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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of JCE Licenses, LLC Licensee of Station KBXD-AM, Dallas,
Texas ) ) ) ) ) ) ) File No.: EB-FIELDSCR-13-00006553 NAL/Acct. No.:
201432500004 FRN: 0010210433 Facility ID No.: 57375
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: February 19, 2013 Released: February 19, 2013
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 JCE Licenses, LLC (JCE), licensee of Station KBXD-AM
(Station) in Dallas, Texas, 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 logs. We conclude that JCE is apparently liable for a forfeiture
in the amount of nine thousand dollars ($9,000). In addition, no
later than thirty (30) calendar days from the release date of this
NAL, JCE must submit a statement signed under penalty of perjury
stating that Station KBXD-AM is in full compliance with the
Commission's EAS requirements.
II. BACKGROUND
2. On January 17, 2013, an agent from the Dallas Office, accompanied by
the Station's general manager, inspected Station KBXD-AM's main studio
in Dallas, Texas, and observed, when the station was in operation,
that the Station had no installed EAS equipment. The Station's general
manager admitted that the Station had been without operational EAS
equipment since the Station returned to the air in late November 2012.
The Station also did not have any EAS logs, documenting when the last
EAS tests were transmitted or received.^
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 EAS Equipment and Logs
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 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 states that 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.^ Section 11.35(a) also requires EAS participants to
record in station logs the reasons why any EAS tests were not
received.^ On January 17, 2013, an agent from the Dallas Office
observed that Station KBXD-AM did not have operational EAS equipment
when the Station was on the air, and did not have any EAS logs that
documented when the equipment was last operational. The Station's
general manager confirmed that the Station had been without
operational EAS equipment since November 2012. Station KVOL-AM,
however, maintained no logs or records explaining why the Station
failed to receive any EAS tests since November 2012.^ Therefore, based
on the evidence before us, we find that JCE apparently willfully and
repeatedly violated Section 11.35(a) of the Rules by failing to
maintain operational EAS equipment and logs.
B. Proposed Forfeiture 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 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.^ In doing so, we find that JCE's failure to maintain any
EAS logs warrants an upward adjustment of $1,000.^ Applying the
Forfeiture Policy Statement, Section 1.80 of the Rules, and the
statutory factors to the instant case, we conclude that JCE is
apparently liable for a total forfeiture of $9,000 for failing to
maintain operational EAS equipment and logs.
7. We direct JCE to submit a written statement, pursuant to Section 1.16
of the Rules,^ signed under penalty of perjury by an officer or
director of JCE, stating that Station KBXD-AM is in full compliance
with the Commission's EAS requirements. This statement must be
provided to the Dallas Office at the address listed in paragraph 10,
below, 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, JCE Licenses, LLC is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of nine thousand dollars ($9,000) for violations 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,
JCE Licenses, LLC 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 JCE Licenses, LLC SHALL SUBMIT a written
statement, as described in paragraph 7, 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. JCE
shall also e-mail the written statement to [1]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. JCE Licenses, LLC will 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 making full payment over time 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,
[2]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 1.16 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,
Texas 75243, and include the NAL/Acct. No. referenced in the caption.
JCE Licenses, LLC 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 principles (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 JCE Licenses, LLC at 2100
Park Central Blvd. N, Suite 100, Pompano Beach, Florida 33064.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director
Dallas Office
South Central Region
Enforcement Bureau
^ 47 C.F.R. S 11.35(a).
^ The Station had no evidence that it had operational EAS equipment
installed any time prior to the inspection. Moreover, there was no
evidence that any prior EAS equipment had been removed for repair or
replacement prior to the inspection. Therefore, Section 11.35(b) of the
Rules, which permits licensees to operate for 60 days without operational
EAS equipment, pending its repair or replacement, does not apply. See 47
C.F.R. S 11.35(b).
^ 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., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388, para. 5 (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, para. 9.
^ 47 C.F.R. SS 11.11, 11.41.
^ 47 C.F.R. SS 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 also 47 C.F.R. S 73.1820(a)(1)(iiii) (requiring
licensees to create an entry for each test and activation of the EAS in
the station log or in a special EAS log). If Station KBXD-AM had
operational EAS equipment prior to November 2012, it failed to log any
successful EAS tests.
^ 47 C.F.R. S 11.35(a). See also 47 C.F.R. S 11.35(b) (requiring licensees
to record when defective EAS equipment is removed from service).
^ For example, Station KBXD-AM could have noted in its station log that it
failed to receive EAS tests after it resumed operations in November 2012,
because its EAS equipment was not installed.
^ 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., Pittman Broadcasting Services, LLC, Notice of Apparent
Liability for Forfeiture and Order, 28 FCC Rcd 7980 (Enf. Bur. 2013)
(imposing $1,000 upward adjustment for failure to maintain EAS logs);
Iglesia Cristiana Ebenezer of Greenville, Texas, Notice of Apparent
Liability for Forfeiture and Order, 28 FCC Rcd 6300 (Enf. Bur. 2013).
^ 47 C.F.R. S 1.16.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204(b), 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. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 14-198
5
Federal Communications Commission DA 14-198
References
Visible links
1. mailto:SCR-Response@fcc.gov
2. mailto:ARINQUIRIES@fcc.gov