**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                  | * | File Number EB-03-LA-098      |
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| Moon Broadcasting Riverside, LLC  | ) | NAL/Acct. No.200432900006     |
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| Licensee of KIQQ--AM/FM           | * | FRN 0005031349                |
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| Barstow and Newberry Springs,     | * |                               |
| California                        | * |                               |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Released: April 15, 2004**

By the District Director, Los Angeles Office, Enforcement Bureau:

**I.** **INTRODUCTION**

1\. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Moon Broadcasting Riverside, LLC ("Moon Broadcasting"), licensee of AM
broadcast station KIQQ-AM in Barstow, California and FM broadcast
station KIQQ-FM in Newberry Springs, California, has apparently
repeatedly violated Sections 11.35(a), 11.61(a)(1) and 11.61(a)(2) of
the Commission\'s Rules ("Rules")[^1] by failing to conduct required
monthly and weekly Emergency Alert System ("EAS") tests and failing to
determine the cause of failures to receive required EAS tests. We
conclude, pursuant to Section 503(b) of the Communications Act of 1934,
as amended ("Act"),[^2] that Moon Broadcasting is apparently liable for
a forfeiture in the amount of two thousand dollars (\$2,000).

## II. BACKGROUND

2\. On April 16, 2003, an agent from the FCC Enforcement Bureau's Los
Angeles Office conducted an EAS inspection at the main studio of
co-located broadcast stations KIQQ-AM/FM located at 710 US Highway 58,
Barstow, California. EAS equipment was installed and operating at the
time of the inspection. The EAS receipts generated by the EAS
Encoder/Decoder showed that stations KIQQ-AM/FM did not receive or
transmit required monthly EAS tests in August, September, October,
November or December of 2002. The stations' secretary who was in charge
of transmitting the EAS tests stated that she did not know how to
conduct a required monthly test. The EAS receipts also showed that
required weekly EAS tests were not transmitted by the stations between
July 30, 2002 and January 3, 2003, with the exception of one required
weekly test transmitted on August 14, 2002. At the time of the
inspection, no EAS receipts or logs were available for inspection for
the period from January 4, 2003 to March 11, 2003. The EAS receipts
provided for the period of time between March 12, 2003 and April 15,
2003, showed no required monthly EAS tests received or retransmitted by
stations KIQQ-AM/FM. No log entries existed in any station log
identifying the cause of any of the failures to receive the required
tests.

**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 any rule, regulation or order issued by the
Commission there under, 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 and the
term "repeated" means the commission or omission of the act more than
once or for more than one day.[^4]

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.[^5] 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.[^6] 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.[^7] Required monthly and weekly tests originate from EAS
Local or State Primary sources and must be retransmitted by the
participating station.[^8]

5\. 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.[^9]
Section 11.61 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.[^10] 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.

6\. A comprehensive review of the station log for the period beginning
July 30, 2002 through January 3, 2003, revealed that Moon Broadcasting
did not transmit any of the required monthly EAS tests during this time
period. The EAS receipts also showed that required weekly EAS tests were
not transmitted by the stations between July 30, 2002, and January 3,
2003, with the exception of one required weekly test transmitted on
August 14, 2002. There were no entries in the station's log to indicate
any problem or malfunction of the EAS equipment or entries specifying
any particular reasons for the failure of the EAS apparatus to receive
test transmissions as required by Sections 11.35(a) and 11.61(a)(1) of
the Rules. Based on the evidence before us, we find Moon Broadcasting
repeatedly violated Sections 11.35(a), 11.61(a)(1) and 11.61(a)(2) of
the Rules by failing to conduct required monthly and weekly EAS tests
and failing to determine the cause of failures to receive required
monthly and weekly EAS tests.

7\. *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(b)(4) of the Rules
sets forth the base forfeiture amounts for various violations of the
Commission's Rules. The Rules do not establish a base forfeiture amount
for violating the Commission's rules requiring EAS tests. Therefore, we
must determine an appropriate forfeiture amount for this violation.[^11]
The requirement that broadcast stations conduct EAS tests is similar in
both nature and severity to other required operational performance
checks identified in the Rules as required measurements or required
monitoring. Section 1.80(b)(4) of the Rules sets the base forfeiture
amount at \$2,000 for failure to make required measurements or conduct
required monitoring. Therefore, we will assess the base forfeiture for
failing to conduct EAS tests in the amount of \$2000. 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, and with
respect to the violator, the degree of culpability, and any history of
prior offenses, ability to pay, and other such matters as justice may
require."[^12] Considering the entire record and applying the factors
listed above, a \$2000 forfeiture is warranted for stations KIQQ-AM/FM.

**IV. ORDERING CLAUSES**

8\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80 of the Rules, Moon Broadcasting
Riverside, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of two thousand dollars (\$2,000) for repeated
violation of Sections 11.35(a), 11.61(a)(1) and 11.61(a)(2) of the Rules
by failing to conduct required monthly and weekly EAS tests.[^13]

9\. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this NAL, Moon Broadcasting
Riverside, LLC 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 must include the FCC Registration Number (FRN)
and the NAL/Acct. No. referenced in the caption.

11\. The response, if any, must be mailed to Federal Communications
Commission, Office of the Secretary, 445 12^th^ Street S.W., Washington
DC 20554, Attn: Enforcement Bureau-Spectrum Enforcement Division 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.

13\. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12^th^ 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 NAL shall be sent by
regular mail and Certified Mail Return Receipt Requested to Moon
Broadcasting Riverside, LLC, 1200 W. Venice Blvd., Los Angeles, CA
90006.

FEDERAL COMMUNICATIONS COMMISSION

Catherine Deaton

District Director, Los Angeles Office

> Enforcement Bureau

Enclosure: FCC List of Small Entities

[^1]: 47 C.F.R. §§ 11.35(a), 11.61(a)(1) and 11.61(a)(2).

[^2]: 47 U.S.C. §503(b).

[^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 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
    4387-88 (1991). Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2),
    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."

[^5]: 47 C.F.R. §§ 11.11 and 11.41.

[^6]: 47 C.F.R. §§ 11.1 and 11.21.

[^7]: 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.

[^8]: *See* 47 C.F.R. §§ 11.51, 11.61. *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).

[^9]: 47 C.F.R. § 11.35(a) and (b).

[^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 Rcd 17087 (1997), *recon. denied* 15 FCC Rcd 303 (1999);
    47 C.F.R. § 1.80(b)(4). The *Forfeiture Policy Statement* states
    that "...any omission of a specific rule violation from
    the...\[forfeiture guidelines\]...should not signal that the
    Commission considers any unlisted violation as nonexistent or
    unimportant.." *Forfeiture Policy Statement*, 12 FCC Rcd at 17099.
    The Commission retains the discretion, moreover, to depart from the
    Forfeiture Policy Statement and issue forfeitures on a case-by-case
    basis, under its general forfeiture authority contained in Section
    503 of the Act. *Id.*

[^12]: 47 U.S.C. § 503(b)(2)(D).

[^13]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80, 11.35(a),
    11.61(a)(1) and 11.61(a)(2).

[^14]: See 47 C.F.R. § 1.1914.