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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                  )                               
                                                                  
     In the Matter of             )                               
                                      File No. EB-07-SE-433       
     Cox Radio, Inc.              )                               
                                      NAL/Acct. No. 200832100058  
     FM Radio Station WKHK        )                               
                                      FRN No. 0001842533          
     Colonial Heights, Virginia   )                               
                                                                  
                                  )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: July 23, 2008 Released: July 25, 2008

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. introduction

    1. In this Notice of Apparent Liability for Forfeiture, we find Cox
       Radio, Inc. ("Cox Radio"), licensee of FM radio station WKHK ("WKHK"),
       in Colonial Heights, Virginia, apparently liable for a forfeiture in
       the amount of five thousand dollars ($5,000) for willful violation of
       Section 11.32(a)(9)(v) of the Commission's Rules ("Rules"). The
       apparent violation involves station WKHK's failure to protect the
       switch used to initiate the generation of the Emergency Alert System
       ("EAS") two-tone Attention Signal ("tone"), resulting in the
       activation and broadcast of the EAS tone.

   II. BACKGROUND

    2. On November 28, 2007, the Enforcement Bureau ("Bureau") received a
       complaint alleging that station WKHK interrupted a regular broadcast
       program with an EAS tone that was followed by the same commercial
       program instead of an actual EAS message or an EAS test. The complaint
       also alleged that similar EAS tone interruptions during WKHK's regular
       broadcast programming were a reoccurring problem.

    3. On January 29, 2008, the Bureau's Spectrum Enforcement Division
       ("Division") sent a letter of inquiry ("LOI") to Cox Radio directing
       it to respond to the allegations against station WKHK. On February 27,
       2008, Cox Radio filed its response to the LOI. In its response, Cox
       Radio states that on November 28, 2007, an employee of station WKHK
       was listening to an EAS weekly test on studio backup equipment and was
       unaware that "a data connection links the backup machine to certain
       live studio equipment, including EAS equipment." Cox Radio states that
       at the end of the EAS sequence, the backup equipment "sent a trigger
       over this data connection to the studio's EAS equipment, instructing
       the equipment to broadcast the EAS tone." Cox Radio notes that upon
       hearing the EAS tone broadcast, the employee immediately notified the
       station's engineering department. Cox Radio further notes that its
       chief engineer logged the event in station WKHK's EAS logs and
       explained the reason for the EAS tone broadcast to the employee after
       the tone had aired. Cox Radio asserts that the November 28th incident
       was an "isolated" occurrence and "is not part of a larger pattern."
       Additionally, Cox Radio asserts that it has retrained its studio
       operators on the transmission and reception of EAS tests and alerts to
       ensure that the events of November 28, 2007, are not repeated.

   III. dISCUSSION

    4. Section 503(b) of the Act, and Section 1.80(a) of the Rules, provides
       that any person who willfully or repeatedly fails to comply with the
       provisions of the Act or the Rules shall be liable for a forfeiture
       penalty. For purposes of Section 503(b) of the Act, the term "willful"
       means that the violator knew that it was taking the action in
       question, irrespective of any intent to violate the Commission's
       rules.

    5. Under the Commission Rules, EAS Participants, such as station WKHK,
       are required to have in place dedicated equipment to initiate,
       receive, and retransmit EAS alerts and participate in EAS tests. The
       Commission's Rules, under Part 11, Subpart B, set forth requirements
       for EAS equipment, including the format for the EAS protocol (used for
       sending and receiving EAS messages), and minimum requirements for EAS
       encoders and decoders. Pursuant to Section 11.32 of the Rules, EAS
       encoders must be capable of encoding the EAS protocol and providing
       the EAS code transmission. In addition, under Section 11.32(a)(9)(v),
       EAS encoders are subject to a requirement that "the switch used for
       initiating the automatic generation of the simultaneous tones [i.e.,
       the two-tone Attention Signal or EAS tone] shall be protected to
       prevent accidental operation." EAS Participants are required to
       conduct tests at regular intervals as specified in Section 11.61, and
       such tests are required to conform with the procedures in the EAS
       Operating Handbook. Section 11.61(a)(2) of the Rules and the EAS
       Handbook specify EAS test procedures for AM and FM broadcast stations,
       providing that required weekly tests consist of transmitting the EAS
       header codes and the EOM code. No Attention Signal (EAS tone) is used
       for EAS weekly tests.

    6. Cox Radio admits that the station WKHK employee played the EAS weekly
       test on backup studio equipment and caused the inadvertent broadcast
       of the EAS tone. Cox Radio states that this error occurred because
       WKHK's employee was unaware that use of the backup equipment would
       trigger a data transmission to the EAS equipment. As a Commission
       licensee, Cox Radio is charged with the responsibility of knowing and
       complying with the terms of its authorization and the Act and the
       Rules, including the requirements in place for preventing accidental
       operation of the equipment used to generate the EAS tone. Accordingly,
       we find that Cox Radio station WKHK apparently violated Section
       11.32(a)(9)(v) of the Rules by not protecting the controls that
       initiate the automatic generation of the EAS tone in a manner that
       would prevent accidental operation.

    7. In determining the appropriate forfeiture amount, Section 503(b)(2)(E)
       of the Act directs us to consider factors, such as "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." Having considered the statutory factors, we propose a
       forfeiture in the amount of $5,000 for Cox Radio station WKHK's
       failure to protect against accidental generation of the EAS tone.
       There is no base forfeiture amount established for violation of
       Section 11.32(a)(9)(v). The base forfeiture amount for "EAS equipment
       not installed or operational" is, however, $8,000. We find that
       failure to protecting the controls that initiate the automatic
       generation of the EAS tone in a manner that would prevent accidental
       operation is not as serious as failure to have any EAS equipment
       installed or operational. We therefore conclude that a lower proposed
       forfeiture of $5,000 is appropriate.

    8. As the nation's emergency warning system, the EAS system is critical
       to public safety. The transmission of EAS tones that are not part of
       an EAS test or actual emergency, whether intentional or accidental,
       compromises the integrity of the EAS system. Accordingly, we conclude
       that Cox Radio station WKHK is apparently liable for a $5,000
       forfeiture for its willful violation of Section 11.32(a)(9)(v) of the
       Rules.

   IV. ORDERING CLAUSES

    9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
       and Sections 0.111, 0.311 and 1.80 of the Rules, Cox Radio, Inc.,
       licensee of FM Radio Station WKHK, IS hereby NOTIFIED of its APPARENT
       LIABILITY FOR FORFEITURE in the amount of five thousand dollars
       ($5,000) for willful violation of Section 11.32(a)(9)(v) of the Rules.

   10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules, 
       within thirty days of the release date of this Notice of Apparent
       Liability for Forfeiture, Cox Radio, Inc., licensee of FM Radio
       Station WKHK, SHALL PAY the full amount of the proposed forfeiture or
       SHALL FILE a written statement seeking reduction or cancellation of
       the proposed forfeiture.

   11. 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/Account Number and FRN Number referenced
       above. Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
       Payment by overnight mail may be sent to U.S. Bank - Government
       Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
       63101. Payment by wire transfer may be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and account number 27000001. For payment by
       credit card, an FCC Form 159 (Remittance Advice) must be submitted.
       When completing the FCC Form 159, enter the NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to: Chief Financial Officer --
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C. 20554. Please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
       regarding payment procedures. Cox Radio, Inc., licensee of FM Radio
       Station WKHK, will also send electronic notification on the date said
       payment is made to Jacqui.Johnson@fcc.gov and JoAnn.Lucanik@fcc.gov.

   12. The response, if any, must be mailed to the Office of the Secretary,
       Federal Communications Commission, 445 12th Street, S.W., Washington,
       D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
       and must include the NAL/Acct. No. referenced in the caption.

   13. The Commission will not consider reducing or canceling a forfeiture in
       response to a claim of inability to pay unless the petitioner submits:
       (1) federal tax returns for the most recent three-year period; (2)
       financial statements prepared according to generally accepted
       accounting practices; or (3) some other reliable and objective
       documentation that accurately reflects the petitioner's current
       financial status. Any claim of inability to pay must specifically
       identify the basis for the claim by reference to the financial
       documentation submitted.

   14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by first class mail and certified mail
       return receipt requested to Robert J. Folliard, III, Esq., Counsel for
       Cox Radio, Inc., FM Radio Station WKHK, Dow Lohnes PLLC, 1200 New
       Hampshire Avenue, N.W., Suite 800, Washington, D.C., 20036-6802.

