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.


                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
O'hana Radio Partners           ) File Number:  EB-03-HI-057
Licensee of Station KAWV(FM)    )
Lihue, Hawaii                   )           NAL/Acct.       No. 
                                ) FRN  0004059317

                        FORFEITURE ORDER

     Adopted:  February 24, 2005        Released:   February  28, 

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 
dollars ($6,400) to O'hana Radio Partners  (``O'hana''), licensee 
of FM radio Station KAWV, Lihue, Hawaii, for willful and repeated 
violation of Section 11.35(a) of the Commission's Rules 
("Rules").1  The noted violation involves O'hana's failure to 
have Emergency Alert System (``EAS'') equipment installed and 
operational at Station KAWV.      

     2.   On March 22, 2004, the Commission's Honolulu, Hawaii 
Resident Agent's Office (``Honolulu Office'') issued a Notice of 
Apparent Liability for Forfeiture (``NAL'') to O'hana for a 
forfeiture in the amount of eight thousand dollars ($8,000).2    


     3.   On July 1, 2003, agents from the Honolulu Office 
monitored Station KAWV, 98.1 MHz, from 11:10 a.m. until 12:35 
p.m. HST.  During this period, the EAS required monthly test, 
issued by the Hawaii State Civil Defense at approximately 11:13 
a.m. HST, was not retransmitted.  On July 1, 2003, agents from 
the Honolulu Office inspected Station KAWV's main studio, located 
in the Puhi Industrial Park at Leleiona Road, Lihue, Hawaii.  The 
EAS equipment was not installed such that the monitoring and 
transmitting functions of the equipment were available during the 
times the station was in operation.  The station manager advised 
the agents that EAS equipment had never been completely installed 
since the station began operation in August of 2002, and that the 
station was still awaiting correct parts to complete the EAS 

     4.   On March 22, 2004, the Honolulu Office issued an NAL to 
O'hana.  The NAL found that O'hana had apparently willfully and 
repeatedly violated Section 11.35(a) of the Rules by failing to 
have EAS equipment installed and operational at Station KAWV.  
O'hana responded to the NAL on April 21, 2004.  In its response, 
O'hana admits the violation but, nevertheless, requests 
cancellation or reduction of the forfeiture.  In support of its 
request, O'hana asks the Enforcement Bureau to consider that:  it 
has corrected the violations; it does not have the ability to pay 
the proposed forfeiture; it has no other violations of record; 
and as a small business, the fine is disproportionate to the size 
of its business.        


     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, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 
303 (1999) (``Forfeiture Policy Statement'').  Section 503(b) of 
the Act requires that the Commission, in examining O'hana's 
response, 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

     6.   Section 11.35(a) of the Rules requires all broadcast 
stations to ensure that EAS encoders, EAS decoders, and attention 
signal generating and receiving equipment used as part of the EAS 
are installed and operational so that the monitoring and 
transmitting functions are available during the times the station 
is in operation.  On July 1, 2003, O'hana did not have 
operational EAS equipment installed at Station KAWV.  No station 
records existed to indicate that the EAS equipment was ever 
functional at any time since Station KAWV began operation in 
August of 2002.  Thus, we find that O'hana willfully6 and 
repeatedly7 violated Section 11.35(a) of the Rules.  

     7.   O'hana argues that the amount of the forfeiture should 
be reduced from the maximum to a much smaller amount to properly 
reflect the size of its business.  O'hana's reliance on its small 
business status alone will not suffice;8 it must still 
substantiate its inability to pay claim with financial 
documentation.9    When considering an inability to pay claim, 
the Commission has determined that, in general, a licensee's 
gross revenues are the best indicator of its ability to pay a 
forfeiture.10  The Commission has also concluded that it is 
appropriate to take into account ``income derived from other 
affiliated operations, as well as the financial status of the 
station(s) in question.''11  O'hana, which is a partnership, has 
provided some but not all of its financial documentation.  
Although O'hana provided its 2003 partnership federal income tax 
return, it did not provide the tax returns of its partners, which 
are relevant to the issue of whether the partnership has the 
ability to pay the forfeiture.  For 2002, O'hana provided the tax 
return of its majority partner, but did not provide its own tax 
return, nor did it provide the tax returns of its other partners.  
For the tax year 2001, O'hana provided its partnership federal 
income tax return and that of its majority partner, but it did 
not provide the tax returns of its other partners.12  Because 
O'hana has not provided all of its financial documentation, we 
find that it has not provided sufficient documentation to support 
its inability to pay claim.13    

