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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-99-ST-404
)
KXLE, Inc. ) NAL/Acct. No. 915ST0008
KXLE(AM) & KXLE-FM )
Ellensburg, Washington )
)
FORFEITURE ORDER
Adopted: March 14, 2000 Released: March 15, 2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000) against KXLE, Inc., ("KXLE"), licensee of Stations
KXLE(AM) and KXLE-FM, Ellensburg, Washington, for willful
violation of Section 11.35 of the Commission's Rules ("Rules").1
The noted violation involves the failure of KXLE to keep the
Emergency Alert System ("EAS") equipment for Stations KXLE(AM)
and KXLE-FM operational.
2. On June 24, 1999, the District Director of the FCC's
Seattle, Washington Field Office ("Field Office") issued a Notice
of Apparent Liability for Forfeiture (``NAL'') in the amount of
eight thousand dollars ($8,000).2 KXLE filed a response on July
26, 1999.3
II. BACKGROUND
3. On March 9, 1999, an agent from the Field Office
conducted an inspection of Stations KXLE(AM) and KXLE-FM, which
was limited to the EAS system, tower registration, and public
file requirements. The inspection resulted in the issuance of a
Notice of Violation ("NOV") on April 21, 1999, for violations
concerning the EAS system, the stations' public files and tower
registration. KXLE responded to the NOV on May 27, 1999,
indicating that all the violations had been corrected. Upon
reviewing KXLE's response to the NOV, the Field Office issued an
NAL for failure to keep the EAS equipment operational for both
the AM and the FM stations.
4. In response to the NAL, the licensee sent the FCC a
letter asking that the staff re-evaluate the forfeiture amount
because: KXLE(AM) had been compliant with the EAS rules since
April 1998, but the equipment was dismantled for repair on the
day of the inspection; management did not know that KXLE-FM was
required to relay EAS alerts; the misunderstanding regarding
KXLE-FM's equipment was corrected as soon as it became known; and
the amount of the forfeiture is beyond the stations' financial
means.
III. DISCUSSION
5. We do not believe that KXLE has presented sufficient
reasons to justify reducing the forfeiture amount. Even if the
AM equipment had been dismantled for repair on the day of
inspection, as KXLE claims, we believe an $8,000 forfeiture
amount for the inoperable EAS equipment for the FM station alone
is appropriate. See The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied,
FCC 99-407, released December 28, 1999 (base amount of $8,000 for
EAS violation).
6. Further, KXLE claims that its lack of knowledge of
required EAS testing for the FM station warrants reducing the
forfeiture amount. Commission licensees are responsible for
knowing and adhering to the statutes and rules that apply to
them. Lack of knowledge of those statutes and rules is not
sufficient justification for reducing a forfeiture imposed for
violating them. See Sitka Broadcasting Company, Inc., 70 FCC 2d
2375, 2378 (1979).
7. KXLE also requests mitigation of the forfeiture amount
because it corrected the violation as soon as it was made aware
of it. Though it appears that the violation was rectified
promptly after the inspection, remedial action to correct a
violation, although commendable, will not nullify a forfeiture
penalty. See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
8. Finally, KXLE asserts that the monetary fine imposed
upon it is beyond its financial means. The NAL sent to KXLE
clearly stated that claims of inability to pay should be
supported by tax returns or other financial statements prepared
under generally accepted accounting procedures for the most
recent three-year period.4 Because KXLE did not provide
financial information upon which we can make a determination as
to its ability to pay the forfeiture, we must deny the request
for reduction. See Liability of Maccau Traders , Inc., 13 FCC
Rcd 228 (1998).
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"),5
and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,6 KXLE,
Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of eight
thousand dollars ($8,000) for violating Section 11.35 of the
Rules requiring that a broadcast station's EAS equipment be kept
operational.
10. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules,7 within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.8
Payment may be made by credit card through the Commission's
Credit and Debt Management Center at (202) 418-1995 or by mailing
a check or similar instrument, payable to the order of the
"Federal Communications Commission," to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note NAL/Acct. No. 915ST0008.
Requests for full payment under an installment plan should be
sent to: Chief, Credit and Debt Management Center, 445 12th
Street, S.W., Washington, D.C. 20554.9
11. IT IS FURTHER ORDERED that, a copy of this Forfeiture
Order shall be sent by Certified Mail Return Receipt Requested to
KXLE, Inc., at 1311 Vantage Highway, Attn: Brad Tacher, GM,
Ellensburg, Washington 98926.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 11.35.
2 Notice of Apparent Liability, NAL/Acct. No. 915ST0008
(released June 24, 1999).
3 KXLE's response was timely filed but misdirected. The
staff was not aware of a response being filed and issued a "no
response" Forfeiture Order, DA 99-1982 (released September 27,
1999). The Forfeiture Order was set aside by letter on October
18, 1999, after the staff became aware of the response.
4 Notice of Apparent Liability at footnote 2.
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 504(a).
9 See 47 C.F.R. § 1.1914.