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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Big Island Radio ) File No. EB-03-HL-035
Former Licensee of Station ) NAL/Acct. No. 200432860002
KHWI(FM) ) FRN 0004-9794-64
Hilo, Hawaii
FORFEITURE ORDER
Adopted: October 18, 2004 Released: October
21, 2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one thousand three
hundred dollars ($1,300) to Big Island Radio (``Big
Island''), former licensee of Station KHWI(FM), Hilo,
Hawaii,1 for its repeated violations of the Emergency Alert
System (``EAS'') requirements of Sections 11.35(a) and 11.61
of the Commission's Rules (``Rules'').
II. BACKGROUND
2. On March 11, 2004, the Commission's Honolulu,
Hawaii Field Office (``Field Office'') released a Notice of
Apparent Liability for Forfeiture (``NAL'').2 The NAL found
that Station KHWI failed to receive and retransmit the EAS
Required Monthly Test (``RMT'') between March and May 1, of
2003, and further failed to receive and retransmit the EAS
Required Weekly Tests (``RWTs'') between January and April
of 2003. The NAL proposed a $2,000 forfeiture, finding that
Big Island apparently repeatedly violated Sections 11.35(a)
and 11.61 of the Rules because it did not conduct the
required monthly and weekly EAS tests and did not determine
and log the reasons for its failure to receive the required
EAS transmissions.
3. In its response to the NAL, Big Island did not
dispute the NAL's findings. Rather, Big Island sought a
reduction or cancellation of the proposed forfeiture based
on its good faith efforts, its unblemished history of
compliance and its inability to pay.
III. DISCUSSION
4. The forfeiture amount proposed in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),3 Section
1.80 of the Rules,4 and the Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines.5 In assessing
forfeitures, Section 503(b)(2)(D) of the Act requires that
we take into account the nature, circumstances, extent and
gravity of the violation and, with respect to the violator,
the degree of culpability, any history of prior offenses,
ability to pay, and such other matters as justice may
require.6 As discussed below, we have considered Big
Island's response to the NAL in light of these statutory
factors and have found that reduction of the proposed
forfeiture amount is warranted.
5. Big Island claimed, and provided a supporting
sworn declaration from its Chief Executive Officer attesting
to the fact, that prior to the Field Office's inspection it
took corrective measures by terminating ``nonperforming
personnel, including the General Manager and Engineer,''
retaining the services of qualified staff, including a new
radio engineer, and instituting scheduled implementation of
measures to bring Station KHWI, and Big Island's other seven
radio stations in compliance with the requirements of the
Act and Rules;7 and that after the inspection, it informed
the Field Office that it corrected the noted deficiencies
and replaced the noted defective EAS equipment.8 As the
broadcast licensee, Big Island is held accountable and is
not absolved from liability for the actions of its prior
nonperforming staff.9 Moreover, Big Island's replacement of
defective EAS equipment and resumption of testing and
logging, after the Field Office's inspection, generally
would not be considered a mitigating circumstance that would
warrant reduction or cancellation of the proposed
forfeiture.10 However, because the record establishes that
Big Island voluntarily and on its own accord initiated, and
was in the process of implementing, corrective measures
prior to the Field Office's inspection, we conclude that
reduction of the proposed forfeiture amount to $1,600 is
warranted.11
6. Big Island also claimed, and a search of
Commission, Bureau and Field Office decisions confirmed,
that Station KHWI, and its seven sister radio stations, have
had an unblemished history of serving their communities in
compliance with Commission regulations. After considering
Ad-Venture's past history of compliance, we conclude that a
further reduction of the proposed forfeiture amount to
$1,300 is appropriate.12
7. Finally, Big Island claimed, and provided
financial documentation to show, that over the last three
years its stations have been operating with net losses,
which has culminated in its recent efforts to ``sell the
stations and leave the broadcasting business.''13 Whereas
Big Island's documentation establishes that it has
consistently operated at net losses, we nevertheless find
that it has generated sufficient gross revenues such that
payment of the reduced forfeiture will not pose a financial
hardship.14
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,15 Big Island Radio IS LIABLE FOR A
MONETARY FORFEITURE in the amount of one thousand three
hundred dollars ($1,300.00) for repeated
violations of Sections 11.35(a) and 11.61 of the Rules.
9. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules 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.16 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. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.17
10. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Big Island Radio, Pioneer Plaza, Suite
1725, 900 Fort Street Mall, Honolulu, Hawaii 96813, and to
its counsel, William D. Silva, Esq., 5335 Wisconsin Avenue,
N.W., Suite 400, Washington, D.C. 20015.
FEDERAL COMMUNICATIONS
COMMISSION
George R. Dillon
Assistant Chief, Enforcement
Bureau
_________________________
1Commission records reflect that the assignment application
was granted on March 11, 2004, and the license for Station
KHWI was transferred on May 21, 2004. See BALH-20031002ABG
(granted March 11, 2004).
2Big Island Radio, NAL/Acct. No. 200432860002 (Enf. Bur.,
Honolulu, Hawaii Office, released March 11, 2004).
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
512 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Policy Statement'').
