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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
North County Broadcasting Corporation
Licensee of Station KFSD(AM)
Escondido, California
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File No.: EB-10-SD-0028
NAL/Acct. No.: 201132940002
FRN: 0003770757
Facility ID No.: 49205
Memorandum opinion and order
Adopted: March 7, 2014 Released: March 10, 2014
By the Chief, Enforcement Bureau:
Introduction
In this Memorandum Opinion and Order (MO&O), issued pursuant to Section 405 of the Communications Act of 1934, as amended (Act), we deny the petition for reconsideration (Petition) filed by North County Broadcasting Corporation (NCBC), licensee of Station KFSD(AM) in Escondido, California, of the Forfeiture Order issued on February 15, 2013. The Forfeiture Order imposed a monetary forfeiture in the amount of four thousand, eight hundred dollars ($4,800) for NCBC's willful and repeated violation of Section 11.35 of the Commission's rules (Rules) for failure to ensure the operational readiness of Station KFSD(AM)'s Emergency Alert System (EAS) equipment.
Background
The Forfeiture Order fully stated the facts of this proceeding so we will not repeat them here. In the Forfeiture Order, the Enforcement Bureau's Western Region (Region) found no merit in NCBC's argument that the NAL cannot be enforced because NCBC is a "small entity" and the Commission has never complied with its obligation under the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) "to adopt a specific policy or program concerning the reduction or waiver of forfeiture for small entities." The Region determined that the Commission had previously held that its policies, as detailed in the Forfeiture Policy Statement, comply with the SBREFA. In particular, the Commission found that, consistent with the SBREFA, its precedent requires consideration of a small entity's ability to pay along with any good faith efforts by the entity to comply with the law. The Commission also confirmed that its "other upward and downward adjustment factors, which are reflective of existing policy, encompass many of the conditions and exclusions listed and . . . SBREFA." The Region noted that NCBC proffered no evidence of its inability to pay the proposed forfeiture and that the Region's San Diego Office already reduced the proposed forfeiture amount after taking into account NCBC's good faith effort to troubleshoot the EAS equipment failure prior to inspection. The Region also noted NCBC's history of compliance with the Rules and reduced the forfeiture from $6,000 to $4,800.
Discussion
Reconsideration is appropriate only where the petitioner either demonstrates a material error or omission in the underlying order or raises additional facts not known or not existing until after the petitioner's last opportunity to present such matters. A petition for reconsideration that simply reiterates arguments that were previously considered and rejected will be denied. We find that NCBC's Petition fails to demonstrate a material error or omission in the Forfeiture Order and reiterates arguments previously presented to and rejected by the Region. We further find that NCBC raises no new facts and presents no new or previously unknown facts in its Petition, but merely reiterates its argument that the Commission "has failed to comply with its obligation under SBREFA to establish a policy or program to provide for the reduction . . . of civil penalties for rule violations by small entities." As discussed in the Forfeiture Order, the Commission dealt with this argument when it amended Section 1.80 of the Rules and released the Forfeiture Policy Statement. We also note that NCBC has produced no new evidence regarding its inability to pay the forfeiture. Therefore, we find that the Petition provides no basis for reconsideration of, further reduction to, or cancellation of the monetary forfeiture assessed against NCBC and affirm the Forfeiture Order.
ordering clauses
Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act, and Section 1.106 of the Rules, the Petition for Reconsideration filed by North County Broadcasting Corporation IS DENIED and the Forfeiture Order, 28 FCC Rcd 1207, issued February 15, 2013, IS AFFIRMED.
IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and Sections 0.111, 0.204, 0.311 and 1.80 of the Rules, North County Broadcasting Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of four thousand, eight hundred dollars ($4,800) for willfully and repeatedly violating Section 11.35 of the Rules.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Rules immediately and no later than thirty (30) calendar days after the release date of this Memorandum Opinion and Order. If the forfeiture is not paid within the period specified, the case may be referred to the U.S. Department of Justice for enforcement of the forfeiture pursuant to Section 504(a) of the Act. North County Broadcasting Corporation shall send electronic notification of payment to WR-Response@fcc.gov on the date said payment is made.
The payment must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above. 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.
Any request for 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, ARINQUIRIES@fcc.gov.
IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be sent by both regular mail and by certified mail, return receipt requested, to North County Broadcasting Corporation at 1563 South State College Boulevard, Anaheim, CA 92806, and to David Tillotson, Esquire, its counsel of record, at 4606 Charleston Terrace, NW, Washington, D.C. 20007-1911.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau