Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
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 )
Gla-Mar Broadcasting, LLC ) File Number: EB-06-SF-048
Licensee of KBZB-FM ) NAL/Acct. No.: 200632960001
Pioche, NV ) FRN: 0009062464
Facility ID # 78999 )
)
FORFEITURE ORDER
Adopted: May 22, 2007 Released: May 24, 2007
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 two hundred and fifty dollars ($250) to Gla-Mar
Broadcasting, LLC, ("Gla-Mar"), licensee of station KBZB-FM, in
Pioche, Nevada, for willfully and repeatedly violating Section
11.35(a) of the Commission's Rules ("Rules"). On September 29, 2006,
the Enforcement Bureau's San Francisco Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $8,000 to
Gla-Mar for failing to ensure the operational readiness of the KBZB-FM
Emergency Alert System ("EAS") equipment. In this Order, we consider
Gla-Mar's arguments that it was in the process of ordering new EAS
equipment prior to the inspection by the San Francisco Office, and
that the forfeiture should be cancelled based on Gla-Mar's inability
to pay.
II. BACKGROUND
2. On June 13, 2006, agents from the Enforcement Bureau's San Francisco
Office inspected the KBZB-FM transmitter atop Highland Peak and the
main studio of KBZB-FM located at 100 Main Street, Pioche, Nevada. At
the time of the inspection, the San Francisco agents observed that the
KBZB-FM EAS equipment was unable to transmit a test. Specifically, the
agents asked the staff to transmit a required weekly test ("RWT"). The
RWT was attempted and the EAS unit indicated the test was running. The
station's monitor speakers, however, did not carry the EAS audio,
indicating that the test was not transmitted. Normal programming
continued over-the-air when the EAS weekly test was purportedly in
progress. The KBZB-FM staff indicated that they were aware that the
EAS equipment was not fully functional. KBZB-FM staff members also
indicated to the San Francisco agents that they reported this failure
to the owner of the station, but no repairs were attempted.
3. The San Francisco agents asked to inspect KBZB-FM's EAS log. The
agents found no written log, consequently, there were no log entries
giving a date of the failure of the EAS equipment or describing
efforts to determine the cause of failure to receive required tests or
to repair or replace the defective equipment. Additionally, the agents
found no logs of RWT's, required monthly tests ("RMT's") or alerts.
The agents were given seven printed EAS tapes. The tapes indicated
KBZB-FM received RWT's on September 8, 2005, January 26, 2006, and
April 20, 2006. The tapes also indicated KBZB-FM transmitted RWT's on
May 17, 2005, September 11, 2005 and January 19, 2006. There were no
tapes indicating the receipt or transmission of any RMT's.
4. On June 23, 2006, the KBZB-FM's engineer emailed the San Francisco
Office and indicated that new EAS equipment had been installed, and
that the staff had been trained on how to use it.
5. On September 29, 2006, the San Francisco Office issued a NAL in the
amount of $8,000 to Gla-Mar, finding that Gla-Mar apparently willfully
and repeatedly failed to ensure the operational readiness of the
KBZB-FM EAS equipment. Gla-Mar filed a response ("Response") on
November 27, 2006, arguing that it was in the process of ordering new
EAS equipment prior to the inspection by the San Francisco Office, and
that the forfeiture should be cancelled based on Gla-Mar's inability
to pay.
III. DISCUSSION
6. 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 ("Forfeiture
Policy Statement"). In examining Gla-Mar'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.
7. 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.
8. 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.
9. Gla-Mar does not dispute the facts as described in the NAL, but does
argue that it was in the process of ordering EAS equipment for KBZB-FM
prior to the San Francisco agent's inspection on June 13, 2006.
Gla-Mar did not order the EAS equipment, however, until June 15, 2006.
Reductions based on good faith efforts to comply generally involve
situations where violators demonstrate that they initiated measures to
correct or remedy violations prior to a Commission inspection or
investigation. Gla-Mar has produced no evidence to substantiate its
claim that it was in the process of ordering EAS equipment prior to
the inspection by the San Francisco agent, therefore, we are unable to
reduce the proposed forfeiture amount based on Gla-Mar's good faith
efforts to comply with the Rules.
10. Gla-Mar also requests that the forfeiture amount be cancelled based on
its inability to pay. To support its request, Gla-Mar supplies three
years of income tax data. In analyzing a financial hardship claim, the
Commission generally has looked to gross revenues as a reasonable and
appropriate yardstick in determining whether a licensee is able to pay
the assessed forfeiture. The data produced by Gla-Mar does not
support cancellation of the forfeiture, however, it does support a
significant reduction of the forfeiture amount. Therefore, while we
find that Gla-Mar willfully and repeatedly violated Section 11.35(a)
of the Rules, based upon its inability to pay, we conclude that
pursuant to Section 503(b) of the Act and the Forfeiture Policy
Statement, reduction of the $8,000 forfeiture to $250 is warranted.
IV. ORDERING CLAUSES
11. 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, Gla-Mar Broadcasting,
LLC, IS LIABLE FOR A MONETARY FORFEITURE in the amount of $250 for
willfully and repeatedly violating Section 11.35(a) of the Rules.
12. 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.
13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Gla-Mar
Broadcasting, LLC, at its address of record, and Aaron Shainis,
Esquire, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S 11.35(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632960001
(Enf. Bur., Western Region, San Francisco Office, released September 29,
2006).
Additionally, KBZB-FM did not submit an informal request to the FCC San
Francisco District Director, as required by Section 11.35(c) of the Rules,
concerning the defective EAS equipment and when it would be repaired or
replaced.
One staff member stated that EAS tests were done orally, but the agents
found no oral tests entered into the station log.
Gla-Mar requested and received a 30 day extension to respond to the NAL.
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)(E).
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).
See Radio One Licenses, Inc., 17 FCC Rcd 20408 (EB 2002), recon. denied,
18 FCC Rcd 15964 (2003).
See PLB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 11.35(a).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-2136
1
3
Federal Communications Commission DA 07-2136