     8.   Finally, although O'hana claims to have made the 
appropriate corrections to the EAS equipment, as the Commission 
stated in Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), 
``corrective action taken to come into compliance with Commission 
rules or policy is expected, and does not nullify or mitigate any 
prior forfeitures or violations.''14  However, consistent with 
O'hana's claim, we do find that it has a history of overall 
compliance with the Commission's rules and reduce the forfeiture 
amount to $6,400.         


     9.   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 O'hana Radio Partners IS LIABLE FOR A MONETARY 
FORFEITURE in the amount of six thousand four hundred dollars 
($6,400) for willful and repeated violation of Section 11.35(a) 
of the Rules.

     10.  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 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. 20554.17 

     11.  IT IS FURTHER ORDERED that a copy of this Order shall 
be sent by certified mail, return receipt requested, to O'hana 
Radio Partners, 41-625 Eclectic Street, # J-1, Palm Desert, 
California 92260 and its counsel, James Primm, Esq., 2225 Skyway 
Drive, Santa Maria, California 93455.

                              FEDERAL COMMUNICATIONS COMMISSION

                              George R. Dillon
                              Assistant Chief, Enforcement Bureau

1 47 C.F.R.  11.35(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200432860003 (Enf. Bur., Honolulu Office, released March 22, 
3 47 U.S.C.  503(b).
4 47 C.F.R.  1.80.
5 47 U.S.C.  503(b)(2)(D).
6 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 (1991),  recon. denied, 7 FCC Rcd 3454 (1992).
7 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.
8 See Forfeiture Policy Statement, 12 FCC Rcd at 17109 paras. 51-
52 (finding that the Commission's forfeiture policies and 
precedent is consistent with the requirements of Section 223 of 
the Small Business Regulatory Enforcement fairness Act of 1996, 
Pub. L. 104-121, 110 Stat. 847 (1996), because the agency 
considers, among other factors, inability to pay, good faith 
efforts, participation in alternative compliance programs, in 
assessing forfeitures).  
9 See, e.g., Jerry Szoka, 14 FCC Rcd 20147, 20150 paras. 9-10 
(1999); Bay Broadcasting Corp., 15 FCC Rcd 13613, 13615-16 para. 
8-9 (Enf. Bur. 2000); Merichem Sasol LLC, 15 FCC Rcd 8450, 8452 
para. 4 (WTB 1999).
10 PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 
(1992) (``PJB'').
11 KASA Radio Hogar, Inc., 17 FCC Rcd 6256, 6258 (2002) (quoting 
Emery Telephone, 13 FCC Rcd 23854, 23859-60 (1998) (emphasis 
added), recon. denied, 15 FCC Rcd 7181 (1999)).  
12 Although O'hana did not come into existence until January 1, 
2001, it also provided the 2000 federal income tax return for its 
majority partner. 
13 See KASA Radio Hogar, Inc., 17 FCC Rcd at 6259.  We note that, 
although we do not have all of O'hana's financial documentation 
before us, based on our review of the financial information 
provided thus far, it appears that O'hana's gross revenues would 
not support an inability to pay reduction of the forfeiture.  We 
further note that if O'hana provides the missing documentation, 
consistent with PJB, we would analyze the combined gross receipts 
of its partners to determine its ability to pay the forfeiture.  
Therefore, any additional gross receipts reflected in the missing 
financial documentation would only increase O'hana's total gross 
receipts and, consequently, further demonstrate an ability to pay 
the forfeiture.
14 See also AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875 
(2002); Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629 
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.