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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Zia Broadcasting Company
)
Licensee of:
) File Numbers: EB-07-DV-054
KCLV(AM)
) EB-07-DV-055
Clovis, New Mexico
) NAL/Acct. No.: 200732800004
Facility ID # 74565
) FRN: 0005035357
KCLV-FM
)
Clovis, New Mexico
)
Facility ID # 74563
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 18, 2007
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Zia Broadcasting Company ("Zia"), licensee of stations KCLV(AM)
and KCLV-FM in Clovis, New Mexico, apparently repeatedly violated
Section 11.35(a) of the Commission's Rules ("Rules") by failing to
ensure the operational readiness of the KCLV(AM) and KCLV-FM Emergency
Alert System ("EAS") equipment. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that Zia
is apparently liable for a forfeiture in the amount of six thousand
dollars ($6,000).
II. BACKGROUND
2. On January 10, 2007, an agent from the Enforcement Bureau's Denver
Office conducted an inspection of KCLV(AM) and KCLV-FM at the
station's main studio location of 2112 North Thornton Street, in
Clovis, New Mexico, during normal business hours. At the time of
inspection, the EAS equipment was shared by both stations and found to
be properly operating. However, a review of the EAS logs showed
missing received and transmitted required monthly tests ("RMT") as
well as missing received required weekly tests ("RWT") for the period
beginning October 2006 through December 2006. The chief engineer
acknowledged to the Denver agent that EAS equipment shared by KCLV(AM)
and KCLV-FM had been having technical problems. Records at the studio
indicated that the Burk EAS unit was sent back to the factory in
December 2006 and returned to service on January 2, 2007. At no point
after discovery of the EAS operational problems did Zia request
permission from the FCC's Denver District Director to operate without
operational EAS equipment.
3. On January 30, 2007, a Denver agent telephoned the general manager for
KCLV (AM) and KCLV-FM and requested additional EAS logs for the
preceding two year period.
4. On February 8, 2007, a copy of the EAS logs was delivered to the
Denver Office. A review of the EAS records revealed a continuing
problem with receiving and retransmitting RMT's and receiving RWT's
for the period from March 2006 through December 2006. In the cover
letter sent with the EAS logs, the Chief Engineer stated that the EAS
unit became partially defective in March 2006. The Chief Engineer also
stated that the EAS unit continued to receive the RWT's and RMT's but
did not print the RWT's and RMT's or log them in the EAS unit. The EAS
logs contained notes made by the Chief Engineer in response to the
Denver Office's inspection stating that the stations' program logs
indicated that RWT's were sent from March 2006 to December 2006, but
no RMT's were transmitted from at least June 2006 to December 2006.
The EAS equipment failure was first logged in November 2006.
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 11.61(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.
9. A review of KCLV(AM) and KCLV-FM's EAS logs for the period March 2006
through December 2006 revealed that the stations did not receive and
transmit RMT's from the required EAS monitoring sources. There were no
entries made in the EAS log to indicate reasons why these tests were
not received or transmitted until November 2006. Zia's Chief Engineer
acknowledged to a Denver agent that the stations' EAS equipment became
"partially defective" in March 2006 and was returned to service on
January 2, 2007. The Chief Engineer stated that the EAS equipment
continued to receive all tests, but a chip failure in the equipment
caused a failure of the equipment's logging and printing capabilities.
However, no evidence was provided that any RMT's had been received or
retransmitted, as required by the Rules, between March 2006 and
December 2006. Zia failed to maintain the operational readiness of the
EAS equipment installed at KCLV(AM) and KCLV-FM for a period of over
nine months, therefore, Zia's violation is repeated.
10. Based on the evidence before us, we find that Zia apparently
repeatedly violated Section 11.35(a) of the Rules by failing to ensure
the operational readiness of the EAS equipment for stations KCLV(AM)
and KCLV-FM.
11. 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 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 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. In this
case, because Zia took steps to repair the stations' EAS equipment
prior to the inspection by the Denver Office, we conclude a reduction
in the base forfeiture amount is warranted. Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that Zia is apparently liable for a $6,000
forfeiture.
IV. ORDERING CLAUSES
12. 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, Zia Broadcasting Company is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of six thousand dollars ($6,000) for violations of Section
11.35(a) of the Rules.
13. 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, Zia Broadcasting Company
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
14. 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.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado, 80226, and must
include the NAL/Acct. No. referenced in the caption.
16. 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.
17. 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.
18. 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 Zia Broadcasting Company.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver 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).
47 C.F.R. S 11.61. 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.
Additionally, no request was sent to the District Director of the Denver
District Office notifying the office of the defective equipment and
requesting additional time to repair the equipment, as required pursuant
to Section 11.35(c) of the Rules. 47 C.F.R. S 11.35(c).
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)(E).
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.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission