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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Richard A. & Joann R. Peterson, )
Joint Tenants File Number: EB-05-SD-175
)
Licensee of Station KBSZ(AM) NAL/Acct. No.: 200632940001
)
Wickenburg, Arizona FRN: 0007706864
)
Facility ID #11217
)
)
FORFEITURE ORDER
Adopted: September 27, 2006 Released: September 29, 2006
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eight thousand dollars ($8,000) to Richard A. & Joann R.
Peterson, Joint Tenants ("Petersons"), licensees of AM Broadcast Radio
station KBSZ in Wickenburg, Arizona, for willfully and repeatedly
violating Section 11.35 of the Commission's Rules ("Rules"). On
November 18, 2005, the Enforcement Bureau's San Diego Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") to the Petersons
for failing to ensure the operational readiness of KBSZ(AM)'s
Emergency Alert System ("EAS") equipment. In this Order, we consider
the Peterson's arguments that the station was complying with EAS
testing requirements and that infrequent use of the state-wide EAS
system does not support the severity of the proposed forfeiture.
II. BACKGROUND
2. On August 10, 2005, an agent from the Enforcement Bureau's San Diego
Office conducted an inspection at the main studio of KBSZ(AM) located
at 340 W. Wickenburg Way, Wickenburg, Arizona. The agent observed that
there was no EAS equipment at their studio. The agent asked Mr.
Peterson the status of the station's EAS equipment and Mr. Peterson
stated that the station did not have any EAS equipment installed at
the studio or at the transmitter site. He also stated that his
contract engineer advised him that he needed EAS equipment for
KBSZ(AM). Mr. Peterson told the agent that KBSZ(AM) was once owned by
Circle S Broadcasting Company, Inc. ("Circle S") and was once
co-located with radio station KSWG(FM), also licensed to Wickenburg,
Arizona. All EAS tests received and transmitted by KSWG(FM) are aired
on KBSZ(AM) via a studio-to-transmitter link and all EAS records are
maintained by KSWG(FM), according to Mr. Peterson. The San Diego agent
observed that KBSZ(AM) maintained no EAS logs and had no way to
monitor any EAS alerts at its station. The agent then contacted
KSWG(FM) by telephone and requested that KSWG(FM) conduct an EAS
weekly test. The agent monitored station KBSZ(AM) and noted that the
EAS test signal from KSWG(FM) was being relayed.
3. On August 18, 2005, the San Diego agent contacted the KSWG(FM) general
manager. The general manager told the agent that KSWG(FM) did not have
any agreement with KBSZ(AM) to continue sharing EAS equipment since
KBSZ(AM) was sold to the Petersons in 2001. The general manager also
told the agent that he was not aware that KSWG(FM) continued to share
its EAS equipment with KBSZ(AM) and stated he would have this practice
discontinued.
4. On August 19, 2005, the San Diego agent spoke with KBSZ(AM)'s contract
engineer. The engineer acknowledged that he had advised the Petersons
that EAS equipment should be installed at the KBSZ(AM) studio. The
engineer also told the agent that he was advised by Mr. Peterson that
KBSZ(AM) was sharing EAS equipment with KSWG(FM) and that all the
required EAS tests were being received and transmitted via KSWG(FM).
5. A review of the Commission's records shows that Circle S is the
current licensee of KSWG(FM). Circle S was the licensee of KBSZ(AM)
until July 16, 1997, when the KBSZ(AM) license was assigned to SBD
Broadcasting, Inc. ("SBD"). On July 9, 2001, the KBSZ(AM) license was
assigned from SBD to the Petersons.
6. On November 18, 2005, the Enforcement Bureau's San Diego Office issued
a NAL in the amount of $8,000 to the Petersons. In the NAL, the San
Diego Office found that the Petersons apparently willfully and
repeatedly violated Section 11.35 of the Rules, by failing to ensure
the operational readiness of KBSZ(AM)'s EAS equipment. The Petersons
filed a response on December 19, 2005 ("Response"). In their Response,
the Petersons state that throughout the tenure of their ownership of
KBSZ(AM), and when the station was owned by the preceding licensee,
EAS tests were conducted by KBSZ(AM) by placing a call to KSWG(FM).
The Petersons assert that while they were aware of the requirement to
have separate EAS equipment for KBSZ(AM), the method they were using
was in "technical compliance" with the Commission's EAS Rules. The
Petersons also assert that KBSZ(AM) is a small station serving a small
community, but that they have served that community well and have met
their public interest obligations. Additionally, the Petersons state
that the state-wide EAS system has been used infrequently, and that
this infrequent use does not support the severity of the proposed
forfeiture. Finally, the Petersons state that since the NAL was
released, they have purchased and installed EAS equipment for
KBSZ(AM).
III. DISCUSSION
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
the 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.
8. The Rules provide that every AM and FM broadcast station is part of
the nationwide EAS network and is categorized as a participating
national EAS source unless the station affirmatively requests
authority to not participate. The EAS provides the President and state
and local governments with the capability to provide immediate and
emergency communications and information to the general public. State
and local area plans identify local primary sources responsible for
coordinating carriage of common emergency messages from sources such
as the National Weather Service or local emergency management
officials. Required monthly and weekly tests originate from EAS Local
or State Primary sources and must be retransmitted by the
participating station.
