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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Broadcast House of the Pacific Inc. ) File Number: EB-06-HL-074
Licensee of Station KNDI ) NAL/Acct. No.: 200632860001
Honolulu, Hawaii ) FRN: 0003776671
Facility ID # 37065 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 9, 2006
By the Resident Agent, Honolulu Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Broadcast House of the Pacific Inc. ("Broadcast House"), licensee
of AM Broadcast Radio station KNDI, in Honolulu, Hawaii, apparently
repeatedly violated Section 11.35(a) of the Commission's Rules
("Rules") by failing to ensure the operational readiness of KNDI's
Emergency Alert System ("EAS"). We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Broadcast House is apparently liable for a forfeiture in the amount of
eight thousand dollars ($8,000).
II. BACKGROUND
2. On May 1, 2006, and June 1, 2006, agents of the Enforcement Bureau's
Honolulu Office conducted off air monitoring of radio station KNDI on
1270 kHz, in Honolulu, Hawaii. On both days, KNDI did not retransmit
the required monthly test ("RMT") transmitted by the Hawaii State
Civil Defense at approximately 11:15AM HST.
3. On June 14, 2006, agents of the Commission's Honolulu Office conducted
an inspection at the main studio of KNDI located at 1734 South King
Street, Honolulu, Hawaii. EAS equipment was installed but was not
operational at the time of inspection. The operator on duty was not
able to successfully generate a manually-initiated Required Weekly
Test ("RWT"). The EAS receiver was only able to receive an audio
signal from one of the two assigned monitoring sources. A review of
the EAS log and printouts generated by the EAS Encoder/Decoder
indicated that from April through June 2006, there were no RWTs
received on channel one of the EAS equipment. EAS logs also indicated
that no RMTs were retransmitted in April and May 2006. No entries were
made by KNDI staff in the EAS log to identify the causes of these
failures or what steps were taken to remedy any failures.
4. On June 15, 2006, a Honolulu agent spoke with the KNDI contract
engineer. The engineer indicated that he inspected the KNDI EAS
equipment earlier that day and acknowledged that he found problems
with the equipment. Specifically, he indicated that the EAS equipment
had a faulty relay which prevented the unit from transmitting any
tests. Also, the power cord for a portable radio that provided the
audio source for channel one of the EAS equipment was found unplugged
inside the rack, which resulted in no reception of the channel one
monitoring source.
III. DISCUSSION
5. Section 503(b) of the 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. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. 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. 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. 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. Required monthly and weekly tests originate from EAS Local
or State Primary sources and must be retransmitted by the
participating station
7. 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.
8. Section 11.52(d) of the Rules requires broadcast stations to monitor
at least two EAS sources. The monitoring assignments of each broadcast
station are specified in the State EAS Plan and FCC Mapbook. The
requirement that stations monitor at least two EAS sources ensures
redundancy of the EAS system in the event one of the sources fails.
9. 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. 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, indicating reasons
why any tests were not received or transmitted.
10. Monitoring by Honolulu agents, along with a review of the KNDI EAS
logs, revealed that KNDI failed to retransmit the RMTs from April to
June 2006. No entries were made in the KNDI EAS logs to identify the
causes of those failures. An inspection of the KNDI EAS equipment
revealed that the EAS receiver was able to receive an audio signal
from only one of the two assigned monitoring sources. At the time of
the inspection, KNDI personnel were unable to manually initiate a RWT.
The station's engineer later confirmed to a Honolulu agent that the
KNDI EAS equipment had a faulty relay switch which prevented the unit
from transmitting any tests, and that the audio source for channel one
of the EAS equipment was unplugged, which prevented the equipment from
receiving a signal from one of its monitoring sources.
11. Broadcast House's violation occurred on more than one day, therefore,
the violation was repeated. Based on the evidence before us, we find
that Broadcast House apparently repeatedly violated Section 11.35(a)
of the Rules by failing to ensure the operational readiness of the EAS
equipment at KNDI.
12. Pursuant to 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 of the Rules, the
base forfeiture amount for EAS equipment not 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 violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Broadcast House is apparently liable for a
$8,000 forfeiture.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Broadcast House of the
Pacific Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violations of Section 11.35(a), of the Rules.
14. 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, Broadcast House of the
Pacific Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
15. 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
16. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Honolulu Office, P.O.
Box 971030, Waipahu, Hawaii, 96797-1030 and must include the NAL/Acct.
No. referenced in the caption.
17. 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.
18. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Broadcast House of the Pacific Inc.
FEDERAL COMMUNICATIONS COMMISSION
Ryan Hagihara
Resident Agent
Honolulu Office
Western Region
Enforcement Bureau
47 C.F.R. S 11.35(a).
47 U.S.C. S 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
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."
47 C.F.R. SS 11.11 and 11.41.
47 C.F.R. SS 11.1 and 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 11.35(a) and (b).
The 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, 17 FCC Rcd
4055 (2002) (effective May 16, 2002, the required monthly EAS test must be
retransmitted within 60 minutes of receipt).
47 C.F.R. SS 73.1820 and 73.1840.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 11.35(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission