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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                            )                                
     In the Matter of                                                        
                                            )                                
     Three Angels Broadcasting Network,                                      
     Inc.                                   )     File Number: EB-06-LA-129  
                                                                             
     Licensee of Station K43FO              )   NAL/Acct. No.: 200732900004  
                                                                             
     Las Vegas, Nevada                      )               FRN: 0003716198  
                                                                             
     Facility ID # 14302                    )                                
                                                                             
                                            )                                


                                FORFEITURE ORDER

   Adopted: September  10, 2007   Released:  September 12, 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 six thousand, four hundred dollars ($6,400) to Three
       Angels Broadcasting Network, Inc. ("3ABN"), licensee of Class A
       television station K43FO, in Las Vegas, Nevada, for repeated violation
       of Section 11.35(a)  of the Commission's Rules ("Rules") by failing to
       ensure the operational readiness of K43FO's Emergency Alert System
       ("EAS") equipment. On January 31, 2007, the Enforcement Bureau's Los
       Angeles Office issued a Notice of Apparent Liability for Forfeiture
       ("NAL") in the amount of $8,000 to 3ABN for failing to ensure the
       operational readiness of K43FO's Emergency Alert System ("EAS")
       equipment. In this Order we consider 3ABN's arguments that the facts
       of the case are in dispute and that the forfeiture should be rescinded
       because 3ABN immediately took steps to correct the EAS issues. We also
       consider 3ABN's request that we reduce the forfeiture based on its
       history of compliance with the Rules.

   II. BACKGROUND

    2. On May 16, 2006, in the course of a routine EAS inspection, an agent
       of the Enforcement Bureau's Los Angeles office met with 3ABN's local
       technical representative in Las Vegas who told the Los Angeles agent
       that the K43FO EAS receivers could not receive their assigned local
       primary ("LP") stations, a situation that the technical representative
       had made 3ABN aware of a year earlier. On May 17, 2006, the Los
       Angeles agent inspected the EAS equipment installed at the K43FO
       transmitter site in Las Vegas. The inspection revealed that the K43FO
       EAS receivers were not receiving intelligible transmissions from their
       assigned EAS LP stations serving the Las Vegas area, and there were no
       local logs or other evidence that the EAS equipment had been receiving
       and/or retransmitting tests or alerts from the LP stations. The
       inspection also revealed that the K43FO EAS equipment was capable of
       originating a manual weekly test.

    3. On July 13, 2006, the Los Angeles Office sent a Letter of Inquiry
       ("LOI") to 3ABN regarding the operational readiness of the K43FO EAS
       equipment. The Los Angeles Office also requested copies of the K43FO
       EAS logs documenting the functionality of the EAS equipment, for the
       period January through May, 2006. On July 20, 2006, 3ABN responded to
       the LOI, stating that "[d]ue to various technical reasons K43FO was
       unable to unreliably [sic] receive the LP station tests." 3ABN did not
       provide the requested EAS logs.

    4. On August 7, 2006, a Los Angeles agent contacted a 3ABN Engineer
       concerning the K43FO EAS equipment and its operational readiness. The
       engineer stated that he had no records concerning the K43FO EAS
       equipment but indicated to the agent that the EAS equipment most
       likely failed in the Fall of 2005, when the landlord of the site moved
       the K43FO transmitter.

    5. On January 31, 2007, the Enforcement Bureau's Los Angeles Office
       issued the NAL in the amount of $8,000 to 3ABN for violating Section
       11.35(a) of the Rules. 3ABN filed a response ("Response")  to the NAL
       on March 19, 2007. In its Response, 3ABN disputes the facts presented
       in the NAL, and argues that the forfeiture should be rescinded because
       3ABN immediately took steps to correct the EAS issues. 3ABN also
       requests that we reduce the forfeiture based on its history of
       compliance with the Rules.

   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 3ABN'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. 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.

    8. 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.

    9. 3ABN disputes the facts as described in the NAL. First, 3ABN states it
       first became aware of the "alleged EAS problem at K43FO" on May 16,
       2006 when the Los Angeles agent met with a "technical representative"
       of the station. 3ABN argues that the individual the agent met with was
       not a technical representative and includes a declaration with its
       Response in which this individual states that he never made the
       statements described in the NAL concerning the K43FO EAS equipment.
       3ABN argues that the agent should have talked with the station's chief
       operator, who was hired officially a few days after the Los Angeles
       agent's inspection, and who had been acting informally in that
       capacity prior to the time of the inspection. According to the agent's
       records and case report, the "technical representative" that he spoke
       with on May 16, 2006, was in fact the individual 3ABN asserts was the
       appropriate person the agent should have spoken with and indeed, was
       the same individual who was acting unofficially for 3ABN as the chief
       operator and later hired as the chief operator of K43FO. We note that
       the Response contains no declaration from the K43FO chief operator.

   10. 3ABN also disputes that the K43FO EAS logs were unavailable at the
       time of the May 16, 2006, inspection, and provides a copy of those
       logs. We note that not only was the Los Angles agent unable to obtain
       a copy of these logs at the time of the inspection, 3ABN failed to
       produce a copy, as requested, to the Los Angeles Office in response to
       the LOI. Consequently, we affirm the Los Angeles Office's
       determination that the EAS logs were unavailable. The newly discovered
       logs consist of four pages of handwritten notes, covering EAS and
       other technical inspections at the station, from October 7, 2005 to
       May 21, 2006. There are no entries or tapes concerning the receipt and
       transmission of the RWT's and RMT's until May 21, 2006, with the
       exception of a RWT received May 9, 2006, and a March 25, 2006, entry
       which reads "no monthly [RMT] received, sent monthly manual." An April
       15, 2006, entry reads "email to Dan about EAS paper and reception
       problems." The rest of the logs include several pages of tapes and
       logs from May 21, 2006 through June, 2006, and then automated logs
       from September 2006 through January 2007. In his May 21, 2006 report,
       the K43FO chief engineer writes that he "went to verify reception and
       noted that neither reciver [sic] was picking up the lp station." In
       fact, 3ABN acknowledges in its Response that at the time of the May
       16, 2007, inspection, K43FO was receiving neither the LP-2 station nor
       the LP-1 station tests and that on May 21, 2006, because of repairs
       made by the chief engineer, the EAS equipment was able to receive the
       LP-2 station, but was unable to receive the LP-1 station until the end
       of July 2006.

