company, Inc., 16 FCC
Rcd 267 (Enf. Bur. 2001) and Rego, Inc., Licensee of Station WGEZ
(AM), 16 FCC Rcd 16795 (Enf. Bur. 2001). Because we agree that
Desert's pre-inspection actions denote good faith, there is no
need to discuss these cases further.
18 See also Atlantic Beach Radio, Inc., 18 FCC Rcd 14263 (Enf.
Bur. 2003) (crediting a licensee for its good faith attempt at
compliance with Section 11.35 of the Rules by purchasing EAS
equipment before the agent's inspection), and CB Radio, Inc., 19
FCC Rcd 14868, 14870 ¶ 10 (Enf. Bur. 2004) (crediting a licensee
for its good faith attempt at registering its tower with the
19 See Southern California Broadcasting Co., supra, at 4387 ¶ 3,
and Maxwell Broadcasting Group, Inc., 8 FCC Rcd 784, 784 ¶ 2 (MMB
1993) (denying a mitigation claim of a noncommercial broadcast
licensee, stating that the excuse of inadvertence, due to
inexperience and ignorance of the rules is not a reason to
mitigate a forfeiture for violation of the advertisement
20 See Mapa Broadcasting, L.L.C., 17 FCC Rcd 10519 (Enf. Bur.
2002) (finding that not having the required EAS equipment was not
a minor violation).
21 See text accompanying note 15 supra.
2247 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
2347 U.S.C. § 504(a).
24See 47 C.F.R. § 1.1914.