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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
FM 92 Broadcasters, Inc. EB-07-DL-077
)
Licensee of Station KMZE NAL/Acct. No. 200732500008
)
Woodward, Oklahoma FRN: 0003752946
)
Facility ID # 21841
)
)
FORFEITURE ORDER
Adopted: June 11, 2008 Released: June 13, 2008
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of five thousand dollars ($5,000) to FM 92 Broadcasters,
Inc. ("Broadcasters"), licensee of station KMZE, in Woodward,
Oklahoma, for willful and repeated violation of Section 11.35(a) of
the Commission's Rules ("Rules"). The noted violation involves
Broadcasters' failure to install the required Emergency Alert System
("EAS") equipment.
II. BACKGROUND
2. On May 2, 2007, an agent from the Commission's Dallas Office of the
Enforcement Bureau ("Dallas Office") inspected the main studio for
station KMZE in Woodward, Oklahoma. The agent found that Station KMZE
was sharing an EAS unit with co-located Station KWOX.
3. In response to a Letter of Inquiry dated August 14, 2007 issued by the
Dallas Office ("LOI"), Broadcasters stated that stations KMZE and KWOX
were not commonly owned stations. Broadcasters also stated the shared
EAS unit was owned by station KWOX and that it thought such sharing
was not in violation of the Rules. Broadcasters stated that it
purchased a separate EAS encoder for station KMZE following receipt of
the Letter of Inquiry.
4. On October 23, 2007, the Dallas Office issued a Notice of Apparent
Liability for Forfeiture to Broadcasters in the amount of eight
thousand dollars ($8,000) for the apparent willful and repeated
violation of Section 11.35 of the Rules. Broadcasters submitted a
response to the NAL requesting a reduction or cancellation of the
proposed forfeiture.
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act'), Section 1.80 of the Rules, and 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, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement"). In
examining Broadcasters' response, Section 503(b) of the Act requires
that the Commission 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 other such matters as justice may require.
6. Section 11.35(a) 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. Section 11.51(l) of the Rules states that
"EAS Participants that are co-owned and co-located with a combined
studio or control facility, (such as an AM and FM licensed to the same
entity and at the same location or a cable headend serving more than
one system) may provide the EAS transmitting requirements contained in
this section for the combined stations or systems with one EAS
Encoder." Section 11.51(l) does not authorize stations that are not
co-owned to share an EAS encoder. During the inspection on May 2,
2007, station KMZE was sharing station KWOX's EAS encoder. Stations
KMZE and KWOX are co-located, but not co-owned stations. Accordingly,
on May 2, 2007, station KMZE did not have an installed EAS
encoder/decoder at its main studio. Broadcasters stated it did not
obtain an EAS decoder for station KMZE until after August 14, 2007.
7. In response to the NAL, Broadcasters does not dispute that it did not
have an EAS encoder/decoder for station KMZE. Rather, Broadcasters
states that it was unaware that sharing EAS equipment violated the
Rules, and that the agent failed to mention this violation during the
inspection. However, a violation may be willful, "irrespective of any
intent to violate any provision of this Act or any rule." During the
inspection, the agent did not point out that sharing EAS equipment
violated the Rules, because stations KMZE and KWOX appeared to be
co-owned and operated. The agent determined that the stations were not
co-owned and operated based on Broadcasters response to the LOI.
Nevertheless, during the inspection, Broadcasters was aware that
station KMZE was sharing EAS equipment with a non-co-owned station and
that this situation had been in place for more than one day. Thus,
based on the evidence before us, we find that Broadcasters willfully
and repeatedly violated Section 11.35(a) of the Rules, by failing to
install the required EAS equipment.
8. Broadcasters also asserts its violation posed no safety hazard, as
"all EAS announcements required to be broadcast were in fact
broadcast." Regardless of whether this assertion is true, the
Commission has determined that co-located separately owned stations
must have their own EAS equipment. It is undisputed that Broadcasters
was in violation of the Rules, and we find no reason to reduce or
cancel the forfeiture.
9. Finally, Broadcasters requests a reduction of the forfeiture based on
its history of compliance with the Rules and its inability to pay the
forfeiture. The Commission has determined that, in general, an
entity's gross revenues are the best indicator of its ability to pay a
forfeiture. After reviewing Broadcasters' financial documentation and
history with the Commission, we conclude that a reduction of the
forfeiture to $5,000 would be appropriate.
10. We have examined Broadcasters' response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Broadcasters
willfully and repeatedly violated Section 11.35(a) of the Rules.
However, we reduce the forfeiture for this violation to $5,000, based
on Broadcasters' history of compliance with the Rules and its
inability to pay the forfeiture.
IV. ORDERING CLAUSES
11. 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(f)(4) of the Commission's Rules, FM 92 Broadcasters, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of five thousand
dollars ($5,000) for violation of Section 11.35 of the Rules.
12. 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. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment[s] by wire transfer may
be made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
FM 92 Broadcasters, Inc. will also send electronic notification on the
date said payment is made to SCR-Response@fcc.gov.
13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to FM 92
Broadcasters, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 11.35(a), 73.1125(a).
Station KWOX's EAS unit was not able to operate in automatic mode, because
it could not be set to a valid date and time. In addition, it had no audio
signal on two of the three connected inputs. Station KWOX received a
separate Notice of Apparent Liability for failing to have operational EAS
equipment. See Omni Communications, Inc., Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200732500006 (Enf. Bur., Dallas Office, October
23, 2007).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732500008
(Enf. Bur., Dallas Office, October 23, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(D).
47 C.F.R. S: 11.35(a).
47 C.F.R. S: 11.51(l).
47 U.S.C. S: 312(f)(1).
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,' ... 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).
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
Station KWOX submitted copies of its program logs as evidence that all
required EAS tests were sent. However, according to the station's program
logs, no weekly tests were transmitted between January 28 and February 17,
2008, and no monthly EAS tests were sent between January and June 2007.
The South Central Region of the Enforcement Bureau found that station
KWOX's EAS equipment was not fully operational. Omni Communications, Inc.,
Forfeiture Order, DA 08-1394 (rel. June 13, 2008).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
gross revenues).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 11.35.
Federal Communications Commission DA 08-1395
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Federal Communications Commission DA 08-1395