*Pages 1--3 from Microsoft Word - 30618* Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Reef Broadcasting, Inc. Licensee of Radio Stations WRRA, WAXJ, and WDHP Christiansted, U. S. Virgin Islands ) ) ) ) ) ) ) ) ) File Number EB- 02- SJ- 085 NAL/ Acct. No. 200232680006 FRN 0004- 3596- 18 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: May 18, 2002 By the Enforcement Bureau, San Juan Office: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture, we find that Reef Broadcasting, Inc. (“ Reef”), licensee of radio stations WRRA, WAXJ and WDHP, willfully and repeatedly violated Section 11.61( a)( 1)( i) of the Commission's Rules, 1 by failing to conduct the required monthly tests of the Emergency Alert System (“ EAS”). We conclude that Reef Broadcasting, Inc. is apparently liable for a forfeiture in the amount of two thousand dollars ($ 2,000). II. BACKGROUND 2. On April 26, 2002, in response to a complaint, an agent of the Commission’s San Juan Resident Agent Office inspected the collocated studios of WRRA, WAXJ and WDHP in St. Croix, U. S. Virgin Islands. The agent requested the operator on duty to conduct an EAS test. The operator was incapable of conducting the test, and could not produce the station’s EAS handbook. The station operations manager, Beverly Myers, stated that she was in charge of programming but was unaware of the need to schedule EAS tests. The agent reviewed the station logs dating from January 1 to April 25, 2002, which contained no record of any EAS events or equipment malfunctions. 2 3. On May 6, 2002, the agent interviewed via telephone Mr. Hugh Pemberton, identified as WRRA general manager and owner, who stated there were technical problems with Reef’s EAS equipment. Mr. Pemberton also stated that he had no idea when the equipment malfunctioned. 1 47 C. F. R § 11.61( a)( 1)( i) 2 EAS equipment malfunctions, EAS activations and tests, as well as the failure to receive activations and tests must be recorded in the station’s logs. See 47 C. F. R. §§ 11.35( a), 11.35( b), 11.54.( b)( 14), 11.55( c)( 7), and 11.61( b). 1 2 III. DISCUSSION 4. Section 11.61( a)( 1)( i) requires that AM and FM broadcast stations conduct monthly EAS tests that conform with procedures in the EAS Operating Handbook. On April 26, 2002, the station operator on duty was incapable of conducting an EAS test, the station’s EAS handbook could not be produced, the station’s operations manager was unaware of any requirement to conduct EAS tests, and the station’s logs contained no entries of any EAS events. Additionally, the station’s owner and general manager admitted that the EAS equipment had “problems” and that he did not know when these problems began. Based on these facts, we must conclude that stations WRRA, WAXJ and WDHP conducted no EAS monthly tests from at least January 1 to April 25, 2002. 5. Based on the evidence before us, we find Reef willfully 3 and repeatedly 4 violated Section 11. 61( a)( 1)( i) of the Rules by failing to conduct the required monthly EAS tests between January 1 and April 26, 2002. 6. Pursuant to Section 1.80( b)( 4) of the Rules, 5 the base forfeiture amount for failure to conduct EAS tests is $2,000 (failure to make required measurements or conduct required monitoring). 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 Communications Act of 1934, as amended (“ Act”), which include 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 Considering the entire record and applying the factors listed above, this case warrants a $2,000 forfeiture. IV. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED THAT, pursuant to Section 503( b) of the Act, 7 and Sections 0.111, 0.311 and 1.80 of the Rules, 8 Reef Broadcast, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of two thousand dollars ($ 2,000) for willful and repeated violation of Section 11. 61( a)( 1)( i) of the Rules by failing to conduct the required monthly EAS tests. 3 Section 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 ….” See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 4 The 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 U. S. C. § 312( f)( 2). 5 47 C. F. R. § 1.80( b)( 4) 6 47 U. S. C. § 503( b)( 2)( D). 7 47 U. S. C. § 503( b). 8 47 C. F. R. §§ 0.111, 0.311, 1.80. 2 3 8. 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, May 18, 2002, Reef Broadcast, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 9. Payment of the forfeiture may be made by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Forfeiture Collection Section, Finance Branch, Federal Communications Commission, P. O. Box 73482, Chicago, Illinois 60673- 7482. The payment should note the NAL/ Acct. No. and FRN referenced above. Requests for payment of the full amount of this Notice of Apparent Liability under an installment plan should be sent to: Chief, Revenue and Receivables Operations Group, 445 12th Street, S. W., Washington, D. C. 20554. 9 10. The response, if any, must be mailed to Federal Communications Commission, Office of the Secretary, 445 12 th Street SW, Washington DC 20554, Attn: Enforcement Bureau- Technical & Public Safety Division and MUST INCLUDE THE NAL/ Acct. No. and FRN referenced above. 11. 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. 12. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY shall be sent by Certified Mail Return Receipt Requested to Reef Broadcast, Inc., 79- A Castle Coakley, Christiansted, US Virgin Islands 00820. FEDERAL COMMUNICATIONS COMMISSION Reuben Jusino Resident Agent - San Juan Office, Enforcement Bureau 9 See 47 C. F. R. § 1.1914. 3