Document text
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Big Island Radio File Number: EB-03-HL-035
Licensee of FM Broadcast Station KHWI
Hilo, Hawaii
NAL/Acct. No. 200432860002
FRN 0004979464
ee Oe ae oS S
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 11, 2004
By the Honolulu Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find that Big Island Radio, (“Big
Island Radio”) licensee of station KHWI(FM) in Hilo, Hawaii, has apparently repeatedly violated Sections
11.35(a) and 11.61 of the Federal Communications Commission's Rules (“Rules”) by failing to conduct
required weekly and monthly Emergency Alert System (“EAS”) tests, and failing to determine the cause of
the failures to receive the required EAS tests and log the reasons why the EAS tests were not received.' We
conclude, pursuant to Section 503(b) of the Communications Act of 1934, as amended (“Act”); that Big
Island Radio is apparently liable for a forfeiture in the amount two thousand dollars ($2,000).
II. BACKGROUND
2. On May 1, 2003, agents from the Honolulu Office monitored KHWI, 92.7 MHz, from 11:10
a.m. until 12:20 p.m. HST. During this period, KHWI did not retransmit the EAS Required Monthly Test
(“RMT”), issued by the Hawaii Civil Defense at approximately 11:14 a.m. HST. Later that same day, the
agents inspected the KHWI main studio at 688 Kinoole Street, Hilo, Hawaii. KHWI shared a single TFT
EAS Encoder/Decoder unit with seven other radio stations, also owned by Big Island Radio. The shared
EAS unit automatically activated seven of the eight stations. The eighth station, KHWI, was activated
through a manual override switch on the EAS unit. The agents observed that the shared EAS unit was
monitoring only a single source, NOAA/Civil Defense, at the time of inspection.
3. The EAS logs indicated that the May 1, 2003, RMT was successfully retransmitted for all of
the stations sharing the unit, but the agents observed during monitoring that the RMT was not
retransmitted by KHWI. The station’s chief operator indicated the manual override for KHWI failed to
occur on May 1, 2003. The EAS logs also revealed that the RMT was not received or retransmitted in
' 47 C.F.R §§11.35(a) and 11.61.
? ATU.CS. § 503(b).
March 2003, or April 2003, and EAS Required Weekly Tests (“RWT”) were not received or conducted
between January 2003, and April 2003. There were no EAS log entries to indicate that the cause of the
failure to receive and conduct the required tests was investigated.
II. DISCUSSION
4. 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.? The term "willful" as used in Section 503(b) has been interpreted to mean
simply that the acts or omissions are committed knowingly.’ The term "repeated" means the commission or
omission of such act more than once or for more than one day.
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. 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.’
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.
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. Broadcast
stations must also determine the cause of any failure to receive required monthly and weekly EAS tests,
and must indicate in the station’s log why any required tests were not received and when defective
equipment is removed and restored to service.’ Section 11.61 of the Rules requires AM stations to (a)
receive monthly EAS tests from designated local primary EAS sources and retransmit the monthly test
347 U.S.C. § 503(b).
* 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 Red 4387 (1991).
> 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."
SAT CER. §§ 11.11 and 11.41.
747 CFR. §§ 11.1 and 11.21.
S47 CER. § 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.
? 47 CER. § 11.35(a) and (b).
within 60 minutes of its receipt and (b) conduct tests of the EAS header and EOM codes at least once a
week at random days and times.” The requirement that stations monitor, receive and retransmit the
required EAS tests ensures the operational integrity of the EAS system in the event of an actual disaster.
Based on the evidence before us, we find that Big Island Radio repeatedly violated Sections 11.35(a) and
11.61 of the Rules by failing to conduct required weekly and monthly EAS tests, and failing to determine the
cause of the failures to receive the required EAS tests and log the reasons why the EAS tests were not
received.
7. Pursuant to The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines (“Forfeiture Policy Statement”),'' the base forfeiture
amount for failure to have EAS equipment installed or operational is $8,000. The Forfeiture Policy
Statement does not establish a base forfeiture amount for violating the Commission’s rule requiring timely
retransmission of the monthly EAS tests. Therefore we must determine what an appropriate amount should
be for this violation.’ The requirement that stations retransmit the monthly EAS tests is similar in both
nature and severity to other required operational readiness checks. As failure to make measurements or
conduct required monitoring carries a base forfeiture amount of $2,000, pursuant to the Forfeiture Policy
Statement, the base forfeiture amount for failure to retransmit EAS tests is set at $2,000. 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!?, 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 $2,000 forfeiture is warranted
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, Big Island Radio, is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of two thousand
dollars ($2,000) for violations of Sections 11.35(a) and 11.61 of the Rules.'*
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, Big Island Radio
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking
10 The required monthly and weekly tests are required to conform to the procedures in the EAS Operational Handbook. See also,
Amendment of Part 11 of the Commission’s Rules Regarding the Emergency Alert System, EB Docket No. 01-66, Report and Order,
FCC 02-64 (Feb. 26, 2002); 67 Fed Reg 18502 (April 16, 2002) (effective May 16, 2002, the required monthly EAS test must be
retransmitted within 60 minutes of receipt.).
11 12 FCC Red 17087 (1997), recon. denied 15 FCC Red 303 (1999).
12 The fact that the F. orfeiture Policy Statement does not specify a base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that “any omission of a specific rule violation from the... [Forfeiture Policy
Statement]...should not signal that the Commission considers any unlisted violation as nonexistent or unimportant.” Forfeiture Policy
Statement, 12 FCC Rcd at 17,099. See e.g., American Tower Corporation, 16 FCC Red 1282 (2001).
13 47 U.S.C. § 503(b)(2)(D).
14 47 U.S.C. § 503(b); 47 C.F.R. §§ 0111, 0.311, 1.80, 11.35(a) and 11.61.
3
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 No. referenced in the caption.
11. The response, if any, must be mailed to Federal Communications Commission, Enforcement
Bureau, Spectrum Enforcement Division, 445 12™ Street, S.W., Washington, D.C. 20554 and MUST
INCLUDE THE NAL/Acct. No. referenced in the caption.
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.
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. 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 # 7001 0320 0002 9837 2291, Return Receipt Requested, to Big Island Radio,
2447 Makiki Heights Drive, Honolulu, Hawaii 96822.
FEDERAL COMMUNICATIONS COMMISSION
Ryan Hagihara
Resident Agent, Honolulu Office
15 See AT CER. § 1.1914.
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
Special Size Standard —
Cable Systems 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 1,500 Employees or Fewer
Service Providers, Payphone Providers, and
Resellers
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
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
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
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)