647 U.S.C. § 503(b)(2)(D).
7Sworn Declaration of Glenn Yee, Chief Executive Officer,
Big Island Radio (April 12, 2004) at 1. According to Mr.
Yee's declaration, Big Island Radio's implemented a three-
phase ``priority of projects,'' which consisted of (1)
relocating an AM antenna structure and transmitter; (2)
repairing and/or replacing eight AM/FM transmitters; and
(3) repairing and/or replacing studio equipment, including
Station KHWI's EAS equipment. Id. At the time of the
inspection, Big Island, having completed the first phase,
had been implementing the second phase; and, within a month
after the inspection, it replaced Station KHWI's defective
EAS equipment. Id.
8In this connection, Big Island cited Radio Lake Placid,
Inc., DA 03-4093 (Enf. Bur., released December 30, 2003)
and noted that it was allowed under Commission rules to
operate for a period of 60 days with defective EAS
equipment. Whereas a station is permitted to operate for a
60-day period while its EAS equipment is repaired or
replaced, an informal request must be made to the District
Director if it could not accomplish the repairs or
replacement within such time period. See 47 C.F.R. §§
11.35(b) and (c). Because Station KHWI was operating
beyond the 60-day period, its reliance upon Radio Lake
Placid, Inc. is misplaced. See, e.g., Rotijefco, Inc., 18
FCC Rcd 14629, 14630-31 ¶ 7 (Enf. Bur. 2003) (finding that
the station had not repaired or replaced the defective EAS
equipment within the 60-day period, and thus was not
entitled to cancellation of the proposed forfeiture).
9See Eure Family Limited Partnership, 17 FCC Rcd 21861,
21863-64 ¶¶ 6-7 (2002); Sonderling Broadcasting Corp., 69
FCC 2d 289, 290-91 ¶ 6 (1977); Wagenvoord Broadcasting Co.,
35 FCC 2d 361, 361-62 ¶ 3 (1972); Charter Communications
VI, LLC, 17 FCC Rcd 16516, 16518-19 ¶¶ 8-9 (Enf. Bur.
2002); American Paging, Inc., 12 FCC Rcd 10417, 19419-20 ¶
11 (WTB 1997).
10See AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002),
forfeiture ordered, 17 FCC Rcd 21866, 21875-76 ¶¶ 26-28
(2002); Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 ¶ 7
(1994); see also TCI Cablevision of Maryland, Inc., 7 FCC
Rcd 6013, 6014 ¶ 8 (1992) (noting that it would be
inappropriate to base ``mitigation or cancellation of a
forfeiture upon corrective action taken subsequent to
misconduct upon which liability is based,'' because it
``would tend to encourage remedial rather than preventative
action'').
11See, e.g., Pearson Broadcasting of Mena, Inc., DA 04-
2391, ¶ 8 (Enf. Bur., released August 2, 2004); Petracom of
Texarkana, LLC, 19 FCC Rcd 8096, 8097-98 ¶ 6 (Enf. Bur.
2004).
12See, e.g., Rotijefco, Inc., 18 FCC Rcd 14629, 14631 ¶ 8
(Enf. Bur. 2003); Roser Communications Network, Inc., 18
FCC Rcd 11766, 11768-69 ¶ 10 (Enf. Bur. 2003); Tidewater
Communications, Inc., 18 FCC Rcd 5524, 5525 ¶¶ 5-6 (Enf.
Bur. 2003); Southern Rhode Island Public Broadcasting,
Inc., 15 FCC Rcd 8115, 8117-18 ¶ 8 (Enf. Bur. 2000); Aurio
A. Matos and Juan Carlos Matos, DA 99-1931 ¶ 7 (MMB 1999).
13Letter from William D. Silva, Esq. to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division (April 12, 2004) at 2. Commission
records reflect that three of Big Island's assignment
applications have been granted, and that five applications
are pending and subject to petitions to deny. See BALH-
20031002ABG (granted May 26, 2004); BALH-20031002AAW
(granted April 16, 2004); BAL-20031106AMG (granted March
11, 2004); BALH-20031002AAY (applications reinstated and
pending).
14See Forfeiture Policy Statement, 12 FCC Rcd 17087, 17106
¶ 43 (1997), recon. denied, 15 FCC Rcd 303 (1999) (stating
that ``[i]f gross revenues are sufficiently great . . . the
mere factor that a business is operating at a loss does not
itself mean that it cannot afford to pay a forfeiture'');
Independent Communications, Inc., 15 FCC Rcd 16060, 16060 ¶
2 (2000) (finding that although a corporation had net
losses of $520,667, it had gross revenues of $516,147, and
that absent ``other information indicating that payment of
the $27,500 forfeiture would threaten its ability to
continue to provide service to the public, reduction or
cancellation in the forfeiture amount was not warranted);
see also Small Town Radio, Inc., 19 FCC Rcd 7187, 7188-89 ¶
9 (Enf. Bur. 2004) (finding that although a broadcast
licensee's liabilities may have greatly exceeded its
assets, it had ``contracted to sell its station for a
substantial amount'' such that reduction or cancellation of
the forfeiture was not warranted).
1547 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1647 U.S.C. § 504(a).
17See 47 C.F.R. § 1.1914.