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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-SD-144
Aracelis Ortiz, Executrix )
for the Estate of Carlos Ortiz ) NAL/Acct. No.
200232940008
Harlingen, Texas )
) FRN 0003-7552-87
)
FORFEITURE ORDER
Adopted: February 20, 2004 Released: February
23, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twelve thousand dollars
($12,000) to Aracelis Ortiz, Executrix for the Estate of Carlos
Ortiz (``Aracelis Ortiz''), licensee of Class A Television
Broadcast station KCOS-LP, Phoenix, Arizona, for willfully
violating Sections 73.1125(c) and 11.35(a) of the Commission's
Rules (``Rules'').1 The noted violations involve Aracelis
Ortiz's failure to ensure that required Emergency Alert System
(``EAS'') equipment was operational at station KCOS-LP and Mrs.
Ortiz's failure to have a main studio at a location within KCOS-
LP's predicted Grade B contour on June 25, 2002.
2. On September 30, 2002, the District Director of the
Commission's San Diego, California Field Office ("San Diego
Office'') issued a Notice of Apparent Liability for Forfeiture
("NAL")2 in the amount of fifteen thousand dollars ($15,000) to
Aracelis Ortiz. After receiving an extension of time within
which to respond to the NAL, Mrs. Ortiz filed a response on
November 18, 2002.
II. BACKGROUND
3. On May 6, 2002, an agent from the Commission's San
Diego Office attempted to conduct a routine inspection
of KCOS-LP's EAS equipment. The agent discovered that
there was neither a studio address nor a telephone
listing for station KCOS-LP in any of the telephone
directories for the Phoenix area. However, the
transmitter for Station KCOS-LP was operating on TV
channel 28.
4. On May 9, 2002, an agent from the San Diego Office
telephoned the licensee in Harlingen, Texas to obtain a
studio address and telephone number for KCOS-LP. No
one knowledgeable about KCOS-LP was available at that
time. On May 10, 2002, the District Director of the
San Diego Office sent a Letter of Inquiry to Mrs. Ortiz
requesting a contact person in the Phoenix area
responsible for KCOS-LP, the address of the local
studio, and a local telephone number for the station.
The San Diego Office received a fax reply to the Letter
of Inquiry on May 20, 2002. The fax gave a telephone
number for station KCOS-LP, however, when called, a
recording indicated that the telephone number had been
disconnected. The fax also indicated that the studio
address for station KCOS-LP was 6750 E. Main Street,
Suite 106, Mesa, Arizona.
5. On June 24, 2002, an agent from the San Diego Office
visited the studio address provided in the May 20, 2002 fax. The
agent found no studio for KCOS-LP at that address. However, he
found that the transmitter site management company was located at
this address. Employees of the transmitter site management
company provided a Phoenix area telephone number for KCOS-LP.
6. On June 25, 2002, using the telephone number provided
by the site management company, the agent reached Mr.
Thomas Northcross, station manager for KCOS-LP. Mr.
Northcross stated that KCOS-LP did not have a studio in
operation at that time, but that one was under
construction at 3820 E. Main St., Suite 10, Mesa,
Arizona. He also stated that KCOS-LP was operating as a
Low Power TV station and did not originate any
programming, as it was rebroadcasting programs received
by an earth station at the transmitter site. Mr.
Northcross also stated that KCOS-LP did not have any EAS
equipment installed at that time but that the equipment
would be installed when the studio was completed.
7. On September 30, 2002, the District Director of the San
Diego Office issued a NAL to Aracelis Ortiz for violating
Sections 73.1125(c) and 11.35(a) of the Rules. On
November 18, 2002, Aracelis Ortiz filed a response to the
NAL. In her response, Mrs. Ortiz informs the Commission
that she is the licensee of station KCOS-LP, not because
she is experienced in the operation of broadcast
stations, but because she is the Executrix of her late
husband's estate and he was the licensee of the station.
Further, Mrs. Ortiz asserts that the allegations in the
NAL, that station KCOS-LP did not have a main studio and
that it did not have EAS equipment are not based on a
physical inspection of KCOS-LP, but on a telephone
conversation between an FCC agent and Mr. Thomas
Northcross, then station manager of KCOS-LP. In
addition, Mrs. Ortiz states that the Enforcement Bureau
did not issue her a Notice of Violation (``NOV'') prior
to issuing the NAL, with an opportunity to comment on the
alleged rule violations. Specifically regarding the main
studio violation, Mrs. Ortiz states that she executed a
lease on June 2, 2002 for space to use as a main studio
at 3820 E. Main Street, Mesa, Arizona. Mrs. Ortiz claims
to have accepted the space ``as is,'' occupied it and
commenced construction of an office and studio
immediately, and further states that on June 25, 2002,
the studio was under construction.3 Mrs. Ortiz states
that Mr. Northcross was in Phoenix to obtain programming
commitments and because she sought to comply with the
FCC's requirement to maintain and staff a main studio.
