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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Telefutura Partnership of Douglas ) File No. EB-09-SD-0103
Licensee of Station KFTU-DT ) NAL/Acct. No. 201032940003
Douglas, Arizona ) FRN:0006495147
Facility ID #81441 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 10, 2010 Released: May 12, 2010
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Telefutura Partnership of Douglas ("Telefutura"), the licensee
of Digital Television broadcast station KFTU-DT ("KFTU") in Douglas,
Arizona, apparently willfully and repeatedly violated Section 11.35
of the Commission's Rules ("Rules") by failing to ensure the
operational readiness of KFTU's Emergency Alert System ("EAS")
equipment. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Telefutura is
apparently liable for a forfeiture in the amount of eight thousand
dollars ($8,000).
II. BACKGROUND
1. On September 1, 2009, agents from the Enforcement Bureau's San Diego
Office conducted an inspection at the main studio of KFTU located at
1111 G Avenue, Douglas, Arizona. Although EAS equipment was present,
the agents found that it was not operating properly at the time of
inspection. The agents observed that the EAS equipment was capable of
transmitting a required weekly test ("RWT"). A review of the EAS logs
and printouts generated by the EAS Encoder/Decoder indicated,
however, that from February 2009 through August 2009, no required
monthly tests ("RMTs") were recognized as being received or
retransmitted from the designated first local primary station
("LP-1"), and that no RWTs had been received from the designated
second local primary station ("LP-2") since January 2007. At the time
of the inspection, the staff of KFTU acknowledged that they did not
add the LP-2 monitoring source until on or about August 26, 2009.
2. In addition, the agents noted that KFTU was broadcasting a second
program stream (Univision programming), which, according to KFTU
staff, began operations on June 12, 2009. EAS messages could not be
broadcast on this second program stream, as no EAS equipment was
connected. According to both KFTU staff and EAS records, EAS
notifications have never been made on the Univision program stream of
KFTU.
3. On the date of inspection, the agents contacted the area LP-1 and
LP-2 radio stations and requested that they transmit RWTs in order to
test the receiver capabilities of KFTU's EAS equipment. Neither of
the RWTs could be heard through KFTU's EAS equipment. Printouts from
KFTU's EAS equipment indicated that the RWTs were detected, however
the printouts stated "Already expired," and did not have any valid
header codes for the EAS equipment to recognize the originator of the
EAS test or what type of EAS test was being sent. The agents examined
KFTU's EAS records and found that there were no entries made
indicating: (1) why the EAS equipment was not properly monitoring the
two designated local primary radio stations, (2) why the EAS
equipment was not operating properly, (3) what may have caused these
failures, and (4) what steps were taken to remedy them.
III. DISCUSSION
1. Section 503(b) of the Act provides that any person who willfully
fails to comply substantially with the terms and conditions of any
license, or willfully fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. The term
"willful" as used in Section 503(b) has been interpreted to mean
simply that the acts or omissions are committed knowingly. The term
"repeated" means the commission or omission of such act more than
once or for more than one day.
2. Every 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 refrain from participation, and
that request is approved by the Commission. The EAS enables the
President and state and local governments 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. As the nation's emergency warning system, the
Emergency Alert System is critical to public safety, and we recognize
the vital role that broadcasters play in ensuring its success. The
Commission takes seriously any violations of the Rules implementing
the EAS and expects full compliance from its regulatees.
3. 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. 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. Accordingly, 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.
4. A review of KFTU's station log from February 2, 2009, through
September 1, 2009, revealed that the KFTU's EAS equipment was not
operating properly. KFTU did not properly receive or transmit any
RMTs from either the LP-1 or the LP-2 station during this period, and
there was no record to indicate what was done to remedy this problem.
All EAS tests received during this period received an error message
that stated "Already expired," with no EAS header protocols, as
demonstrated by the tests conducted by the designated LP-1 and LP-2
radio stations during the FCC inspection. There were no appropriate
entries made in the EAS log to indicate reasons why tests were
continually receiving an expired message and why the RMTs were not
transmitted. Also, the second monitoring assignment was not added
until on or about August 26, 2009. If a true emergency had occurred
during this period and the LP-1 was not operational, a message from
the LP-2 would not have been received. Because it was not utilizing a
second monitoring source, KFTU may have put viewers at risk.
