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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                    )                                
                                                                     
                                    )                                
     In the Matter of                   File No.: EB-11-SD-0125      
                                    )                                
     Rosendo Casarez, Jr.               NAL/Acct. No.: 201232940002  
                                    )                                
     Licensee of Station KCRX(AM)       FRN: 0006903041              
                                    )                                
     Roswell, NM                        Facility ID No.: 57700       
                                    )                                
                                                                     
                                    )                                



             NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

   Adopted: January 30, 2012 Released: January 31, 2012

   By the District Director, San Diego Office, Western Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
       we find that Rosendo Casarez, Jr. (Casarez), licensee of Station
       KCRX(AM), in Roswell, New Mexico, apparently willfully and repeatedly
       violated Section 11.35 of the Commission's rules (Rules) by failing to
       ensure the operational readiness of the Station KCRX(AM) Emergency
       Alert System (EAS) equipment. We conclude that Casarez is apparently
       liable for a forfeiture in the amount of eight thousand dollars
       ($8,000). In addition, we direct Casarez to submit, no later than
       thirty (30) calendar days from the date of this NAL, a statement
       signed under penalty of perjury stating that the Station KCRX(AM) EAS
       equipment is operating consistent with Section 11.35 of the Rules.

   II. BACKGROUND

    2. On June 21, 2011, an agent from the Enforcement Bureau's San Diego
       Office (San Diego Office) conducted an inspection at Station
       KCRX(AM)'s main studio located in Roswell, New Mexico. The agent
       observed that although Station KCRX(AM) had EAS equipment, the
       equipment was not installed and not operational. Specifically, the
       equipment was not capable of receiving the required tests and Casarez
       was unable to produce any documentation, logs, or records for the
       agent showing that required EAS weekly or monthly tests had been sent
       or received. Casarez also informed the agent that the station's EAS
       equipment had not been operational since approximately eight months
       prior, when the EAS equipment was damaged due to water leaking into
       the station's main studio after a heavy rain storm.

   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 Section 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 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.

    5. 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. 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.  

    6. On June 21, 2011, an agent from the San Diego Office inspected Station
       KCRX(AM)'s EAS equipment and found that it was not operational. The
       EAS equipment was unable to receive the required tests and Casarez,
       the Station KCRX(AM) licensee, was unable to produce documentation,
       logs, or records concerning EAS tests successfully or unsuccessfully
       received or sent. Casarez acknowledged to the San Diego agent that the
       Station KCRX(AM) EAS equipment had not been operational since heavy
       rain storms leaked through the roof of the station's main studio
       approximately eight months prior to the inspection. Based on the
       evidence before us, we find that Casarez apparently willfully and
       repeatedly violated Section 11.35 of the Rules by failing to ensure
       the operational readiness of the Station KCRX(AM) EAS equipment.

     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
       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. Applying the Forfeiture Policy Statement, Section 1.80 of
       the Rules, and the statutory factors to the instant case, we conclude
       that Casarez is apparently liable for a forfeiture of $8,000 for his
       violation of Section 11.35 of the Rules.

    8. We further order Casarez to submit a written statement pursuant to
       Section 1.16 of the Rules signed under penalty of perjury by Casarez
       stating  that Station KCRX(AM) is now in compliance with Section 11.35
       of the Rules. This statement must be provided to the San Diego Office
       at the address listed in paragraph 11 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, Rosendo Casarez,
       Jr., 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 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,
       Rosendo Casarez, Jr., 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 Rosendo Casarez, Jr., 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, Western  Region, San
       Diego Office, 4542 Ruffner Street, Rm. 370, San Diego, CA, 92111.
       Casarez shall also email the written statement to 
       WR-Response@fcc.gov.

   12. 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 Account Number and FRN
       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.   If you have questions regarding payment
       procedures, please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Casarez will also send
       electronic notification on the date said payment is made to
       WR-Response@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, Western 
       Region, San Diego Office, 4542 Ruffner Street, Rm. 370, San Diego, CA,
       92111, and include the NAL/Acct. No. referenced in the caption.
       Casarez shall also email the written response to  WR-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 regular mail, to Rosendo Casarez, Jr., P.O. Box
       2052, Roswell, NM 88201.

   FEDERAL COMMUNICATIONS COMMISSION

   James T. Lyon

   District Director

   San Diego Office

   Western Region

   Enforcement Bureau

   47 C.F.R. S: 11.35.

   See 47 C.F.R. S: 11.61(a)(1) ("Required Monthly Tests of the EAS header
   codes, Attention Signal, Test Script and [End of Message] code . . . .
   must be transmitted with in 60 minutes of receipt by EAS Participants in
   an EAS Local Area or State."); 47 C.F.R. S: 11.61(a)(2) ("Required Weekly
   Tests: . . . Analog and digital AM, FM and TV broadcast stations must
   conduct tests of the EAS header and [End of Message] codes at least once a
   week at random days and times").

   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.

   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.

   47 C.F.R. S: 11.35(a) - (b). An EAS Participant may operate without the
   defective equipment pending its repair or replacement for 60 days without
   further FCC authority. See 47 C.F.R. S: 11.35(b). If the repair or
   replacement of defective equipment is not completed within 60 days, an EAS
   Participant shall submit an informal request to the District Director of
   the local FCC field office for additional time to repair the defective
   equipment. See 47 C.F.R. S: 11.35(c). No such request was submitted by
   Casarez to the San Diego Office.

   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).

   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.

   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 12-109

                                       2

   Federal Communications Commission DA 12-109