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Before the Federal Communications Commission
Washington, D. C. 20554
In the Matter of
O’Hana Radio Partners
Licensee of FM Broadcast Station KAWV Lihue, Hawaii
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File Number: EB- 03- HL- 057
NAL/ Acct. No. 200432860003 FRN 0004059309
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 22, 2004
By the Honolulu Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (" NAL"), we find that O’Hana Radio Partners (“ O’Hana Radio Partners”), licensee of station KAWV( FM) in Lihue, Hawaii, has apparently
willfully and repeatedly violated Section 11.35( a) of the Federal Communications Commission's (" FCC") Rules by failing to have Emergency Alert System (" EAS”) equipment installed and operational. 1 We
conclude, pursuant to Section 503( b) of the Communications Act of 1934, as amended (“ Act”), 2 that O’Hana Radio Partners is apparently liable for a forfeiture in the amount of eight thousand dollars
($ 8,000).
II. BACKGROUND
2. On July 1, 2003, agents from the Honolulu Office monitored KAWV, 98.1 MHz, from 11: 10 a. m. until 12: 35 p. m. HST. The EAS Required Monthly Test, issued by the Hawaii State Civil
Defense at approximately 11: 13 a. m. HST, was not retransmitted by KAWV during this period. On July 1, 2003, agents from the Honolulu Resident Agent Office inspected the KAWV main studio,
located in the Puhi Industrial Park at Leleiona Road, Lihue, Hawaii. The EAS equipment was not installed such that the monitoring and transmitting functions of the equipment were available during the
times the station was in operation. The station manager advised the agents that EAS equipment had never been completely installed since the station began operation in August of 2002 and the station was
still awaiting correct parts to complete the EAS installation.
1 47 C. F. R § 11.35( a).
2 47 U. C. S. § 503( b).
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III. DISCUSSION
3. 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. 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 The term "repeated" means the commission or omission of such act more than once or for more than one day. 5
4. 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 requires all broadcast stations to ensure that EAS encoders, EAS decoders and attention signal generating and receiving equipment used as part of the EAS are
installed and operational so that the monitoring and transmitting functions are available during the times the station is in operation. An uninstalled and incomplete EAS system was observed during the July 1,
2003, inspection of O’Hana Radio Partners’ station KAWV. No station records existed to indicate the EAS system was ever functional at any time since station KAWV began operation in August of 2002.
6. Based on the evidence before us, we find O’Hana Radio Partners willfully and repeatedly violated Section 11.35( a) of the Rules by failing to have EAS equipment installed and operational from
August 2002, until July 1, 2003.
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 or any
rule or regulation of the Commission authorized by this Act…." See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
5 Section 312( f)( 2) of the Act, 47 U. S. C. § 312( f)( 2), which 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."
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.
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7. 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( b)( 4) of the Rules, 10 for EAS equipment not installed or operational is $8,000. Accordingly, the total base forfeiture for failing to have operational EAS equipment for station
KAWV 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 includes 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. Applying the
Forfeiture Policy Statement and the statutory factors to the instant case, a $8,000 forfeiture is warranted. 12
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section 503( b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311 and 1.80 of the Commission's Rules, O’Hana Radio
Partners, is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of eight thousand dollars ($ 8,000) for violations of Section 11.35( a) of the Rules. 13
9. 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, O’Hana Radio
Partners SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.
10. 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.
11. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Spectrum Enforcement Division, 445 12 th Street, S. W., Washington, D. C. 20554 and MUST
INCLUDE THE NAL/ Acct. No. referenced above.
12. 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.
9 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
10 47 C. F. R. § 1.80.
11 47 U. S. C. § 503( b)( 2)( D).
12 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
13 47 U. S. C. § 503( b); 47 C. F. R. §§ 0111, 0.311, 1.80, 11.35( a).
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13. 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. 14
14. Under the Small Business Paperwork Relief Act of 2002, Pub L. No. 107- 198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a two- year tracking process regarding the size of entities involved
in forfeitures. If you qualify as a small entity and if you wish to be treated as a small entity for tracking purposes, please so certify to us within thirty (30) days of this NAL, either in your response to the NAL or
in a separate filing to be sent to the Spectrum Enforcement Division. Your certification should indicate whether you, including your parent entity and its subsidiaries, meet one of the definitions set forth in the
list provided by the FCC’s Office of Communications Business Opportunities (OCBO) set forth in Attachment A of this Notice of Apparent Liability. This information will be used for tracking purposes
only. Your response or failure to respond to this question will have no effect on your rights and responsibilities pursuant to Section 503( b) of the Communications Act. If you have questions regarding
any of the information contained in Attachment A, please contact OCBO at (202) 418- 0990.
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY shall be sent by Certified Mail, Return Receipt Requested, and regular mail, to O’Hana Radio Partners, 41-
625 Eclectic Street #J- 1, Palm Desert, CA 92260.
FEDERAL COMMUNICATIONS COMMISSION
Ryan Hagihara Resident Agent, Honolulu Office
cc: Radio Station KAWV O’Hana Radio Partners
P. O. Box 3422 Lihue, HI 96766
14 See 47 C. F. R. § 1.1914.
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FCC List of Small Entities As described below, a “small entity” may be a small organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization Any not- for- profit enterprise that is independently owned and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction Governments of cities, counties, towns, townships, villages, school districts, or
special districts, with a population of less than fifty thousand.
(3) Small Business Any business concern that is independently owned and operated and
is not dominant in its field, and meets the pertinent size criterion described below.