   FEDERAL COMMUNICATIONS COMMISSION

   Kathryn S. Berthot

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   File No. BRH-20030602BBP. The Commission granted Cox Radio a license
   renewal for station WKHK on November 13, 2000. The license expires on
   October 1, 2011.

   47 C.F.R. S: 11.32(a)(9)(v).

   See 47 C.F.R. Part 11, Subpart D.

   47 C.F.R. S: 11.61.

   See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission to Bob Willoughby,
   Executive Manager, Radio Station WKHK - FM, Cox Radio, Inc. (January 29,
   2008).

   See Letter from Counsel for Cox Radio, Inc., Robert J. Folliard, III,
   Esq., Dow Lohnes PLLC to Marlene H. Dortch, Secretary, Federal
   Communications Commission (February 27, 2008).

   Id., at 2, 4.

   Id.

   Id., at 1.

   47 U.S.C. S: 503(b).

   47 C.F.R. S: 1.80(a).

   The term "willful," as used in Section 503(b) of the Act, means the
   conscious and deliberate commission or omission of such act, irrespective
   of any intent to violate the Commission's Rules. 47 U.S.C. S: 312(f)(1). A
   violation is "repeated" within the meaning of Section 503(b) of the Act if
   it occurs more than once or continues for more than one day. 47 U.S.C. S:
   312(f)(2). See Southern California Broadcasting Co., Memorandum Opinion
   and Order, 6 FCC Rcd 4387, 4388 (1991).

   The Commission 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 ("EAS Participant") unless the station affirmatively
   requests authority to not participate. 47 C.F.R. S:S: 11.11 and 11.41.

   See 47 C.F.R. S: 11.1 et. seq.

   The EAS protocol consists of four parts: Preamble and EAS Header Codes;
   two-tone audio Attention Signal ("EAS tone"); message; and Preamble and
   EAS End of Message ("EOM") Codes. See 47 C.F.R. S: 11.31(a).

   47 C.F.R. S:S: 11.32, 11.33. The functions of the EAS encoder and decoder
   may be combined into a single unit referred to as an Encoder/Decoder
   provided that the unit complies with all specifications in Part 11 of the
   Commission's Rules. See 47.C.F.R. S: 11.34(c).

   47 C.F.R. S: 11.32(a).

   47 C.F.R. S: 11.32(a)(9)(v).

   47 C.F.R. S: 11.61(a). The Emergency Alert System 2007 AM and FM Handbook
   ("EAS Operating Handbook") can be found at
   www.fcc.gov/pshs/eas/easamfm.pdf.

   See 47 C.F.R. S: 11.61(a)(1), EAS Operating Handbook at 29.

   See 47 C.F.R. S: 11.51(b); also 47 C.F.R. S: 11.11(a), note 6 to Analog
   and Digital Broadcast Stations ("Effective January 1998, the two-tone
   signal [EAS tone] may only be used to provide audio alerts to audiences
   before EAS emergency messages and the required monthly tests.")

   See Discussion Radio Incorporated, Memorandum Opinion and Order and Notice
   of Apparent Liability for Forfeiture, 19 FCC Rcd 7433, 7437 (2004); see
   also Gilmore Broadcasting Corporation, Notice of Apparent Liability for
   Forfeiture, 21 FCC Rcd 6284, 6286-87 (2006); Criswell College,  Notice of
   Apparent Liability for Forfeiture,  21 FCC Rcd 5106, 5109 (2006); National
   Weather Networks, Inc., Notice of Apparent Liability for Forfeiture, 21
   FCC Rcd 3922, 3926 (2006); Journal Broadcast Corporation, Notice of
   Apparent Liability for Forfeiture,  20 FCC Rcd 18211, 18214 (2005); Shared
   Data Networks, LLC, 20 FCC Rcd 18184, 18187 (2005).

   See also EAS Operating Handbook.

   47 U.S.C. S: 503(b)(2)(E); see also The Commission's Forfeiture Policy
   Statement and Amendment of Section 1.80 of the Rules to Incorporate the
   Forfeiture Guidelines ("Forfeiture Policy Statement"), Report and Order,
   12 FCC Rcd 17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999).

   47 C.F.R. S: 1.80(b).

   47 U.S.C. S: 503(b).

   47 C.F.R. S:S: 0.111, 0.311 and 1.80.

   47 C.F.R. S: 1.80.

   Federal Communications Commission DA 08-1717

   2

   Federal Communications Commission DA 08-1717