Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| # In the Matter of               | ) | File Number: EB-05-SD-072       |
|                                  |   |                                 |
| Farmworkers Educational Radio    | ) | NAL/Acct. No.: 200532940003     |
| Network, Inc.                    |   |                                 |
|                                  | ) | FRN: 0010057685                 |
| Licensee of Station KCEC-FM      |   |                                 |
|                                  | ) |                                 |
| Wellton, Arizona                 |   |                                 |
|                                  | ) |                                 |
| Facility ID #21207               |   |                                 |
|                                  | ) |                                 |
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|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+
|                                  |   |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted: June 27, 2006 Released: June 29, 2006**

By the Regional Director, Western Region, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of eight thousand dollars (\$8,000) to
    Farmworkers Educational Radio Network, Inc. ("Farmworkers"), the
    licensee of FM Broadcast Radio station KCEC-FM in Wellton, Arizona,
    for repeatedly violating Section 11.35 of the Commission's Rules
    ("Rules").[^1] On July 20, 2005, the Enforcement Bureau's San Diego
    Office issued a *Notice of Apparent Liability for Forfeiture*
    ("*NAL"*) to Farmworkers for failing to ensure the operational
    readiness of KCEC-FM's Emergency Alert System ("EAS") equipment. In
    this *Order*, we consider Farmworkers' arguments that the EAS
    transmission equipment was fully operational, and that the proposed
    forfeiture should be cancelled or reduced.

# II. BACKGROUND

2.  On April 8, 2005, an agent from the Commission's San Diego Office
    conducted an inspection at the main studio of KCEC-FM located at
    670 E. 32^nd^ Street, Suite 12A, Yuma, Arizona. Although EAS
    equipment was installed, the agent found that it was not operational
    at the time of inspection. No audio from the EAS receiver for the
    designated first and second local primary stations ("LP-1" and
    "LP-2") could be heard.[^2] At the request of the agent, the
    designated LP-1 and LP-2 stations ran a required weekly test ("RWT")
    during this inspection and the station's EAS equipment did not
    detect the activation. A review of the EAS log and printouts
    generated by the EAS encoder/decoder indicated that from January
    2004 through April 2005, only four monthly tests ("RMT") were
    received from the local primary stations and none of these tests
    were retransmitted. EAS logs also indicated that numerous RWTs were
    not transmitted by KCEC-FM and numerous RWTs were not received from
    either designated LP-1 or LP-2 stations during this same period. No
    entries were made by KCEC-FM staff in the EAS log to identify the
    causes of these failures or what steps were taken to remedy any
    failures.

3.  On April 22, 2005, the San Diego agent spoke with KCEC-FM's Chief
    Engineer. The Chief Engineer acknowledged that problems were found
    with the EAS equipment during the engineer's inspection of the
    station's EAS equipment on April 9, 2005. Specifically, he indicated
    that the EAS equipment was originally set for the automatic mode to
    receive and to forward the information received for the tests from
    the local primary stations. However, the EAS equipment was switched
    to the manual mode, requiring a staff person to manually resend the
    RMT. Also, the Chief Engineer indicated that the EAS receiver was
    not connected properly to a power source which explained why the
    tests sent by the LP-1 and LP-2 had not been received by KCEC-FM.

4.  On July 20, 2005, the Enforcement Bureau's San Diego Office issued a
    *NAL* in the amount of \$8,000 to Farmworkers.[^3] In the *NAL*, the
    San Diego Office found that Farmworkers apparently repeatedly
    violated Section 11.35 of the Rules,[^4] by failing to ensure the
    operational readiness of KCEC-FM's EAS equipment. Farmworkers filed
    a response on August 22, 2005 ("*Response*"). In its *Response*,
    Farmworkers argues that the San Diego agent found overall compliance
    with the Commission's Rules, and that the only violations discovered
    concerned the EAS equipment and logging. While Farmworkers
    acknowledges lapses in the station's EAS monitoring and logging, it
    contends that KCEC-FM made a conscientious effort to comply with the
    EAS Rules; that the EAS transmission equipment was at all times
    fully operational; that the station had most of the required logging
    slips; and that if someone had not "jostled loose" the plug on the
    EAS receiver, the station would have been in full compliance.