9. Section 11.35 of the Rules requires all broadcast stations to ensure
that EAS encoders, EAS decoders and attention signal generating and
receiving equipment is installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. Broadcast stations must also determine
the cause of any failure to receive required monthly and weekly EAS
tests, and must indicate in the station's log why any required tests
were not received and when defective equipment is removed and restored
to service.
10. Section 11.61(a)(1) and (2) of the Rules requires broadcast stations
to (a) receive monthly EAS tests from designated local primary EAS
sources and retransmit the monthly test within 60 minutes of its
receipt and (b) conduct tests of the EAS header and EOM codes at least
once a week at random days and times. The requirement that stations
monitor, receive and retransmit the required EAS tests ensures the
operational integrity of the EAS system in the event of an actual
disaster. Appropriate entries must be made in the broadcast station
log as specified in Sections 73.1820 and 73.1840, indicating reasons
why any tests were not received or transmitted.
11. The Petersons argue that their method sharing of EAS equipment, and
running EAS tests, with a station which was previously co-owned with
KBSZ(AM) was in "technical compliance" with the Commission's EAS
Rules. This is incorrect. As the San Diego Office correctly stated in
the NAL, Section 11.51(j) of the Rules allows broadcast stations that
are co-owned and co-located with a combined studio or control facility
to provide EAS for the combined stations with one EAS encoder. Section
11.51(j), however, does not contemplate stations that are co-located,
but not co-owned, sharing EAS equipment. In the present case, KBSZ(AM)
and KSWG(FM) are neither co-owned nor co-located. Therefore, KBSZ(AM)
is not in compliance with the Commission's EAS Rules. Additionally,
KSWG(FM) personnel deny knowledge of the KBSZ(AM) EAS arrangement,
demonstrating that KBSZ(AM) has no ability to control the EAS
equipment at issue here, or to ensure its operational readiness.
Consequently, we find no merit to this argument.
12. We also find no merit to the Peterson's assertion that the lack of
state-wide activation of the EAS system justifies a lower forfeiture
amount in this case. The Commission has determined that the base
forfeiture for failing to ensure the operational readiness of EAS
equipment is $8,000, and has consistently imposed that forfeiture
amount against licensees. While there are mitigating factors that we
must take into account prior to imposing a forfeiture, as explained
above, the frequency with which a state activates its EAS system is
not one of them. Because the Commission does not require such
mitigation, and, in fact, may find such mitigation in opposition to
the purpose of the EAS Rules, we decline to mitigate the proposed
forfeiture amount on that basis.
13. Also, while we applaud the Petersons' record of community service
concerning KBSZ(AM), we find that it does not mitigate the forfeiture
proposed here. As stated above, the purpose of the EAS system is to
ensure that stations like KBSZ(AM) are able to receive and retransmit
emergency communications from the President, or state or local
governments, in the case of actual emergencies. This is one of the
fundamental public service requirements placed on broadcast stations,
and it is one that KBSZ(AM) did not comply with.
14. Finally, we also decline to mitigate the proposed forfeiture based on
the Petersons' assertion that since the NAL was released, they have
purchased and installed EAS equipment for KBSZ(AM). The Commission has
consistently held that a licensee is expected to correct errors when
they are brought to the licensee's attention and that such correction
is not grounds for a downward adjustment in the forfeiture.
15. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that the Petersons
willfully and repeatedly violated Section 11.35 of the Rules, by
failing to ensure the operational readiness of the EAS equipment at
KBSZ(AM). Considering the entire record and the factors listed above,
we find that neither reduction nor cancellation of the proposed $8,000
forfeiture is warranted.
IV. ORDERING CLAUSES
16. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Richard A. & Joann R.
Peterson ARE LIABLE FOR A MONETARY FORFEITURE in the amount of $8,000
for repeatedly violating Section 11.35 of the Rules.
17. 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. 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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-
6106. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Richard A. &
Joann R. Peterson at their address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S 11.35.
KSWG(FM) is now located at 801 W. Wickenburg Way, Wickenburg, Arizona.
See File No. BAPL-19970602GE, granted July 16, 1997.
See File No. BAL-20010525ABU, granted July 9, 2001.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632940001
(Enf. Bur., Western Region, San Diego Office, released November 18, 2005).
47 C.F.R. S 11.35.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. SS 11.11 and 11.41.
47 C.F.R. SS 11.1 and 11.21.
47 C.F.R. S 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
sources.
47 C.F.R. S 11.35(a) and (b).
The required monthly and weekly tests are required to conform to the
procedures in the EAS Operational Handbook. See also, Amendment of Part 11
of the Commission's Rules Regarding the Emergency Alert System, EB Docket
No. 01-66, Report and Order, 17 FCC Rcd 4055 (2002) (effective May 16,
2002, the required monthly EAS test must be retransmitted within 60
minutes of receipt).
47 C.F.R. SS 73.1820 and 73.1840.
47 C.F.R. S 11.51(j).
Hull Broadcasting, Inc., 19 FCC Rcd 16710 (EB 2004).
See, e.g. ,Farmworkers Educational Radio Network, Inc., DA 06-1330, 2006
WL 1788513 (rel. June 29, 2006); Rafael C. Guerrero, 20 FCC Rcd 14389 (EB
2005).
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
47 C.F.R. S 11.35.
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 11.35.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1934
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Federal Communications Commission DA 06-1934