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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-11-HU-0098
In the Matter of
) NAL/Acct. No.:
Bravo Broadcasting Company, Inc. 201232540007
)
Licensee of Station KIRT FRN: 0008720591
)
Mission, Texas Facility ID No.: 56474
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 12, 2012 Released: July 12, 2012
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Bravo Broadcasting Company, Inc. (BBC), licensee of
Station KIRT (Station), in Mission, Texas, apparently willfully and
repeatedly violated Section 11.35(a) of the Commission's rules
(Rules) by failing to install and maintain operational Emergency Alert
System (EAS) equipment. We conclude that BBC is apparently liable for
a forfeiture in the amount of eight thousand dollars ($8,000). In
addition, we direct BBC to submit, no later than thirty (30) calendar
days from the date of this NAL, a statement signed under penalty of
perjury stating that Station KIRT's EAS equipment has been installed
and is operational.
II. BACKGROUND
2. On November 16, 2011, in response to a complaint that Station KIRT did
not have operational EAS equipment, an agent from the Enforcement
Bureau's Houston Office (Houston Office) inspected the Station and
observed no EAS equipment installed at its main studio. The Station
also did not have any EAS logs or any evidence that it ever had
operational EAS equipment. On February 7, 2012, the Houston Office
issued a letter of inquiry (LOI) to BBC, regarding its EAS equipment.
In its response to the LOI, BBC admitted that Station KIRT had been
without operational EAS equipment since August 2009, and stated that
it had purchased new EAS equipment on March 20, 2012.
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 Install and Maintain Operational 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 state and local governments to provide immediate
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 EAS 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.
5. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders, and attention signal
generating and receiving equipment used as part of the EAS are
installed and operational so that the monitoring and transmitting
functions are available during the times the stations are in
operation. On November 16, 2011, an agent from the Houston Office
inspected Station KIRT and observed that the station did not have any
installed EAS equipment. Further, the Station did not have any EAS
logs or any evidence that it ever had operational EAS equipment. BBC
also admitted that Station KIRT had been without EAS equipment since
August 2009. Based on the evidence before us, we find that BBC
apparently willfully and repeatedly violated Section 11.35(a) of the
Rules by failing to install and maintain operational EAS equipment.
B. Proposed Forfeiture Amount and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to have
operational EAS equipment installed 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 BBC is apparently liable for a total
forfeiture of $8,000 for failing to install and maintain operational
EAS equipment, which is consistent with other recent cases involving
similar facts.
7. We direct BBC to submit a written statement, pursuant to Section 1.16
of the Rules, signed under penalty of perjury by an officer or
director of BBC, stating that EAS equipment has been installed and is
operational, and that Station KIRT now complies with the Commission's
EAS rules. This statement must be provided to the Houston Office at
the address listed in paragraph 10 within thirty (30) calendar days of
the release date of this NAL.
IV. ORDERING CLAUSES
8. 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, Bravo Broadcasting
Company, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violation of Section 11.35(a) of the Commission's rules.
9. 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,
Bravo Broadcasting Company, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10. IT IS FURTHER ORDERED that Bravo Broadcasting Company, Inc. SHALL
SUBMIT a statement as described in paragraph 7 to the Houston Office
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, Houston Office, 9597 Jones Road #362, Houston, Texas,
77065. Bravo Broadcasting Company, Inc. shall also e-mail the written
statement to SCR-Response@fcc.gov.
11. 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. Bravo Broadcasting Company, Inc. 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.
12. 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.
13. 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. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Houston Office, 9597 Jones Road #362, Houston, Texas,
77065 and include the NAL/Acct. No. referenced in the caption. Bravo
Broadcasting Company, Inc. also shall email the written response to
SCR-Response@fcc.gov.
14. 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.
15. 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 Bravo Broadcasting
Company, Inc. at P.O. Box 2200, Mission, Texas 78573-0037, and to its
counsel, Daniel A. Kirkpatrick, Fletcher, Heald & Hildreth, 1300 N
17th St., 11th Floor, Arlington, VA 22209-3873.
FEDERAL COMMUNICATIONS COMMISSION
Lee R. Browning
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 11.35(a).
See Letter from Lee R. Browning, Resident Agent, Houston Office, South
Central Region, Enforcement Bureau, to Bravo Broadcasting Company, Inc.
(dated Feb. 7, 2012) (on file in EB-11-HU-0098).
See Letter from Daniel A. Kirkpatrick, Counsel for Bravo Broadcasting
Company, Inc., to Lee. R. Browning, Resident Agent, Houston Office, South
Central Region, Enforcement Bureau at 3-4 (dated Mar. 21, 2012) (on file
in EB-11-HU-0098).
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).
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, 27 FCC
Rcd 5170 (Enf. Bur. 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 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).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1099
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Federal Communications Commission DA 12-1099