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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
North County Broadcasting
Corporation ) File No.: EB-10-SD-0028
Licensee of Station KFSD ) NAL/Acct. No.: 201132940002
Escondido, California ) FRN: 0003770757
Facility ID #49205 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 11, 2011 Released: January 13, 2011
By the Acting District Director, San Diego Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that North County Broadcasting Corporation ("NCBC"), the licensee of
AM broadcast station KFSD(AM) in Escondido, California, apparently
willfully and repeatedly violated Section 11.35 of the Commission's
Rules ("Rules") by failing to ensure the operational readiness of
Station KFSD's Emergency Alert System ("EAS") equipment. We conclude
that NCBC is apparently liable for a forfeiture in the amount of six
thousand dollars ($6,000).
II. BACKGROUND
1. On March 18, 2010, agents from the Enforcement Bureau's San Diego
Office conducted an inspection of Station KFSD's main studio, located
at 1835 Aston Avenue, Carlsbad, California. The agents observed that
Station KFSD's EAS equipment was shared with the licensee's
co-located Station KCEO(AM). The agents also observed that Station
KFSD's EAS equipment was not operating properly at the time of
inspection. Specifically, the EAS equipment was capable of
transmitting a required weekly test ("RWT") for Station KCEO, but it
was not capable of transmitting a RWT for Station KFSD. A review of
the EAS logs for Stations KCEO and KFSD indicated that in December
2009, and again in February 2010, Station KFSD's chief engineer was
contacted by the operator on duty at Station KFSD concerning problems
with Station KFSD's EAS equipment and its failure to re-transmit the
required monthly tests ("RMTs"). During the inspection, an NCBC staff
person acknowledged that Station KFSD's EAS equipment connection had
been experiencing problems sending RWTs and RMTs since early December
2009.
2. On March 31, 2010, the San Diego Office sent a letter of inquiry
("LOI") to NCBC concerning the operational status of Station KFSD's
EAS equipment. In its response, NCBC acknowledged that Station KFSD's
EAS equipment, specifically the audio link, was not functioning
properly from December 2009 until April 8, 2010. NCBC explained that
when the operator on duty contacted the Station KFSD chief engineer
in December about the failure of the audio link, the chief engineer
initially believed that the station's EAS equipment problems were
intermittent. When notified again in February by Station KFSD staff
of EAS failures, the chief engineer performed a complete inspection
of the equipment and exchanged controlling links between pieces of
the equipment. The next week, in early March, the chief engineer
inspected the wiring between the pieces of equipment and the audio
paths, as well as tested recently purchased pieces of equipment in an
attempt to resolve the continuing EAS failures. NCBC also stated that
after the San Diego Office's inspection on March 18, 2010, the
engineer submitted the equipment for repair and it was determined
that a power supply filter capacitor had "finally dried up" and had
gone from causing intermittent failure to total failure of the audio
link. NCBC also stated that the equipment was repaired as of April 8,
2010.
III. DISCUSSION
1. Section 503(b) of the Communications Act of 1934, as amended ("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 licensees.
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 are 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. Furthermore, Section 11.61(a)(1) and (2) of the
Rules require 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 End of Message 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 of the Rules, indicating reasons why
any tests were not received
or transmitted.
4. As discussed above, a March 18, 2010, Bureau inspection of Station
KFSD's EAS equipment revealed that the equipment was not operational.
Specifically, the audio link for Station KFSD's EAS equipment was not
functioning, and this prohibited the station from transmitting a RWT
and retransmitting a RMT. The Bureau's investigation further revealed
that Station KFSD's EAS equipment had failed to function properly
since December 2009, and that effective repairs were not made until
April 2010. Thus, based on the evidence before us, we find that NCBC
apparently willfully and repeatedly violated Section 11.35 of the
Rules by failing to ensure the operational readiness of Station
KFSD's
EAS equipment.
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture for EAS equipment that is 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, any history
of prior offenses, ability to pay, and other such matters as justice
may require. As discussed above, NCBC initiated good faith efforts,
albeit unsuccessfully, to troubleshoot the EAS equipment failures
prior to the Bureau's inspection. Therefore, pursuant to established
precedent, we find that a reduction of the proposed forfeiture is
warranted. However, we caution NCBC that future violations of the
Rules may subject it to more severe enforcement penalties. Applying
the Forfeiture Policy Statement, Section 1.80 of the Rules, and the
statutory factors to the instant case, we conclude that North County
Broadcasting Corporation is apparently liable for a forfeiture in the
amount of $6,000.
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, North County Broadcasting Corporation
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of six thousand dollars ($6,000) for apparently willfully and
repeatedly 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, North County
Broadcasting Corporation 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 credit card, 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. North County
Broadcasting Corporation shall also send electronic notification on
the date said payment is made to WR-Response@fcc.gov
4. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual
statement supported by appropriate documentation and affidavits
pursuant to Sections 1.80(f)(3) and 1.16 of the Rules. The written
statement 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 in the caption. The statement shall also be
emailed to WR-Response@fcc.gov.
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 both Certified Mail, Return
Receipt Requested, and regular mail, to North County Broadcasting
Corporation, 1835 Aston Avenue, Carlsbad, CA, 92008.
FEDERAL COMMUNICATIONS COMMISSION
James T. Lyon
Acting District Director
San Diego Office
Western Region
Enforcement Bureau
47 C.F.R. S: 11.35.
See Letter of Inquiry from William R. Zears, Jr., District Director, San
Diego Office, Western Region, Enforcement Bureau, to North County
Broadcasting Corporation, dated March 31, 2010.
See Letter from Susan E. Burke, Secretary, North County Broadcast
Corporation, to William R. Zears, Jr., District Director, San Diego
Office, Western Region, Enforcement Bureau, dated April 19, 2010 ("LOI
Response").
LOI Response at 2.
Id.
Id.
47 U.S.C. S: 503(b).
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, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
FCC Rcd 3454 (1992).
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.
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.
LOI Response at 2.
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 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 C.F.R. S: 503(b)(2)(E).
See, e.g., Sutro Corporation, Memorandum Opinion and Order, 19 FCC Rcd
15274, 15277 (2004) (stating that the Commission has "generally provided
reductions based on the good faith corrective efforts of a violator when
those corrective efforts were taken prior to Commission notification of
the violation"); Radio One Licenses, Inc., Memorandum Opinion and Order,
17 FCC Rcd 20408 (EB 2002), review granted in part and denied in part, 18
FCC Rcd 15964 (2003) (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).
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 11-48
3
Federal Communications Commission DA XX-XXXX