Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Lazer Broadcasting Corporation ) File No. EB-04-SD-135
)
Licensee of Station KXRS ) NAL/Acct. No.
Hemet, California ) 200532940001
Facility ID #36829 )
FRN: 0000-0134-66
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 25, 2005
By the District Director, San Diego District Office, Western
Region, Enforcement Bureau:
I. INTRODUCTION
1.1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Lazer Broadcasting
Corporation (``Lazer''), the licensee of FM Broadcast radio
station KXRS in Hemet, California, apparently willfully and
repeatedly violated Section 11.35 of the Commission's Rules
(``Rules''),1 by failing to maintain operational EAS equipment.
We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended (``Act''),2 that Lazer is apparently
liable for a forfeiture in the amount of eight thousand dollars
($8,000).
II. BACKGROUND
1.2. On July 30, 2004, agents from the Federal
Communications Commission's (``FCC'') San Diego Office conducted
an EAS inspection at the main studio of KXRS located at 2627
West Florida Avenue, Suite 109, Hemet, California. Although EAS
equipment was installed, the agents found that it was not
operational at the time of inspection. No audio from the EAS
receivers for the designated first and second local primary
stations (LP-1 and LP-2) could be heard. In addition, at the
request of the agents, the LP-1 station ran a required weekly
test (``RWT'') during the inspection and the station's EAS
equipment could not detect the activation. The Chief Operator
of KXRS advised the agents that the station's EAS printouts
served as its EAS log for the required received and transmitted
EAS tests. The EAS printouts generated by the EAS
Encoder/Decoder indicated that from December 18, 2003 through
July 30, 2004, KXRS did not receive or transmit any required
monthly tests (``RMTs'')and transmitted only two RWTs.
Specifically, from December 18, 2003, through July 30, 2004, the
day of the inspection, there were no logs of any RMTs being
received or transmitted. The printouts that were available
indicated that the LP-2 station was not being monitored and that
no RWT from the LP-1 station was received during this period of
time. No log entries existed in any station log identifying the
cause of any equipment failures or any actions taken to remedy
any equipment failures.
1.3. On October 25, 2004, the FCC's San Diego office
sent a letter of inquiry (``LOI'') to Lazer concerning the
operation and condition of the KXRS EAS equipment and questioned
the station's recordkeeping of outages and repairs.3 In its
response to the LOI, Lazer admitted that the power supply of
their EAS equipment failed in the ``fall of 2003 rendering the
EAS unit inoperable until the new power supply was restored on
approximately August 1, 2004.''4 Lazer also acknowledged that
it did not make a request to the local FCC office to operate
without EAS equipment beyond 60 days as required by Section
11.35(c) of the Rules.5 Finally, Lazer also admitted that their
Chief Operator did not keep appropriate records of the EAS tests
or repairs.
III. DISCUSSION
1.4. Section 503(b) of the Act provides that any person
who willfully fails to comply substantially with the terms and
conditions of any license, or willfully 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. The term ``willful'' as used in Section
503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly.6 The term ``repeated'' means
the commission or omission of such act more than once or for
more than one day.7
1.5. The Rules provide that every AM and FM 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 not participate.8 The EAS
provides the President and state and local governments with the
capability to provide immediate and emergency communications and
information to the general public.9 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.10 Required monthly and weekly tests originate from
EAS Local or State Primary sources and must be retransmitted by
the participating station.
1.6. Section 11.35 of the Rules requires all broadcast
stations to ensure that EAS encoders, EAS decoders and attention
signal generating and receiving equipment is 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.11
1.7. Section 11.61(a)(1) and (2) of the Rules requires
broadcast stations to (a) receive monthly EAS tests from
designated local primary EAS sources and retransmit the monthly
test within 60 minutes of its receipt and (b) conduct tests of
the EAS header and EOM codes at least once a week at random days
and times.12 The requirement that stations monitor, receive and
retransmit the required EAS tests ensures the operational
integrity of the EAS system in the event of an actual disaster.