Industry Type Description of Small Business Size Standards Cable Services or Systems
Cable Systems Special Size Standard – Small Cable Company has 400,000 Subscribers Nationwide or Fewer
Cable and Other Program Distribution Open Video Systems
$12.5 Million in Annual Receipts or Less
Common Carrier Services and Related Entities Wireline Carriers and Service providers
Local Exchange Carriers, Competitive Access Providers, Interexchange Carriers, Operator
Service Providers, Payphone Providers, and Resellers 1,500 Employees or Fewer
Note: With the exception of Cable Systems, all size standards are expressed in either millions of dollars or number of employees and are generally the average annual receipts or the average employment of a firm.
Directions for calculating average annual receipts and average employment of a firm can be found in 13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services International Broadcast Stations
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International Public Fixed Radio (Public and Control Stations)
Fixed Satellite Transmit/ Receive Earth Stations Fixed Satellite Very Small Aperture Terminal
Systems Mobile Satellite Earth Stations
Radio Determination Satellite Earth Stations Geostationary Space Stations
Non- Geostationary Space Stations Direct Broadcast Satellites
Home Satellite Dish Service
$12.5 Million in Annual Receipts or Less
Mass Media Services Television Services
Low Power Television Services and Television Translator Stations
TV Auxiliary, Special Broadcast and Other Program Distribution Services $12 Million in Annual Receipts or Less
Radio Services Radio Auxiliary, Special Broadcast and Other
Program Distribution Services $6 Million in Annual Receipts or Less Multipoint Distribution Service Auction Special Size Standard –
Small Business is less than $40M in annual gross revenues for three preceding years
Wireless and Commercial Mobile Services Cellular Licensees
220 MHz Radio Service – Phase I Licensees 1,500 Employees or Fewer
220 MHz Radio Service – Phase II Licensees 700 MHZ Guard Band Licensees
Private and Common Carrier Paging
Auction special size standard - Small Business is average gross revenues of $15M or less for
the preceding three years (includes affiliates and controlling principals)
Very Small Business is average gross revenues of $3M or less for the preceding three years (includes affiliates and
controlling principals)
Broadband Personal Communications Services (Blocks A, B, D, and E)
1,500 Employees or Fewer Broadband Personal Communications Services
(Block C) Broadband Personal Communications Services
(Block F) Narrowband Personal Communications Services
Auction special size standard - Small Business is $40M or less in annual gross revenues for
three previous calendar years Very Small Business is average gross revenues of $15M or
less for the preceding three calendar years (includes affiliates and persons or entities that hold interest in such entity and
their affiliates)
Rural Radiotelephone Service Air- Ground Radiotelephone Service 1,500 Employees or Fewer
800 MHz Specialized Mobile Radio 900 MHz Specialized Mobile Radio Auction special size standard - Small Business is $15M or less average annual gross
revenues for three preceding calendar years
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/ A
Aviation and Marine Radio Service Fixed Microwave Services
1,500 Employees or Fewer
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Public Safety Radio Services Small Business is 1,500 employees or less Small Government Entities has population of less than 50,000 persons
Wireless Telephony and Paging and Messaging
1,500 Employees or Fewer Personal Radio Services N/ A
Offshore Radiotelephone Service 1,500 Employees or Fewer
Wireless Communications Services
39 GHz Service
Small Business is $40M or less average annual gross revenues for three preceding years
Very Small Business is average gross revenues of $15M or less for the preceding three years
Multipoint Distribution Service
Auction special size standard (1996) – Small Business is $40M or less average annual gross
revenues for three preceding calendar years
Prior to Auction – Small Business has annual revenue of $12.5M or less
Multichannel Multipoint Distribution Service Instructional Television Fixed Service
$12.5 Million in Annual Receipts or Less
Local Multipoint Distribution Service
Auction special size standard (1998) – Small Business is $40M or less average annual gross
revenues for three preceding years Very Small Business is average gross revenues of $15M or
less for the preceding three years
218- 219 MHZ Service
First Auction special size standard (1994) – Small Business is an entity that, together with its affiliates,
has no more than a $6M net worth and, after federal income taxes (excluding carryover losses) has no more than $2M in
annual profits each year for the previous two years
New Standard – Small Business is average gross revenues of $15M or less for
the preceding three years (includes affiliates and persons or entities that hold interest in such entity and their affiliates)
Very Small Business is average gross revenues of $3M or less for the preceding three years (includes affiliates and
persons or entities that hold interest in such entity and their affiliates)
Satellite Master Antenna Television Systems
$12.5 Million in Annual Receipts or Less 24 GHz – Incumbent Licensees 1,500 Employees or Fewer
24 GHz – Future Licensees Small Business is average gross revenues of $15M or less for the preceding three years (includes affiliates and persons or
entities that hold interest in such entity and their affiliates) Very Small Business is average gross revenues of $3M or
less for the preceding three years (includes affiliates and persons or entities that hold interest in such entity and their
affiliates)
Miscellaneous On- Line Information Services $18 Million in Annual Receipts or Less
Radio and Television Broadcasting and Wireless Communications Equipment Manufacturers
Audio and Video Equipment Manufacturers 750 Employees or Fewer
Telephone Apparatus Manufacturers (Except
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Cellular) 1,000 Employees or Fewer
Medical Implant Device Manufacturers 500 Employees or Fewer
Hospitals $29 Million in Annual Receipts or Less
Nursing Homes $11.5 Million in Annual Receipts or Less
Hotels and Motels $6 Million in Annual Receipts or Less
Tower Owners (See Lessee’s Type of Business)
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