# III. DISCUSSION

5.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^5] Section 1.80 of the
    Rules,[^6] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*.[^7] In examining the *Response*, Section 503(b) of the
    Act requires that the Commission take into account the nature,
    circumstances, extent and gravity of the violation 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.[^8]

6.  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.[^9] 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.[^10] 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.[^11] Required monthly and weekly
    tests originate from EAS Local or State Primary sources and must be
    retransmitted by the participating station.

7.  Section 11.35 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.[^12]

8.  Section 11.61(a)(1) and (2) of the Rules requires 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] 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. Appropriate entries must be made in the
    broadcast station log as specified in Sections 73.1820 and 73.1840,
    indicating reasons why any tests were not received or
    transmitted.[^14]

9.  Farmworkers argues that the EAS transmission equipment was fully
    operational at all times, that the EAS equipment had transmitted the
    RWT's in automatic mode, and that whether the equipment was in
    automatic or manual mode had no bearing on the transmission by the
    station of the self-generated RWT. Farmworkers supports this
    argument by attaching an affidavit from the KCEC-FM Chief Engineer
    who describes in detail how the KCEC-FM EAS equipment was set up to
    automatically transmit the RWT's. While we do not dispute the
    statements made concerning the transmission of the RWT's, we note
    that neither the *Response* nor the affidavit contain any evidence
    to refute the San Diego Office's finding that no audio from the
    RWT's transmitted by the LP-1 and LP-2, at the request of the San
    Diego agent, could be heard from the station's EAS receiver.
    Farmworkers, and the Chief Engineer, acknowledge that the EAS
    receiver was not plugged in, and the Chief Engineer acknowledges
    that only after he restored power to the EAS receiver did the lights
    indicating audio on the receiver's front panel as well as on the
    encoder/decoder light up. While Farmworkers admits that the
    receiver's plug had been "jostled loose" at some point in time prior
    to the inspection by the San Diego agent, we note that no one in the
    KCEC-FM studio noticed the EAS receiver's failure until the
    inspection. KCEC-FM's lack of operational readiness concerning its
    EAS equipment was also exemplified by the fact that the staff was
    unable to run a RWT without contacting the station's Chief Engineer.

10. Farmworkers also argues that while there were lapses in KCEC-FM's
    EAS monitoring and logging, the station had most of the required
    logging slips. We disagree. The San Diego agent conducted a
    comprehensive review of the EAS logs and printouts generated by the
    KCEC-FM EAS encoder/decoder from January 2004 through April 2005,
    and found that only four RMT's were received from the LP-1 and LP-2
    and none of these tests were retransmitted. Additionally, the
    station logs contained no entries indicating why tests were not
    received or transmitted. Farmworkers provides no evidence to dispute
    this finding.

11. Farmworkers acknowledges the failure of the EAS receiver but asserts
    that the failure was a minor violation. Again, we disagree. The
    failure of the receiver resulted in a failure of the KCEC-FM EAS
    system. If the EAS receiver is unable to receive the signals from
    the LP-1 and LP-2, it is unable to receive the RMT's sent by those
    stations and, consequently, is unable to retransmit those RMT's, as
    required by the Rules. In the case of an actual emergency, KCEC-FM
    would have been unable to receive or retransmit emergency
    communications from the President, or state or local governments,
    because KCEC-FM was unable to receive the LP-1 and LP-2. Contrary to
    Farmworkers' assertions, we do not find such a situation to be a
    minor violation. The requirement that stations monitor, receive and
    retransmit the required EAS tests, particularly the RMT's, ensures
    the operational integrity of the EAS system in the event of an
    actual emergency.