Appropriate entries must be made in the broadcast station log as
specified in Sections 73.1820 and 73.1840 of this chapter [...]
indicating reasons why any tests were not received or
transmitted.13
1.8. A comprehensive review of the station log for the
period beginning December 18, 2003 through July 30, 2004,
revealed that KXRS did not receive or transmit any RMTs from the
designated LP-1 and LP-2 stations. Additionally, no RWTs were
received and only two RWTs were transmitted during this period
of time. There were no appropriate entries made in the station
log to indicate reasons why tests were not received or
transmitted. In response to the letter of inquiry sent by the
San Diego Office, Lazer admitted that the Chief Operator of KXRS
did not keep appropriate records of the EAS tests, nor were
records kept explaining any repairs or discrepancies. The
response also stated that the power supply for the KXRS EAS
equipment failed in the fall of 2003, and rendered the EAS unit
inoperable until the power supply was restored on approximately
August 1, 2004. Lazer was aware in the fall of 2003 that its
EAS equipment was inoperable and that the equipment was failing
to receive or transmit the required monthly and weekly tests.
Consequently, Lazer's violation was willful. Lazer's violation
occurred on more than one day, therefore, it was repeated.
Based on the evidence before us, we find that Lazer apparently
willfully and repeatedly violated Section 11.35 of the Rules, by
failing to maintain operational EAS equipment.
1.9. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement'') and
Section 1.80(b)(4) of the Rules sets forth the base forfeiture
amounts for various violations of the Commission's Rules. The
base forfeiture 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)(D) of the Act, which include the nature,
circumstances, extent, and gravity of the violation, and with
respect to the violator, the degree of culpability, and any
history of prior offenses, ability to pay, and other such
matters as justice may require.14 Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors, we
conclude that Lazer is apparently liable for a forfeiture in the
amount of $8,000.
IV. ORDERING CLAUSES
1.10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
and Sections 0.111, 0.311 and 1.80 of the Commission's Rules,
Lazer Broadcasting Corporation is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of eight
thousand dollars ($8,000) for violating Section 11.35 of the
Commission's Rules.15
1.11. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Commission's Rules, within thirty days of the
release date of this Notice of Apparent Liability for
Forfeiture, Lazer Broadcasting Corporation, SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
1.12. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
1.13. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
San Diego Office, 4542 Ruffner Street - Suite 370, San Diego,
California 92111 and must include the NAL/Acct. No. referenced
in the caption.
1.14. 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.
1.15. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an installment
plan should be sent to: Chief, Revenue and Receivable Operation
Group, 445 12th Street, S.W., Washington, D.C. 20554.16
1.16. IT IS FURTHER ORDERED that this Notice of Apparent
Liability for Forfeiture shall be sent, by Certified Mail,
Return Receipt Requested, and regular mail, to Lazer
Broadcasting Corporation, 2627 W. Florida Avenue, Suite 109,
Hemet, CA 92545.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director
San Diego District Office
Western Region
Enforcement Bureau
_________________________
147 C.F.R. § 11.35.
247 U.S.C. § 503(b).
3Letter from William R. Zears, FCC San Diego District Office to
Lazer Broadcasting Corporation (October 25, 2004).
4Letter from Lazer Broadcasting Corporation, to William R. Zears,
District Director, San Diego Office (November 8, 2004).
547 C.F.R. § 11.35(c).
6Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
7Section 312(f)(2) of the Act, 47 U.S.C. § 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.''
847 C.F.R. §§ 11.11 and 11.41.
947 C.F.R. §§ 11.1 and 11.21.
1047 C.F.R. § 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.
1147 C.F.R. § 11.35(a) and (b).
12The required monthly and weekly tests are required to conform
to the procedures in the EAS Operational Handbook. See also,
Amendment of Part 11 of the Commission's Rules Regarding the
Emergency Alert System, EB Docket No. 01-66, Report and Order,
FCC 02-64 (Feb. 26, 2002); 67 Fed Reg 18502 (April 16, 2002)
(effective May 16, 2002, the required monthly EAS test must be
retransmitted within 60 minutes of receipt).
1347 C.F.R. §§ 73.1820 and 73.1840.
1447 U.S.C. § 503(b)(2)(D).
1547 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, and 11.35.
16See 47 C.F.R. § 1.1914.