Document text
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
HBC License Corporation File No. EB-02-SD-157
Licensee of Station KHOT-FM
Paradise Valley, Arizona
and
File No. EB-02-SD-158
Licensee of Station KHOV-FM
Wickenburg, Arizona NAL/Acct. No.: 200332940001
FRN: 000-494-6141
XX xr A OA AAA
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 29, 2002
By the District Director, San Diego Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find that HBC License
Corporation (“HBC”), licensee of FM Broadcast stations KHOT-FM, Paradise Valley, Arizona and
KHOV-FM, Wickenburg, Arizona, has apparently willfully and repeatedly violated Sections 11.35(a),
11.35(c) and 11.61 of the Commission's Rules by failing to maintain operational Emergency Alert
System ("EAS") encoder and decoder equipment and by failing to conduct and log required EAS tests.
We conclude, pursuant to Section 503(b) of the Communications Act of 1934, as amended (“Act”),
that HBC is apparently liable for a forfeiture in the amount of eight thousand dollars ($8,000).
Il. BACKGROUND
2. On May 6, 2002, an Agent from the FCC’s San Diego Office inspected stations KHOT-FM
and KHOV-FM at the shared main studio facility located at 4745 N. qe St., #140, Phoenix, Arizona. The
inspection revealed that KHOT-FM and KHOV-FM share common EAS equipment, which at the time of
inspection, appeared to be operational. The Agent noted that HBC maintained a single, continuous
147 C.F.R. $$ 11.35(a), 11.35(c) and 11.61.
? 47 U.S.C. $ 503(b).
Federal Communications Commission
printout of the log for the EAS equipment for both KHOT-FM and KHOV-FM. This printout indicated
that no EAS tests (sent or received) were conducted during the period from September 14, 2001 through
April 9, 2002. Further, the printout indicated that the EAS unit was not operational from September 17,
2001 through April 8, 2002. There was no written explanation of why the EAS tests were omitted or any
indication that the stations’ chief operator or other personnel attempted to identify the source of any
problem with the EAS equipment.
3. On May 28, 2002, an official Notice of Violation was issued to HBC for failing to maintain
operational EAS equipment, for failing to receive and transmit tests, and for failing to conduct weekly
checks of the station’s records by the designated chief operator from September 14, 2001 though April 9,
2002.*
4. On June 27, 2002, the FCC’s San Diego office received a reply letter dated June 26, 2002,
from HBC. The letter included a statement from HBC’s designated chief operator dated June 24, 2002.
In that statement the chief operator acknowledged the violations and delineated steps taken to prevent
future EAS rule violations.
II. DISCUSSION
5. 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, and
“repeated” means the commission or omission of the act more than once or for more than one day.”
6. The Rules provide that every 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
3 47 CFR. $8 11.35, 11.61(a)(1) & 73.1870(c)(3).
* 47 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)(1), which also applies to Section 503(b), provides: “[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.”
647 CFR. §§ 11.11 & 11.41.
Federal Communications Commission
public.’ State and local area EAS plans identify sources responsible for coordinating carriage of
common emergency messages from agencies such as the National Weather Service or local
emergency management officials.*
7. The Rules require FM Broadcast stations to ensure that EAS equipment, such as encoders,
decoders, attention signal generators and receivers, is installed so that the monitoring and transmitting
functions are available during the times whenever the station is in operation.” The Rules also require
FM Broadcast stations to: (a) receive monthly EAS tests from designated EAS sources and retransmit
the monthly test 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. °
8. As required by Section 11.61 of the Rules, monthly EAS tests must be retransmitted within
60 minutes of receipt, weekly EAS tests be conducted at least once a week at random times and all
EAS tests received and transmitted must be logged in the station’s records. Section 73.1820(a) of the
Rules provides, in part, that entries must be made in the station log either manually by a person
designated by the licensee who is in actual charge of the transmitting apparatus or by automatic
devices.'' This rule section further provides that all stations must enter each test and activation of the
EAS pursuant to the requirements of Part 11 of the Rules and the EAS Operating Handbook.’
Stations may keep EAS data in a special EAS log maintained at a convenient location; however, this
log is considered a part of the station log.
9. The shared EAS log for KHOT-FM and KHOV-FM indicated that the EAS equipment was
not operational for over 6 months, and that personnel for both stations failed to conduct or log a single
transmitted or received test (monthly or weekly) from any source from September 14, 2001 through
April 9, 2002. The log also revealed that the designated chief operator did not conduct the weekly
review of the station’s log.
747C.F.R.$ 11.1 & 11.21.
$ 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.
247 C.F.R. $ 11.35.
10 47 C.F.R. $ 11.61(a)(1)(v). At the time of the violations, the Rules required monthly EAS tests to be retransmitted within
15 minutes of receipt of the required test message. Effective May 16, 2002, the Rules were modified to require monthly EAS
tests to be retransmitted within 60 minutes of receipt of the required monthly test message. 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).
' 47 C.F.R. $ 73.1820(a).
2 47 C.F.R. Part 11.
Federal Communications Commission
10. Based on the evidence, we find that HBC willfully and repeatedly violated Sections 11.35
and 11.61 of the Rules by failing to maintain operational EAS equipment and failing to comply with
EAS testing and logging requirements. 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”),' and Section 1.80 of the Rules, for EAS equipment not
installed or operational 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, 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.
Applying the Forfeiture Policy Statement and the statutory factors to the instant case, an $8,000
forfeiture is warranted.
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 of the Commission's Rules, HBC is
hereby NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE in the amount of eight
thousand dollars ($8000) for violations of Sections 11.35(a), 11.35(c) and 11.61 of the Rules.'*
12. 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, HBC SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal Communications Commission, Enforcement
Bureau, Technical and Public Safety Division, 445 12° Street, SW, Washington, D.C. 20554 and must
include the NAL/Acct. No. referenced in the caption.
15. 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
3? 12 FCC Red 17087 (1997), recon denied, 15 FCC Red 303 (1999).
* 47 C.F.R. $ 1.80.
547 U.S.C. $ 503(b).
647 C.F.R. $$ 0.111, 0.311, 1.80, 11.35(a), 11.35(c) and 11.61.
Federal Communications Commission
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.
16. 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, SW, Washington, D.C. 20554."
17. 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 Federal Communications Commission,
Enforcement Bureau, Technical & Public Safety 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 Act. If you have questions regarding any of the
information contained in Attachment A, please contact OCBO at (202) 418-0990.
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY
shall be sent by Certified Mail - Return Receipt Requested, to HBC License Corporation, 3102 Oak
Lawn Ave., Suite 215, Dallas, Texas 75219.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director, San Diego Office
Enc: FCC List of Small Entities
17 See 47 C.F.R. $ 1.1914.
Attachment A
FCC List of Small Entities
As described below, a “small entity” may be a small organization,
a small governmental jurisdiction, or a small business.
October 2002
(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 C.F.R. §121.104 and 13 C.F.R. $ 121.106, respectively.
International Services
International Broadcast Stations
International Public Fixed Radio (Public and
Control Stations) $12.5 Million in Annual Receipts or Less
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
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)