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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                          )                               
                                                                          
     In the Matter of                     )                               
                                              File No. EB-09-SE-137       
     Calvary Chapel of Costa Mesa, Inc.   )                               
                                              NAL/Acct. No. 200932100077  
     FM Radio Station KWVE                )                               
                                              FRN No. 0006377303          
     San Clemente, California             )                               
                                                                          
                                          )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: September 15, 2009 Released: September 17, 2009

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. introduction

    1. In this Notice of Apparent Liability for Forfeiture, we find Calvary
       Chapel of Costa Mesa, Inc., licensee of FM radio station KWVE (also
       referred to as "KWVE" or "Licensee"), in San Clemente, California,
       apparently liable for a forfeiture in the amount of five thousand
       dollars ($5,000) for willful violation of Section 11.61(a) of the
       Commission's Rules ("Rules"). The apparent violation involves station
       KWVE's transmission of an unauthorized Required Monthly Test ("RMT")
       of the Emergency Alert System ("EAS") in a manner that was not in
       accordance with the procedures specified in the EAS Operating
       Handbook, in violation of Section 11.61(a) of the Rules.

   II. BACKGROUND

    2. KWVE is a Local Primary ("LP") station designated to initiate the
       transmission of EAS tests and EAS alerts in several California
       counties. The Commission's Enforcement Bureau ("Bureau") received a
       complaint alleging that on October 19, 2008, station KWVE transmitted
       commercial programming and an advertisement as part of an EAS test
       message, thus causing the programming and advertisement to be
       retransmitted by other broadcast stations and cable systems in the
       area.

    3. On August 27, 2009, the Bureau's Spectrum Enforcement Division
       ("Division") issued a letter of inquiry ("LOI") to the Licensee
       directing it to respond to the allegations against station KWVE. On
       September 9, 2009, the Licensee filed its response to the LOI. In its
       LOI response, the Licensee admits that on October 19, 2008, an
       employee of station KWVE who intended to run a scheduled weekly EAS
       test instead ran an unscheduled RMT, and then failed to transmit the
       End of Message ("EOM") code and the message advising that the test had
       been concluded. The Licensee has also submitted station KWVE's EAS
       logs for October 19, 2008, in which an entry notes that "[t]he RMT was
       not supposed to be sent ... [t]he board operator mis-interpreted the
       cart label." The Licensee asserts that the incident of October 19,
       2008 was caused "solely by operator error" and "did not constitute a
       willful or repeated violation" of the Rules. Additionally, the
       Licensee asserts that it has provided additional EAS training for each
       of the station operators to ensure that the events of October 19,
       2008, are not repeated.

   III. dISCUSSION

    4. Section 503(b) of the Communications Act of 1934, as amended ("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. Section 11.61 of the Rules states that EAS participants shall conduct
       tests at regular intervals and that "all tests will conform with the
       procedures in the EAS Operating Handbook." Section 11.61(a)(1) and the
       EAS Handbook specify EAS test procedures for AM and FM broadcast
       stations, providing that RMTs consist of transmitting the EAS head
       codes, the Attention Signal, Test Script and EOM code. In particular,
       the EAS Operating Handbook indicates that during required monthly
       tests the EOM code must be transmitted prior to the resumption of
       normal programming. Based upon our review of the record before us, it
       does not appear that the Licensee intentionally used the EAS signal to
       draw attention to the commercial programming and advertisement that it
       broadcast. Nevertheless, the Licensee acknowledges that on October 19,
       2008, KWVE transmitted an unscheduled RMT and failed to transmit the
       EOM code prior to the resumption of normal programming during its
       origination of the RMT. Accordingly, we find that the Licensee
       violated Section 11.61(a) of the Rules by transmitting an unauthorized
       RMT and by failing to conform to the RMT procedures set forth in the
       EAS Operating Handbook.

    6. In its LOI response, the Licensee admits that on October 19, 2008, a
       station KWVE employee transmitted an unscheduled RMT and failed to
       transmit the EOM code, which caused the inadvertent inclusion of
       KWVE's regular broadcast as part of the EAS transmission, but claims
       that this error occurred because of the one-time error of that KWVE
       employee. As a Commission licensee, KWVE is charged with the
       responsibility of knowing and complying with the terms of its
       authorization and the Act and the Rules, including the required
       procedures for conducting EAS tests. Moreover, the Commission has long
       held that "licensees are responsible for the acts and omission of
       their employees and independent contractors," and has consistently
       "refused to excuse licensees from forfeiture penalties where the
       actions of employees or independent contractors have resulted in
       violations." Accordingly, we find that the Licensee's violation of
       Section 11.61(a) was willful.

