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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-FIELDSCR-12-00001738
Inter-city Christian Youth )
Program, Inc. NAL/Acct. No.: 201232540008
)
Licensee of Station KCYP-LP FRN: 0016085474
)
Mission, Texas Facility ID No.: 135621
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: August 15, 2012 Released: August 15, 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 Inter-city Christian Youth Program, Inc. (ICYP), licensee
of low power FM Station KCYP-LP in Mission, Texas (Station),
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
ICYP is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000). In addition, we direct ICYP to submit, no
later than thirty (30) calendar days from the release date of this
NAL, a statement signed under penalty of perjury stating that Station
KCYP-LP now complies with the Commission's
EAS requirements.
II. BACKGROUND
2. On March 29, 2012, in response to a complaint that Station KCYP-LP did
not have operational EAS equipment, an agent from the Enforcement
Bureau's Houston Office (Houston Office) inspected the Station in
Mission, Texas. The agent observed that the Station did not have EAS
equipment installed and operational at its main studio. The Station's
manager, who accompanied the agent during the inspection, stated that
Station KCYP-LP has operated without EAS equipment since the Station
began operations in August 2007. The Station's manager was also unable
to provide any EAS logs for the Station.
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. 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 key EAS 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 are installed and operational so
that the monitoring and transmitting functions are available during
the times the station is in operation. Section 73.1820(a)(1)(iii) of
the Rules requires licensees to create an entry for each test and
activation of the EAS in the station log or in a special EAS log. On
March 29, 2012, an agent from the Houston Office inspected Station
KCYP-LP and observed that the Station did not have EAS equipment
installed while it was in operation. In addition, the Station could
not provide any evidence or EAS logs documenting that it had
operational EAS equipment installed or that it had ever conducted any
of the required weekly or monthly EAS tests. In fact, the Station
manager stated to the agent during the inspection that Station KCYP-LP
has operated without installed EAS equipment since the Station began
operations in August 2007. Based on the evidence before us, we find
that ICYP 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. Given the totality of the
circumstances, including the duration of the violation, we find an
upward adjustment in the amount of $2,000 is warranted. Applying the
Forfeiture Policy Statement, Section 1.80 of the Rules, and the
statutory factors to the instant case, we conclude that ICYP is
apparently liable for a total forfeiture of $10,000.
7. We direct ICYP to submit a written statement, pursuant to Section 1.16
of the Rules, signed under penalty of perjury by an officer or
director of ICYP, stating that operational EAS equipment has been
installed at Station KCYP-LP and that the Station 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, Inter-city Christian
Youth Program, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of ten thousand dollars ($10,000) 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,
Inter-city Christian Youth Program, 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 Inter-city Christian Youth Program, 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. Inter-city Christian Youth Program, 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. Inter-city Christian Youth Program, Inc.
shall also send electronic notification on the date said payment is
made to SCR-Response@fcc.gov. 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.
Inter-city Christian Youth Program, Inc. also shall e-mail 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 Inter-city Christian Youth
Program, Inc. at RT. 1, Box 1050, Mission, Texas 78572.
FEDERAL COMMUNICATIONS COMMISSION
Lee R. Browning
Resident Agent
Houston 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, 11.41.
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). Low power FM stations are not required to have an
EAS encoder. See 47 C.F.R. S: 11.11(a).
47 C.F.R. S: 73.1820(a)(1)(iii). See also 47 C.F.R. S: 11.35 (requiring
licensees to record in EAS log the cause of any failure to receive any EAS
tests and when defective EAS equipment is removed from service).
See 47 C.F.R. S: 11.61.
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., St. George Cable, Inc., Forfeiture Order, 26 FCC Rcd 16027
(Enf. Bur. 2011) (imposing an upward adjustment of $4,500 for cable system
that had not installed EAS equipment as of 2002) (forfeiture not paid);
Richards TV Cable Co., Inc., Notice of Apparent Liability for Forfeiture
and Order, 27 FCC Rcd 1520 (Enf. Bur. 2012) (proposing upward adjustment
of $2,000 for cable system that failed to install EAS equipment from 2008
until 2011, despite being warned to do so).
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).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1326
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Federal Communications Commission DA 12-1326