Finally, Mrs. Ortiz argues that Section 73.1125(c) of the
Rules, which requires a Class A low power licensee to
maintain a main studio within its Grade B contour, does
not require the main studio to be operational 24 hours
per day, 365 days per year. Mrs. Ortiz claims to have
been in substantial compliance with the main studio rule.
8. Regarding the EAS violation, Mrs. Ortiz states that on
January 10, 2001, EAS equipment was ordered for several Class A
low power stations licensed to Carlos Ortiz or Ortiz Broadcasting
Company. Mrs. Ortiz includes a copy of an invoice dated January
9, 2001 which shows five EAS-TV with character generators and ten
modified MTA-16 AM/FM receivers having been ordered. Also
included is a copy of a cancelled check for payment of the
invoice which is dated April 22, 2002. Mrs. Ortiz claims that,
although payment was made more than two months before the
inspection, on the date of inspection, the EAS equipment still
had not been delivered. Mrs. Ortiz asserts that she made a good
faith effort to comply with the EAS rule and should not be
penalized for the equipment vendor's inability to make timely
delivery.
III. DISCUSSION
·
9. The proposed forfeiture amount in this case is
being assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),4 Section 1.80
of the Rules,5 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) (``Forfeiture Policy Statement''). In
examining Aracelis Ortiz'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
10. Section 73.1125(c) of the Rules provides that each
Class A Television station shall maintain a main studio within
the station's predicted Grade B contour. There was no main
studio located at 6750 East Main Street, Suite 106, Mesa,
Arizona, the first address provided as the main studio for
station KCOS-LP. We know this because agents from the San Diego
Office attempted to inspect the station at that address on June
24, 2002. This fact was further confirmed by the telephone
conversation with Mr. Northcross, the station manager, on June
25, 2002, when he stated that KCOS-LP did not have a main studio
in operation at that time, but one was under construction at 3820
East Main Street, Suite 10, Mesa, Arizona. Moreover, the agents'
inability to find a telephone number or studio address in any
telephone directory for the Phoenix area for station KCOS-LP,
beginning on May 6, 2002, is a further indication that station
KCOS-LP did not have a main studio. Finally, Aracelis Ortiz
confirmed that there was no main studio for station KCOS-LP in
her response to the NAL when she stated that the main studio was
``under construction and had not been completed.'' There is no
indication in the response that any of the activities normally
associated with a main studio were being conducted from the
alleged main studio that was under construction at 3820 East Main
Street. Although Mrs. Ortiz claims that Mr. Northcross was in
the Phoenix area to obtain programming commitments and because
she was aware of the FCC's main studio staffing requirements, we
note that the cited violation was failure to have a main studio
at all, not failure to maintain appropriate studio staffing. We
find that Aracelis Ortiz willfully7 violated Section 73.1125(c)
of the Rules by failing to have a main studio within KCOS-LP's
predicted Grade B contour. However, we note that Mrs. Ortiz did
enter into a lease on June 2, 2002 (prior to the inspection) for
real property located at 3820 E. Main Street, Suite 10, Mesa,
Arizona, to be used and occupied as a ``television network.''
Mrs. Ortiz's execution of a lease for a main studio is evidence
of her good faith intention to comply with Section 73.1125(c) of
the Rules.8 Therefore, we will reduce the base forfeiture amount
of $7,000 assessable for the Section 73.1125(c) violation to
$5,600.
11. Section 11.35(a) of the Rules provides that broadcast
stations, which include Class A television stations,9 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 times the station and systems are
in operation. Because Aracelis Ortiz did not have EAS equipment
installed at station KCOS-LP on June 25, 2002, we find that she
willfully violated Section 11.35(a) of the Rules. However, Mrs.