    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 station KWVE's failure to
       conform its monthly test to the procedures set forth in the EAS
       Operating Handbook. There is no base forfeiture amount established for
       violation of Section 11.61 of the Rules. The base forfeiture amount
       for "EAS equipment not installed or operational" is, however, $8,000.
       We find that failure to conform a RMT to the procedures set forth in
       the EAS Operating Handbook 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. KWVE is a designated LP station, and broadcast
       stations and cable systems in the San Clemente area are dependent upon
       KWVE to transmit accurate emergency information over the EAS system.
       Thus, not only did KWVE's failure to adhere to the EAS test procedures
       result in KWVE transmitting commercial programming and advertisement
       in conjunction with an EAS test, it also caused other broadcast
       stations and cable systems to erroneously retransmit KWVE's commercial
       programming and advertisement in conjunction with an EAS test. The
       transmission of EAS tones that are followed by a broadcast that is not
       part of an EAS test or actual emergency information, whether
       intentional or accidental, compromises the integrity of the EAS
       system. Accordingly, we conclude that station KWVE is apparently
       liable for a $5,000 forfeiture for its willful violation of Section
       11.61(a) 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, Calvary Chapel of
       Costa Mesa, Inc., licensee of FM Radio Station KWVE, IS hereby
       NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
       five thousand dollars ($5,000) for willful violation of Section
       11.61(a) 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, Calvary Chapel of Costa Mesa, Inc., licensee
       of FM Radio Station KWVE, 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. Calvary Chapel of Costa Mesa, Inc.,
       licensee of FM Radio Station KWVE, will also send electronic
       notification on the date said payment is made to
       Deborah.Broderson@fcc.gov and Kathy.Berthot@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 Charles W. Smith, President, Calvary
       Chapel of Costa Mesa, Inc., 3000 W. Macarthur Blvd, Suite 500, Santa
       Ana, CA 92704, and to Lauren A. Colby, Esq., Counsel for Calvary
       Chapel of Costa Mesa, Inc., FM Radio Station, KWVE, 10 East 4th
       Street, Frederick, MD 21701.

   FEDERAL COMMUNICATIONS COMMISSION

   Kathryn S. Berthot

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   File No. BALH-19810223HT. The Commission most recently granted the
   Licensee a license renewal for station KWVE on November 29, 2005. See,
   File No. BRH-20050801DFO. The license expires on December 1, 2013.

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

   47 C.F.R. S:11.61(a). The Emergency Alert System 2007 AM and FM Handbook
   ("EAS Operating Handbook") can be found at
   http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-278628A3.pdf.

   See 47 C.F.R. S: 11.18(b). State and local EAS plans identify LP sources
   responsible for coordinating carriage of common emergency messages from
   sources such as the National Weather Service or local emergency management
   officials. In addition, required monthly and weekly EAS tests originate
   from LP sources and must be retransmitted by the participating broadcast
   station.

   The programming that was incorporated in the RMT broadcast included
   religious music, an advertisement for a religious conference, and
   information regarding KWVE's Spanish HD radio channel.

   See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission to Jerry Walker, FCC
   Contact, Calvary Chapel of Costa Mesa, Inc. (August 27, 2009).

   See Letter from Lauren A. Colby, Esq., Counsel for Calvary Chapel of Costa
   Mesa, Inc., to Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission (September 9, 2009)
   ("LOI response").

   Id. at 2; see also, id. at Declaration of Ken Kellog.

   Id. at Daily Station Operating Log, Entry for October 19, 2008.

   Id. at 2.

   Id.

   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).

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

   EAS Operating Handbook at 34.

   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 (Enf. Bur., Spectrum Enf. Div. 2006),
   rescinded on other grounds, 21 FCC Rcd 9812 (Enf. Bur., Spectrum Enf. Div.
   2006); Criswell College,  Notice of Apparent Liability for Forfeiture,  21
   FCC Rcd 5106, 5109 (Enf. Bur., Spectrum Enf. Div. 2006); National Weather
   Networks, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
   3922, 3926 (Enf. Bur., Spectrum Enf. Div. 2006); Journal Broadcast
   Corporation, Notice of Apparent Liability for Forfeiture,  20 FCC Rcd
   18211, 18214 (Enf. Bur., Spectrum Enf. Div. 2005); Shared Data Networks,
   LLC, 20 FCC Rcd 18184, 18187 (Enf. Bur., Spectrum Enf. Div. 2005).

   See also EAS Operating Handbook.

   Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
   21861, 21863-64 (2002) ("Eure"); MTD, Inc., Memorandum Opinion and Order,
   6 FCC Rcd 34, 35 (1991); Wagenvoord Broadcasting Co., Memorandum Opinion
   and Order, 35 FCC 2d 361 (1972); see also, Rama Communications, Inc.,
   Memorandum Opinion and Order, 23 FCC Rcd 18209, 18211 (Enf. Bur. 2008)
   ("[W]here lapses in compliance occur, neither the negligent acts nor
   omissions of station employees or agents, nor the subsequent remedial
   actions undertaken by the licensee, excuse or nullify the licensee's rule
   violation.") (citations omitted); Corr Wireless Communications LLC, Notice
   of Apparent Liability for Forfeiture, 24 FCC Rcd 5419, 5421 (Enf. Bur.,
   Spectrum Enf. Div. 2009) (declining to reduce a proposed forfeiture when
   licensee claimed unauthorized operation of two stations was caused
   inadvertently by a technician's error).

   See Eure, 17 FCC Rcd at 21863-64; Triad Broadcasting Company, Inc.,
   Memorandum Opinion and Order, 96 FCC 2d 1235, 1244 (1984).

   See supra n. 14.

   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, 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 09-2053

   2

   Federal Communications Commission DA 09-2053