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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-NY-080
) File No. EB-03-NY-081
)
Kimtron, Inc. ) NAL/Acct. No. 200432380006
Stations WPTR(AM) and WDCD-FM )
Blue Bell, Pennsylvania ) FRN No. 0003-4129-62
FORFEITURE ORDER
Adopted: February 8, 2005 Released: February 10,
2005
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of four thousand eight hundred
dollars ($4,800) to Kimtron, Inc. (``Kimtron''), licensee of AM
Station WPTR, Albany, New York and Station WDCD-FM, Clifton
Park, New York, for willful and repeated violation of Sections
11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A) of the
Commission's Rules (``Rules'').1 The noted violations involve
Kimtron's failure to conduct required monthly and weekly tests
of the Emergency Alert System (``EAS'') and failure to maintain
station records of required monthly and weekly EAS test
messages.
2. On January 13, 2004, the Commission's New York,
New York District Office (``New York Office'') issued a Notice
of Apparent Liability for Forfeiture (``NAL'') to Kimtron for a
forfeiture in the amount of six thousand dollars ($6,000).2
Kimtron filed a response to the NAL on February 11, 2004.
II. BACKGROUND
3. On June 4, 2003, a Commission agent conducted an
inspection of the EAS equipment and records for Stations WPTR
and WDCD-FM. The two radio stations, which serve different
communities, were using the same EAS equipment. The agent found
that over a six month period (December 2002 through May 2003),
WPTR and WDCD-FM failed to conduct required weekly tests
(``RWTs'') of the EAS header and EOM codes for 16 weeks:
December 1, 2002 through January 11, 2003; January 19 - 25,
2003; February 9 - 15, 2003; February 23 through March 15, 2003;
April 6 - 19, 2003; April 27 through May 3, 2003; and May 18 -
31, 2003. The agent also found that the stations failed to
conduct required monthly tests (``RMTs'') of the EAS header
codes, Attention Signal, Test Script, and End of Message
(``EOM'') code for December, 2002, January, 2003 and March 2003.
4. In addition, the agent found that the stations
failed to maintain EAS equipment so that it was capable of
receiving weekly EAS test messages, failed to maintain station
records of RWTs received, or in the alternative, failed to enter
into the log reasons why the tests were not received for 15
weeks: December 1, 2002 through January 25, 2003; February 23,
2003 through March 8, 2003; March 30, 2003 through April 5,
2003; April 13 - 19, 2003; April 27 through May 3, 2003; and,
May 11- 24, 2003. The same problem existed for the RMTs received
for December 2002, January 2003, and March 2003.
5. On January 13, 2004, the New York Office issued
the subject NAL to Kimtron for six thousand dollars ($6,000) for
apparent willful and repeated violation of Sections 11.35(a),
11.61(a)(1)(i), and 11.61(a)(2)(i)(A) of the Rules for the
referenced EAS violations between December 1, 2002 through May
31, 2003. Kimtron responded to the NAL stating that it
determined, based on its own investigation, that its EAS
equipment was fully functional and programmed to receive all
monthly and weekly EAS tests supplied by the Local Primary
Station, Station WMHT-FM. Kimtron alleges that Station WMHT-FM
did not deliver its EAS obligation for RMTs during the months of
December 2002, January 2003 and March 2003, Kimtron also states
that its chief operator, who was charged with executing the RWTs
and maintaining all EAS logs, failed to consistently perform his
duties of executing or logging in the RWTs. Kimtron states that
it has discharged that engineer and replaced him with a
qualified individual. Kimtron maintains that it has a history
of compliance with Commission Rules and requests that the
proposed forfeiture be cancelled.
III. DISCUSSION
6. 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, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Kimtron'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 such other matters as justice may require.5
7. Section 11.61(a)(1)(i) of Rules requires broadcast
stations to conduct RMTs of the EAS header codes, Attention
Signal, Test Script, and EOM code that conforms to procedures in
the EAS Operating Handbook, and Section 11.61(a)(1)(v).6 WPTR
and WDCD-FM's station records failed to show that RMTs of the
EAS header codes, Attention Signal, Test Script, and EOM code
were received or transmitted for the months of December 2002,
January 2003, and March 2003. Kimtron was monitoring Station
WMHT-FM for its EAS obligation and claims that WMHT-FM did not
send EAS monthly tests for those three months. Subsequent to
the issuance of the NAL, the New York Office contacted WMHT-FM
and, according to WMHT-FM's records, it did transmit an EAS
monthly test in December 2002 and January 2003, but not in
March, 2003.7 In March of each year, the National Weather
Service (``NWS'') normally sends the RMT for Region 6 of New
York. In March of 2003, however, NWS did not send out a RMT due
to adverse weather conditions. Because WMHT-FM did not transmit
an EAS test for March, 2003 to WPTR and WDCD-FM, the stations
could not conduct that EAS test. Based on evidence from WMHT-FM
and the inspection, Kimtron failed to conduct RMTs in December,
2002 and January, 2003.
