*Pages 1--4 from Microsoft Word - 30742* Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Alpine Broadcasting, Ltd. Licensee of Station KKIT( FM) Angel Fire, New Mexico Facility ID # 43767 Alpine Broadcasting Ltd. Partnership Licensee of Station KXMT( FM) Taos, New Mexico Facility ID # 18421 ) ) ) ) File No. EB- 00- DV- 409 ) ) and ) ) File No. EB- 00- DV- 504 ) ) NAL/ Acct. No. 200232800002 ) FRN 0005- 9526- 68 ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: May 16, 2002 By the District Director, Denver Office, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (" NAL"), we find that Alpine Broadcasting Ltd., licensee of station KKIT, Angel Fire, New Mexico, and Alpine Broadcasting Ltd. Partnership, licensee of station KXMT, Taos, New Mexico, (collectively referred to as "Alpine") apparently willfully violated Section 11.35( a) of the Commission's Rules (" Rules") 1 for failure to have operational Emergency Alert System (" EAS") equipment. We conclude, pursuant to Section 503( b) of the Communications Act of 1934, as amended (" Act") 2 , that Alpine is apparently liable for a forfeiture in the amount of sixteen thousand dollars ($ 16,000). II. BACKGROUND 2. On August 9, 2001, a Denver Office Agent inspected KKIT and KXMT. At the time of inspection, the EAS equipment, although present, was not installed and connected so as to be operational. There were no entries in the station log indicating that the EAS equipment had ever been operational or had been taken out of service for repair. 1 47 C. F. R. § 11.35( a). 2 47 U. S. C. § 503( b). 1 2 III. DISCUSSION 3. Section 503( b) of the Act provides that any person who willfully fails to comply substantially with the terms and conditions of any license, or willfully 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. 3 The term "willful" as used in Section 503( b) has been interpreted to mean simply that the acts or omissions are committed knowingly. 4 4. Commission licensees are responsible for familiarizing themselves and complying with applicable statutes and Commission Rules and policies, regardless of the length of time the licensee has been engaged in broadcasting. 5 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. 6 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. 7 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. 8 5. Section 11.35( a) of the Rules states that "[ b] roadcast stations… are responsible for ensuring that EAS Encoders, EAS Decoders and Attention Signal generating and receiving equipment used as part of the EAS are installed so that the monitoring and transmitting functions are available during the times the stations and systems are in operation." Based on the evidence before us, we find that on August 9, 2001, Alpine willfully violated Section 11.35( a) of the Commission's Rules by failing to have EAS equipment installed so that the monitoring and transmitting functions were available. 6. The base forfeiture amount set by The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, (" Forfeiture Policy Statement"), 9 and Section 1.80 of the Commissions Rules, 10 for EAS equipment not installed or operational 3 47 U. S. C. § 503( b). 4 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). 5 See Bay Television, Inc., 10 FCC Rcd 11509 (1995) (rejecting licensee's request for lenient treatment because it had been on the air for barely six months.); Radio One Licensees, Inc., Memorandum Opinion and Order, DA 02- 219 (Enf. Bur. Jan 31, 2002) (rejecting licensee's request for lenient treatment because the station had been acquired less than six months before, noting also that the licensee was an experienced broadcaster). 6 47 C. F. R. §§ 11.11 and 11.41. 7 47 C. F. R. §§ 11.1 and 11.21. 8 47 C. F. R. § 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. 9 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999). 10 47 C. F. R. § 1.80. 2 3 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, 11 which include the nature, circumstances, extent, and gravity of the violation( s), 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. Application of the base amount to the captioned Alpine stations' violations results in a base forfeiture amount of $8,000 for each station. KKIT and KXMT serve two different EAS local areas under the State of New Mexico EAS plan. Therefore, failure to have operational EAS equipment is applied to each station separately. Applying the Forfeiture Policy Statement and the statutory factors to the instant case, a $16,000 forfeiture is warranted. IV. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED THAT, pursuant to Section 503( b) of the Communications Act of 1934, as amended, 12 and Sections 0.111, 0.311 and 1.80 of the Commission's Rules, 13 each of the Alpine captioned licensees, is hereby NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE in the amount of eight thousand dollars ($ 8,000) each for violation of Sections 11.35( a) of the Rules, 47 C. F. R. §11.35( a), representing a total forfeiture of $16,000. 8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Commission's Rules 14 within thirty days of the release date of this NOTICE OF APPARENT LIABILITY, each of the captioned licensees 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 must include the FCC Registration Number (FRN) and the NAL/ Acct. No. referenced in the caption. 10. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Technical and Public Safety Division, 445 12 th Street, S. W., Washington, D. C. 20554 and must include the NAL/ Acct. No. referenced in the caption. 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. 11 47 U. S. C. § 503( b)( 2)( D). 12 47 U. S. C. § 503( b). 13 47 C. F. R. §§ 0.111, 0.311, 1.80. 14 47 C. F. R. § 1.80. 3 4 12. 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. 15 13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4412, Return Receipt Requested, to Alpine Broadcasting Ltd., and Alpine Broadcasting Ltd. Partnership, P. O. Box 2158, Ketchum, ID 83340. FEDERAL COMMUNICATIONS COMMISSION Leo E. Cirbo District Director, Denver Office 15 See 47 C. F. R. § 1.1914. 4