12. Farmworkers also argues that the forfeiture amount should be reduced
    because the agent found overall compliance with the Commission's
    Rules, and because KCEC-FM has an overall history of compliance with
    the Rules. In 2005, however, Farmworkers was assessed a \$7,000
    forfeiture for willful and repeated violation of Section 73.1125 of
    the Rules.[^15] Because Farmworkers was previously the subject of an
    enforcement action, we find Farmworkers does not have an overall
    history of compliance and that reduction of the assessed forfeiture
    amount is not warranted.[^16]

13. Farmworkers also seeks a reduction based on its good faith and
    voluntary disclosure of the facts and circumstances in this case. A
    good faith reduction is permissible when a licensee notices a
    violation and attempts to remedy it before the Commission conducts
    its inspection, or, it provides evidence of an established
    compliance program in place, prior to the Commission\'s
    involvement.[^17] Farmworkers meets neither standard. Additionally,
    Farmworkers only made disclosures to the San Diego agent once the
    agent had begun the inspection and therefore is not entitled to a
    reduction for voluntarily disclosing violations prior to a
    Commission inspection.[^18]

14. We have examined the *Response* to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that
    Farmworkers repeatedly violated Section 11.35 of the Rules, by
    failing to ensure the operational readiness of the EAS equipment at
    KCEC-FM.[^19] Considering the entire record and the factors listed
    above, we find that neither reduction nor cancellation of the
    proposed \$8,000 forfeiture is warranted.

# IV. ORDERING CLAUSES

15. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended ("Act"), and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, Farmworkers
    Educational Radio Network, Inc. **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of \$8,000 for repeatedly violating
    Section 11.35 of the Rules.[^20]

16. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    *Order*. If the forfeiture is not paid within the period specified,
    the case may be referred to the Department of Justice for collection
    pursuant to Section 504(a) of the Act.[^21] Payment of the
    forfeiture must be made by check or similar instrument, payable to
    the order of the Federal Communications Commission.  The payment
    must include the NAL/Acct. No. and FRN No. referenced above. 
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911- 6106. Requests for full payment under an installment
    plan should be sent to: Associate Managing Director -- Financial
    Operations, Room 1A625, 445 12th Street, S.W., Washington, D.C.
    20554.[^22]

17. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Farmworkers Educational Radio Network, Inc. at its address of
    record, and its counsel of record, Anne Thomas Paxson, Esquire,
    Borsari and Paxson.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 11.35.

[^2]: We note that in the *NAL*, the San Diego Office indicated multiple
    receivers were part of the system, one to receive the LP-1 and one
    to receive the LP-2. In its *Response*, Farmworkers indicates that
    only one receiver, an "EAS 930A Multi-Module Receiver," was part of
    the EAS system.

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200532940003 (Enf. Bur., Western Region, San Diego Office, released
    July 20, 2005). We note that in the *NAL*, the San Diego Office
    inadvertently listed an incorrect Facility ID Number for KCEC-FM.
    The station's correct Facility ID Number is listed in the caption of
    this *Order.*

[^4]: 47 C.F.R. § 11.35.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 C.F.R. §§ 11.11 and 11.41.

[^10]: 47 C.F.R. §§ 11.1 and 11.21.

[^11]: 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.

[^12]: 47 C.F.R. § 11.35(a) and (b).

[^13]: 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).

[^14]: 47 C.F.R. §§ 73.1820 and 73.1840.

[^15]: *See Farmworker Educational Radio Network -- Licensee of FM
    Station KRIT*, Forfeiture Order, DA 05-729, 2005 WL 2180500 (rel.
    September 8, 2005).

[^16]: *See, e.g.,* *Petracom of Texarkana*, 19 FCC Rcd 8096 (EB 2004).

[^17]: *See Aquila, Inc*., 19 FCC Rcd 22507 (EB 2004).

[^18]: *See MAPA Broadcasting, L.L.C. WSLA(AM)*, 17 FCC Rcd 10519 (EB
    2002).

[^19]: 47 C.F.R. § 11.35.

[^20]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4), 11.35.

[^21]: 47 U.S.C. § 504(a).

[^22]: *See* 47 C.F.R. § 1.1914.