**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

+------------------------------------+---+---+--------------------------+
| # In the Matter of                 | ) |   | File No. EB-02-SD-144    |
|                                    |   |   |                          |
| Aracelis Ortiz, Executrix of the   | ) |   | ######## NA              |
|                                    |   |   | L/Acct. No. 200232940008 |
| Estate of Carlos Ortiz             | ) |   |                          |
|                                    |   |   | #                        |
| P.O. Box 530391                    | ) |   | ###### FRN: 0003-7552-87 |
|                                    |   |   |                          |
| ######### Harlingen, TX 78553      | ) |   |                          |
|                                    |   |   |                          |
|                                    | ) |   |                          |
|                                    |   |   |                          |
|                                    | ) |   |                          |
+------------------------------------+---+---+--------------------------+

# NOTICE OF APPARENT LIABILITY FOR FORFEITURE

### By the Enforcement Bureau: San Diego Office **Released:** September 30, 2002

## INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    that Aracelis Ortiz, Executrix of the Estate of Carlos Ortiz
    ("Aracelis Ortiz"), the licensee of Class A Television Broadcast
    ("Class A") station KCOS-LP in Phoenix, Arizona, apparently
    willfully violated Sections 11.35(a) and 73.1125(c) of the
    Commission's Rules and Regulations ("Rules"),[^1] by failing to
    ensure that required Emergency Alert System ("EAS") equipment was
    operational and failing to establish a main studio at a location
    within the station's predicted Grade B contour (as outlined in
    Section 73.683 of the Rules).[^2] We conclude, pursuant to Section
    503(b) of the Communications Act of 1934, as amended ("Act")[^3],
    that Aracelis Ortiz is apparently liable for forfeiture in the
    amount of fifteen thousand dollars (\$15,000).

## BACKGROUND

2.  On May 6, 2002, an agent from the Federal Communications
    Commission's ("FCC") San Diego office attempted to conduct a routine
    inspection of the EAS equipment of Class A station KCOS-LP. Station
    KCOS-LP was granted status as a Class A station on April 27,
    1999.[^4] The agent discovered that there was neither a studio
    address nor telephone listing for station KCOS-LP in any of the
    telephone directories for the Phoenix area. However, the transmitter
    for station KCOS-LP, located on Usery Mountain near Mesa, Arizona,
    was operating on TV channel 28.

3.  On May 9, 2002, an agent at the FCC's San Diego office telephoned
    the licensee in Harlingen, Texas to obtain a studio address and
    telephone number for KCOS-LP. No one knowledgeable about KCOS-LP was
    available at that time. A letter of inquiry was sent to the licensee
    on May 10, 2002, requesting the identity of a contact person in the
    Phoenix area responsible for KCOS-LP, the address of the local
    studio and a local telephone number. A fax reply was received by the
    FCC's San Diego office on May 20, 2002, giving a telephone number
    and an address for the KCOS-LP studio. A call was attempted to the
    KCOS-LP studio, but the number provided by the licensee was
    disconnected.

4.  On June 24, 2002, an agent from the San Diego office visited the
    studio address provided, 6750 E. Main St., Suite 106, Mesa, Arizona.
    The agent found no studio for KCOS-LP at that address. Rather the
    transmitter site management company was located at that address.
    Employees of the site management company provided a Phoenix area
    telephone number for KCOS-LP.

5.  On June 25, 2002, using the telephone number provided by the site
    management company, the agent reached Mr. Thomas Norcross, station
    manager for KCOS-LP. Mr. Norcross stated that KCOS-LP did not have a
    studio in operation at that time, but one was under construction at
    3820 E. Main St, Suite 10, Mesa, Arizona. He also stated that
    KCOS-LP was operating as a Low Power TV station and did not
    originate any programming, as it was rebroadcasting programs
    received by an earth station at the transmitter site, atop Usery
    mountain. Mr. Norcross also stated that KCOS-LP did not have any EAS
    equipment installed at that time, but would when the studio was
    completed.

## DISCUSSION

6.  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.[^5] The term
    "willful" as used in Section 503(b) has been interpreted to mean
    simply that the acts or omissions are committed knowingly.[^6]

7.  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.[^7] The Rules provide that every broadcast
    station, including a Class A television 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.[^8] 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.[^9] 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.[^10]

8.  The Rules specifically require broadcast stations, including Class A
    stations,[^11] to install and make operational EAS equipment
    (encoders, decoders, attention signal generators and receivers) so
    that monitoring and transmitting functions are available during the
    times whenever the station is in operation.[^12] The Rules also
    require broadcast stations to (a) receive monthly EAS tests from
    designated local primary 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.[^13] Based on the evidence, we find that on June 25, 2002,
    Aracelis Ortiz willfully violated section 11.35 of the Rules by
    failing to have EAS equipment installed and operational.

9.  The Rules also require broadcast stations, including Class A
    stations, to establish and maintain a main studio to serve the needs
    and interests of the residents of the station's community of
    license.[^14] Based on the evidence, we further find that on June
    25, 2002, Aracelis Ortiz did not maintain a studio in the Phoenix
    area for Station KCOS-LP.

10. Based on the evidence before us, we find that Aracelis Ortiz,
    Executrix of the Estate of Carlos Ortiz, apparently willfully
    violated Sections 11.35(a) and 73.1125(c) of the Rules, by failing
    to have EAS equipment properly installed and operational and failing
    to maintain a main studio. Pursuant to *The Commission's Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Rules to
    Incorporate the Forfeiture Guidelines*,[^15] the base forfeiture
    amount for EAS equipment not installed or operational is \$8,000 and
    for not maintaining a main studio is \$7,000. 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, any history of prior offenses, ability to pay, and
    other such matters as justice may require.[^16] In applying Section
    1.80(b)(4) of the Rules and the statutory factors to the instant
    case, we find no compelling evidence to support any adjustments to
    the base forfeiture amounts. Therefore, a total forfeiture in the
    amount of \$15,000 is warranted.

## ORDERING CLAUSES

11. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act, and Sections 0.111, 0.311 and 1.80 of the Commission's Rules,
    Aracelis Ortiz, Executrix of the Estate of Carlos Ortiz, is hereby
    NOTIFIED of their APPARENT LIABILITY FOR A FORFEITURE in the amount
    of fifteen thousand dollars (\$15,000) for violating Sections
    11.35(a), and 73.1125(c) of the Commission's Rules and
    Regulations.[^17]

12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty days of the release date of this NOTICE OF APPARENT
    LIABILITY, Aracelis Ortiz, Executrix of the Estate of Carlos Ortiz,
    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 note the NAL/Account No. 200232940008
    and FRN 0003-7552-87.

14. 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, DC 20554 and must
    include the NAL/Acct. No. 200232940008.

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
    period; (2) financial statements prepared according to generally
    accepted accounting practices; 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 Receivable Operation Group, 445 12^th^ Street, S.W.,
    Washington, D.C. 20554.[^18]

17. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY shall
    be sent, by certified mail, return receipt requested, to Aracelis
    Ortiz, Executrix of the Estate of Carlos Ortiz, P.O. Box 530391,
    Harlingen, TX 78553.

FEDERAL COMMUNICATIONS COMMISSION

> William R. Zears Jr.
>
> District Director
>
> San Diego Office

[^1]: 47 C.F.R. §§ 11.35(a), and 73.1125(c).

[^2]: 47 C.F.R. § 73.683.

[^3]: 47 U.S.C. § 503(b).

[^4]: See BLTTL-19990325JD.

[^5]: 47 U.S.C. § 503(b).

[^6]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to 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).

[^7]: *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).

[^8]: 47 C.F.R. §§ 11.11 and 11.41.

[^9]: 47 C.F.R. §§ 11.1 and 11.21

[^10]: 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.

[^11]: 47 C.F.R. § 11.11.

[^12]: 47 C.F.R. § 11.35.

[^13]: 47 C.F.R. § 11.61. The required monthly and weekly tests are
    required to conform with 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.)

[^14]: 47 C.F.R. § 73.1125(c).

[^15]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,*
    12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^16]: 47 U.S.C. § 503(b)(2)(D).

[^17]: 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35, and 73.1125.

[^18]: *See* 47 C.F.R. § 1.1914.