   11. 3ABN argues that when it became aware of the deficiencies in the K43FO
       EAS system in May 2006, it took immediate steps to remedy those
       problems. It argues that it succeeded in remedying those problems
       within the sixty period allotted by Section 11.35(b) of the Rules,
       which states that "[i]f the EAS Encoder or Decoder becomes defective,
       the broadcast station . . . may operate without the defective
       equipment pending its repair or replacement for 60 days without
       further FCC authority." 3ABN argues that because the station's EAS
       problems were addressed as soon as possible upon discovery, the
       forfeiture should be rescinded. We disagree. 3ABN apparently only took
       action regarding the lack of operational readiness of the K43FO EAS
       equipment because of the Los Angeles agent's inspection on May 16,
       2006. 3ABN maintains that its lack of operational readiness prior to
       May 16, 2006, did not extend for many months, as implied by the NAL.
       However, according to its EAS logs, 3ABN has no entries concerning the
       receipt or transmission of EAS RMTs from October 7, 2005, until May
       31, 2006, with the exception of the entry that noted that no RMT was
       received on March 25, 2006. Section 11.61 of the Rules requires all
       RMT and RWT tests to "conform with the procedures in the EAS Operating
       Handbook." For RMTs, the FCC EAS TV Handbook instructs stations, to
       "[l]og receipt and transmission of the test." Prior to the May 21,
       2006, there is no evidence that any RMTs were received or transmitted
       by K43FO as early as October 7, 2005, the first date entered in the
       proffered EAS logs. While 3ABN offers many excuses for its apparent
       lack of logs, including its reliance on volunteers to change the
       ribbon in the EAS equipment, its inability to obtain paper because of
       delivery problems, and a leak in the roof which ostensibly damaged
       some of its records, we find that none of them support a finding that
       the EAS equipment was operational. Had 3ABN been able to produce
       records showing that the K43FO EAS equipment was operational for less
       than 60 days prior to the repairs performed by the chief engineer on
       May 21, 2006, and that 3ABN was taking action to repair or replace the
       EAS equipment prior to the Los Angeles agent's inspection, then we
       would agree that Section 11.35(b) may apply to their situation.
       However, 3ABN is asking us to find that a licensee may take advantage
       of a sixty-day period to repair or replace its non-operational EAS
       equipment and to begin the 60 days when the licensee is notified of
       the violation by the Commission, regardless of when the problem
       actually began. We decline to do so. 3ABN's proposed interpretation
       would be particularly problematic in the instant case, where the
       licensee has not maintained the proper logs and records required by
       the Rules and the FCC EAS TV Handbook so that the Commission can
       ascertain when the lack of operational readiness began. Consequently,
       we find that Section 11.35(b) does not apply to this situation and
       that 3ABN repeatedly failed to ensure the operation readiness of the
       K43FO EAS equipment. 

   12. 3ABN also asks that the forfeiture amount be reduced based on its
       overall history of compliance with the Commission's Rules. We have
       reviewed our records and we concur. Consequently, we reduce 3ABN's
       forfeiture amount from $8,000 to $6,400.

   13. Based on the information before us, having examined it according to
       the statutory factors above, and in conjunction with the Forfeiture
       Policy Statement, we find that reduction of the proposed forfeiture to
       $6,400 is warranted.

   IV. ORDERING CLAUSES

   14. 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, Three Angels
       Broadcasting Network, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the
       amount of $6,400 for repeatedly violating Section 11.35(a) of the
       Rules.

   15. 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.

   16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to Three Angels
       Broadcasting Network, Inc., at its address of record, and David M.
       Silverman, Esquire, Davis Wright Tremaine, 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. 200732900004
   (Enf. Bur., Western Region, Los Angeles Office, released January 31,
   2007).

   3ABN requested and received an extension of time 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. 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, 17 FCC Rcd
   4055 (2002).

   47 C.F.R. S:S: 73.1820 and 73.1840.

   There were two conversations conducted by the Los Angeles agent, one on
   May 16, 2006, with the technical representative for 3ABN, who later became
   the chief operator for K43FO, and one on May 17, 2006, with a different
   individual, who was not the technical representative, and who signed a
   declaration for the 3ABN Response.

   The engineer from 3ABN who told the Los Angeles agent, on August 7, 2006,
   that the EAS equipment most likely failed in the Fall of 2005 recants that
   statement in a declaration included in the Response, and now states that
   his records show that he personally verified the operation of the system
   on October 5, 2005.

   47 C.F.R. S: 11.35(b).

   We note that 3ABN has produced no evidence that it made efforts to repair
   or replace the K43FO EAS equipment after the March 25, 2006, entry in its
   log that no RMT was received.

   47 C.F.R. S: 11.61(a).

   FCC EAS TV Handbook at p. 30.

   Additionally, because the repairs performed by the chief engineer occurred
   only after the Los Angeles agent's inspection, we find that they cannot be
   a basis to reduce the forfeiture amount. 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. AT&T Wireless Services, Inc. 17 FCC
   Rcd 21866, 21871-76 (2002).

   47 U.S.C. S: 503(b), 47 C.F.R. S:S: 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 07-3880

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   Federal Communications Commission DA 07-3880