5. KFTU was also multicasting, using a second program stream to provide
Univision programming to the viewing public. Any viewers of this
program stream would have been unaware of any EAS alerts or messages,
as no EAS equipment was connected. As stated in 11.51(c) of the
Rules, all DTV broadcast stations must transmit EAS messages on all
program streams.
6. The engineering staff of KFTU acknowledged to the San Diego agents
that KFTU's EAS equipment may have been experiencing technical
problems on the day of the inspection, and admitted that the second
program stream had no connection to KFTU EAS equipment. Telefutura
was aware of the EAS requirements, having installed EAS equipment,
therefore, this violation is willful. In addition, Telefutura has
failed to properly maintain the EAS equipment installed at KFTU for a
period of over seven months, and failed to install any EAS
capabilities for its second program stream for more than 80 days. As
a result, Telefutura's violation is repeated. Based on the evidence
before us, we find that Telefutura apparently willfully and
repeatedly violated Section 11.35 of the Rules by failing to ensure
the operational readiness of the EAS equipment for its authorized DTV
broadcast station, KFTU-DT, Douglas, Arizona.
7. Pursuant to The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines ("Forfeiture Policy Statement") and Section 1.80 of the
Rules, the base forfeiture for EAS equipment not installed or
operational is $8,000. In assessing the monetary forfeiture amount,
we must also take into account the statutory factors set forth in
Section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with
respect to the violator, the degree of culpability, and any history
of prior offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement, Section 1.80
of the Rules, and the statutory factors to the instant case, we
conclude that Telefutura Partnership of Douglas is apparently liable
for an $8,000 forfeiture.
IV. ORDERING CLAUSES
1. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's Rules, Telefutura Partnership of Douglas is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for violating Section 11.35
of the Commission's Rules.
2. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Telefutura Partnership
of Douglas SHALL PAY the full amount of the proposed forfeiture, or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
3. 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 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 if block number 23A (call
sign/other ID), and enter the letters "FORF" in block 24A (payment
type code). Requests for full payment under an installment plan
should be sent to: Chief Financial Officer - Financial Operations,
445 12th St., S.W., Room 1-A625, Washington, DC 20554. If you have
any questions, please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is
made, violator will send electronic notification on the date said
payment is made to WR-Response@fcc.gov.
4. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego Office,
4542 Ruffner Street, Suite 370, San Diego, California, 92111, and
must include the NAL/Acct. No. referenced above.
5. 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 ("GAAP"); 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.
6. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent by Certified Mail, Return
Receipt Requested, and regular mail, to Telefutura Partnership of
Douglas, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
47 C.F.R. S: 11.35.
47 U.S.C. S: 503(b).
47 C.F.R. S: 11.33(a). The EAS decoder must at a minimum be capable of
decoding the EAS protocol described in 47 C.F.R. S: 11.31.
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term `willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated,' when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S:S: 11.11, 11.41.
47 C.F.R. S:S: 11.1, 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) - (b).
47 C.F.R. S: 11.61(a)(1) - (2). The required monthly and weekly tests must
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, 73.1840.
Additionally, no request was sent to the District Director of the San
Diego Office notifying the office of the defective equipment and
requesting additional time to repair the equipment, as required pursuant
to Section 11.35(c) of the Rules. 47 C.F.R. S: 11.35(c).
47 C.F.R. S: 11.51(c).
After the inspection, Telefutura staff sent an email to the San Diego
agent indicating that the technical problems had been corrected. We note
that the Commission has stated in the past 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. See e.g., AT&T Wireless Services, Inc. 17 FCC Rcd 21866,
21871-76 (2002).
47 C.F.R. S: 503(b)(2)(E).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80, 11.35.
See 47 C.F.R. S: 1.1914
Federal Communications Commission DA 10-796
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Federal Communications Commission DA 10-796