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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No.: EB-11-DL-0058
PBI, LLC
) NAL/Acct. No.: 201232500005
Licensee of Stations KDDD(AM) and
KDDD-FM, ) Facility ID No.: 74311
Dumas, TX ) FRN: 0015162472
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 5, 2012 Released: July 5, 2012
By the District Director, Dallas Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that PBI, LLC, licensee of Stations KDDD(AM) and KDDD-FM, in
Dumas, Texas (PBI), apparently willfully and repeatedly violated
Section 11.35(a) of the Commission's rules (Rules), by failing to
maintain operational emergency alert system (EAS) equipment and
failing to keep records indicating why EAS tests were not received. We
conclude that PBI, LLC is apparently liable for a forfeiture in the
amount of eight thousand dollars ($8,000). In addition, we direct PBI
to submit, no later than thirty (30) calendar days from the date of
this NAL, a statement signed under penalty of perjury that it is in
compliance with Section 11.35(a) of the Rules.
II. BACKGROUND
2. On August 16, 2011, agents from the Enforcement Bureau's Dallas Office
(Dallas Office) inspected the main studio of co-located and co-owned
Stations KDDD(AM) and KDDD-FM and observed that the Stations' EAS
system was not fully operational. Although the EAS system was able to
transmit EAS tests, it was unable to receive tests. After a failed
demonstration of the EAS equipment's ability to receive any monitoring
source, PBI's owner stated that there was a problem with the antenna.
According to the Stations' EAS logs, the last EAS test was received on
October 30, 2008, and there were no entries or explanations in the
logs for any missing received tests.
III. DISCUSSION
3. Section 503(b) of the Communications Act of 1934, as amended (Act),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly 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. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful. The term "repeated" means the commission or omission
of such act more than once or for more than one day.
A. Failure to Maintain Operational Readiness of Emergency Alert System
Equipment
4. 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 the 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 the 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 the 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.
5. Section 11.35(a) of the Rules states that all "EAS Participants are
responsible for ensuring that EAS Encoders, EAS Decoders and Attention
Signal generating and receiving equipment used as part of the EAS are
installed so that the monitoring and transmitting functions are
available during the times the stations and systems are in operation.
Additionally, EAS Participants must determine the cause of any failure
to receive the required tests or activations specified in S:
11.61(a)(1) and (a)(2). Appropriate entries indicating reasons why any
tests were not received must be made in the broadcast station log."
6. On August 16, 2011, agents from the Dallas Office inspected the EAS
equipment for co-located and co-owned Stations KDDD(AM) and KDDD-FM
and observed that the equipment was unable to receive tests or a
monitoring source. The most recent received test in the Stations' EAS
logs was October 20, 2008, and there was no other evidence of a more
recent received EAS test. PBI also failed to make entries in any log
explaining why EAS tests were not received after October 20, 2008.
Based on the evidence before us, we find that PBI apparently willfully
and repeatedly violated Section 11.35(a) of the Rules by failing to
ensure the operational readiness of the EAS equipment for Stations
KDDD(AM) and KDDD-FM EAS and failing to explain in station logs why
EAS tests were not received.
A. Proposed Forfeiture Amount and Reporting Requirement
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for EAS equipment not
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.
Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that PBI
is apparently liable for a total forfeiture in the amount of $8,000,
which is consistent with other recent cases involving similar facts.
8. We further order PBI to submit a written statement pursuant to Section
1.16 of the Rules signed under penalty of perjury by PBI stating that
the EAS equipment for Stations KDDD(AM) and KDDD-FM is fully
operational. This statement must be provided to the Dallas Office at
the address listed in paragraph 14 within thirty (30) calendar days of
the release of this NAL.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, PBI, LLC is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
eight thousand dollars ($8,000) for violations of Section 11.35(a) of
the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
PBI, LLC, SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
11. IT IS FURTHER ORDERED that PBI, LLC, SHALL SUBMIT a written statement,
as described in paragraph 8, within thirty (30) calendar days of the
release date of this Notice of Apparent Liability for Forfeiture and
Order. The statement must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Dallas Office,
9330 LBJ Freeway, Suite 1170, Dallas, TX, 75243. PBI, LLC shall also
e-mail the written statement to SCR-Response@fcc.gov.
12. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. PBI, LLC shall send electronic notification
of payment to SCR-Response@fcc.gov on the date said payment is made.
Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID)
and enter the letters "FORF" in block number 24A (payment type
code). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
13. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
14. 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Dallas Office, 9330 LBJ Freeway, Suite 1170, Dallas,
TX, 75243, and include the NAL/Acct. No. referenced in the caption.
PBI, LLC also shall email the written response to
SCR-Response@fcc.gov.
15. 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.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail to PBI, LLC at P.O. Box 396,
Dumas, TX 79029.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director
Dallas Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 11.35(a).
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S:S: 11.11, 11.19, 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: 11.21.
47 C.F.R. S: 11.35(a).
See 47 C.F.R. S: 11.51(l) (allowing co-owned and co-located stations to
provide EAS transmitting requirements with one EAS encoder).
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See, e.g., Upper Peninsula Communications Inc., Forfeiture Order, DA
12-750, 2012 WL 1702799 (Enf. Bur. rel. May 14, 2012) (imposing $8,000
forfeiture for failing to install EAS equipment); Walter M. Czura, Notice
of Apparent Liability for Forfeiture and Order, 27 FCC Rcd 2285 (Enf. Bur.
2012) (proposing $8,000 forfeiture for failing to maintain functioning EAS
equipment); SCI Cable, Inc., Notice of Apparent Liability for Forfeiture
and Order, 26 FCC Rcd 12927 (Enf. Bur. 2011) (proposing $8,000 forfeiture
for failing to install EAS equipment); Spirit Broadcasting, Inc., Notice
of Apparent Liability for Forfeiture and Order, 26 FCC Rcd 10212 (Enf.
Bur. 2011) (proposing $8,000 forfeiture for failing to install EAS
equipment).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
11.35(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-1080
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Federal Communications Commission DA 12-1080