Ortiz has established that she had ordered and paid for EAS
equipment for station KCOS-LP at least two months before the date
of the attempted inspection, even though the equipment had not
been delivered by that date. Although we do not believe that
Mrs. Ortiz's efforts to comply with the EAS rules are sufficient
to justify canceling the forfeiture, we do believe that those
same efforts merit a reduction of the proposed forfeiture. We
therefore reduce the base forfeiture amount attributable to the
EAS violation from $8,000 to $6,400 based on Mrs. Ortiz's good
faith efforts to comply with Section 11.35(a) of the Rules prior
to being informed of the violation.10
12. As for Mrs. Ortiz's remaining arguments, we note that
Mrs. Ortiz is now the licensee of KCOS-LP as a result of her
husband's death. However, we also note that Mrs. Ortiz had two
years between the dates of Mr. Ortiz's death on August 5, 2000
and the issuance of the NAL on September 30, 2002 to become
knowledgeable about her responsibilities as a broadcaster.
Licensees are expected to know and comply with the Commission's
rules.11 Mrs. Ortiz's assertion that the allegation that KCOS-LP
did not have a main studio is not based on a physical inspection
but on a phone conversation with then station manager Thomas
Northcross is without merit. On June 24, 2002, an agent from the
San Diego Office went to 6750 E. Main Street, Suite 106, Mesa,
Arizona, the studio address provided in response to a Letter of
Inquiry to Aracelis Ortiz. The agent found no studio for KCOS-LP
at that address. What the agent did find there was the
transmitter site management company. The agent's inability to
find a main studio at the address provided led to his first hand
determination that there was no main studio for KCOS-LP at that
location. The agent's determination was subsequently confirmed
by the conversation with Thomas Northcross, in which he stated
that KCOS-LP did not have a main studio in operation at that
time. Further, although Mrs. Ortiz claims to have been in
substantial compliance with the main studio rule, we look to
licensees to be in full compliance with the rules, not merely
substantial compliance. Moreover, we have already acknowledged
Mrs. Ortiz's good faith efforts to comply with the main studio
rule and reduced the forfeiture accordingly. Finally, Mrs. Ortiz
asserts that the Bureau did not issue her a NOV prior to issuing
the NAL, with an opportunity to comment on the alleged rule
violations. However, nothing in the Communications Act or the
Commission's Rules requires the issuance of an NOV prior to the
issuance of an NAL.12 Consistent with Section 1.80(f)(3),13 Mrs.
Ortiz was afforded 30 days within which to respond to the NAL
(plus an extension of time), and she did respond. Mrs. Ortiz was
not deprived of an opportunity to be heard on the matter of the
violations.
13. There is no evidence that Aracelis Ortiz is
currently in compliance with Section 11.35(a) of the Rules with
respect to the EAS violation. Accordingly, we will require,
pursuant to Section 308(b) of the Act,14 that Aracelis Ortiz
report to the Enforcement Bureau no more than thirty (30) days
following the release of this Order how she has achieved
compliance with Section 11.35(a) of the Rules. The report must
be submitted in the form of an affidavit signed by Aracelis
Ortiz.
IV. ORDERING CLAUSES
14. 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,15 Aracelis Ortiz IS LIABLE FOR A MONETARY FORFEITURE in
the amount of twelve thousand dollars ($12,000) for willfully
violating Sections 73.1125(c) and 11.35(a) of the Rules.
15. IT IS FURTHER ORDERED that, pursuant to Section
308(b) of the Act, Aracelis Ortiz must submit the report
described in Paragraph 13, above, within no more than thirty (30)
days following the release of this Order, to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Room 7-A728,
Washington, D.C. 20554, Attention: Jacqueline Ellington, Esq.
16. 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.16
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. 200232940008, and FRN 0003-7552-87. 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. 20554.17
17. 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 Aracelis Ortiz, Executrix of the Estate of Carlos
Ortiz, P.O. Box 530391, Harlingen, Texas 78553.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 73.1125(c) and 11.35(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232940008 (Enf. Bur., San Diego, September 30, 2002).
3 According to the response filed by Mrs. Ortiz, the main
studio is now completed and is fully functional.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 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).
8 See A-O Broadcasting Corporation, FCC 03-322 (December 29,
2003) (licensee granted good faith reduction for starting
construction on its main studio prior to inspection).
9 See 47 C.F.R. § 11.11.
10 See Access.1 Communications Corp. - NY, DA 03-3412 (Enf.
Bur., October 30, 2003) (good faith reduction given where tower
owner identified the need to repaint the tower, scheduled the
tower for repainting, and repainted the tower prior to any notice
of inspections or issuance of the NAL).
11 See, e.g. Monroe Area Broadcasters, Inc., 18 FCC Rcd 6255
(Enf. Bur. 2003).
12 See AT&T Wireless Services, Inc., 17 FCC Rcd 7891, 7895
(2002).
13 47 C.F.R. § 1.80(f)(3).
14 47 U.S.C. § 308(b).
15 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.