8. Section 11.61(a)(2)(i)(A) of the Rules requires
broadcast stations to conduct required weekly tests of the EAS
header and EOM codes at least once a week at random days and
times. For the six month period between December 1, 2002 and
May 31, 2003, WPTR and WDCD-FM's station records indicate that
Kimtron failed to conduct the RWTs of the EAS header and EOM for
the 16 weeks as listed above.8 When the Field Office contacted
WMHT-FM to determine if WMHT-FM transmitted EAS tests for the
weeks in question, WMHT-FM replied that for five random weeks
during the six-month period in question, WMHT-FM did not
transmit EAS tests due to clerical errors.9 Because WMHT-FM
did not transmit EAS tests for those five weeks to WPTR and
WDCD-FM, the stations could not conduct those EAS tests.
Kimtron, however, does not dispute that EAS tests were not
broadcast for any of the weeks in question, attributing the
inconsistent treatment of RWTs to the chief engineer whom it
subsequently discharged. Based on the evidence from WMHT-FM and
the inspection, Kimtron failed to conduct RWTs for 11 weeks
between December 1, 2002 and May 31, 2003.
9. Section 11.35(a) of the Rules requires broadcast
stations to ensure that their EAS equipment is installed so
that the monitoring and transmitting functions are available
during times that stations and systems are in operation.
Additionally, broadcast stations must determine the cause of any
failure to receive the required monthly and weekly EAS tests and
make entries in the station records indicating the reasons why
any tests were not received. Kimtron failed to log RMTs
received for the months of December, 2002 and January, 2003,
failed to note that it did not receive a test for March, 2003,
and failed to record a reason why the test was not conducted in
March, 2003. Further, Kimtron made no log entries of RWTs sent
for the 15 weeks between December 1, 2003 and May 24, 2003, as
listed above,10 nor did it note that it did not receive or log
reasons why it did not receive RWTs for the five weeks the tests
were not sent from WMHT-FM.
10. We conclude that Kimtron willfully11 and
repeatedly12 violated Sections 11.35(a), 11.61(a)(1)(i), and
11.61(a)(2)(i)(A) of the Rules. The Commission has consistently
held that the licensee is responsible for its employees'
actions, so Kimtron is liable for the actions of its chief
engineer.13 Moreover, correction of the violations is expected
and does not merit a reduction of the forfeiture amount.14
11. We have examined Kimtron'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 Kimtron willfully and repeatedly violated Sections
11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A) of the Rules,
but we find that the forfeiture for these violations should be
reduced to $4,800 because of Kimtron's history of past
compliance.15
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,16 Kimtron, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of four thousand eight
hundred dollars ($4,800) for its willful and repeated violation
of Sections 11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A) of
the Rules.
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.17 Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. 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 Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.18
14. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Kimtron, Inc., P.O. Box 3003, Blue Bell,
Pennsylvania 19422, and to its counsel, John S. Neely, Esquire,
Miller and Nelly, P.C., 6900 Wisconsin Avenue, Suite 704,
Bethesda, Maryland 20815.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35(a), 11.61(a)(1)(i), and 11.61(a)(2)(i)(A).
2 Notice of Apparent Liability for Forfeiture, File No. EB-03-NY-
080, EB-03-NY-081, NAL/Acct. No. 200432380006 (Enf. Bur., New
York Office, released January 13, 2004).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 C.F.R. § 11.61(a)(1)(v).
7 The New York Office contacted the chief engineer for WMHT-FM
who confirmed this information by correspondence dated November
19, 2004.
8 See para. 3, supra.
9 See note 7, supra.
10 See para. 4, supra.
11 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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
12 As provided by 47 U.S.C. § 312(f)(2), ``[t]he term `repeated',
when used with reference to the commission or omission of any
act, means the commission or omission of such act more than once
or, if such commission or omission is continuous, 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). Southern California Broadcasting Co., supra.
13 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64
(2002).
14 AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002);
Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994).
15 KGB, Inc., 13 FCC Rcd 16396, 16398 ¶ 8 (1998).
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 U.S.C. § 504(a).
18 See 47 C.F.R. § 1.1914.