$5,000 EAS Monthly Test Forfeiture Set Aside

This saga began on October 19, 2008, when an employee of KWVE who intended to run a scheduled weekly EAS test instead ran an unscheduled required monthly test (RMT), and then failed to transmit the End of Message (EOM) code and the message advising that the test had been concluded. As a result, KWVE commercial programming and an advertisement were transmitted as part of the RMT, causing other broadcast stations and cable systems in the area to retransmit this non-EAS material. The Commission investigated this incident in response to a complaint, ultimately leading to the September 17, 2009 issuance of a Notice of Apparent Liability for Forfeiture (NAL) against KWVE, stating that KWVE had willfully violated 11.61(a) of the FCC rules.

Industry reaction to this FCC action was vocal and strong. For example, a letter to the FCC dated October 14, 2009 on behalf of the State Broadcaster Associations urged the Commission to set aside the $5,000 forfeiture, pointing out that:

• KWVE had volunteered to serve as a local primary-one (LP-1) station, and the action in question occurred while performing these voluntary duties. KWVE quickly discovered their unintentional error and has since instituted corrective action, and this error has not been repeated;
  
• This fine could have the effect of deterring current LP-1 and primary entry point (PEP) stations from continuing to volunteer in these capacities, as well as deter newcomer stations from volunteering in the future;
  
• The loss of even a single LP-1 station could cause a states EAS plan to be in non-compliance, potentially posing serious risks to our Nation, our States, and local communities.
  

It appears that the Commission is sensitive to the voluntary nature of LP stations since, in their November 13, 2009 Order which sets aside the NAL, they indicate that we are mindful of the unique circumstances at issue, including the voluntary and critical nature of the service provided by local primary stations in enabling statewide EAS activity. In lieu of the $5,000 forfeiture, the FCC in its November 13 Order directs KWVE to submit within ninety (90) days a compliance report describing all EAS compliance measures undertaken since October 18, 2008 (e.g., any employee training or changes in station protocols) designed to prevent a recurrence of the violations at issue here, along with a certification by an officer of the company to the accuracy of such report.

Detailed procedures for conducting weekly and monthly EAS tests are included in the FCCs EAS Operating Handbooks (copies of which are available on the FCCs Web site at: www.fcc.gov/pshs/services/eas/handbooks.html) and are summarized here:

Weekly Tests:

• Weekly tests consist of transmitting:
  
>  EAS digital header codes;
>  EOM code.
(Note: two-tone attention signal and brief test script not required for weekly tests)

• Weekly tests must be conducted by EAS participants on different days and at different times.
  
• No weekly test is necessary during the week that a monthly test is conducted or when there is an EAS activation for a State or Local emergency.
  
• If you are unable to send weekly tests from your station, take the following actions:
  
>  Determine why no test was sent;
>  Check your station equipment;
>  Take appropriate corrective action;
>  Document your findings in the EAS record logs.

Monthly Tests:

• Monthly tests consist of transmitting:
  
>  EAS digital header codes;
>  the two-tone attention signal;
>  a brief test script;
>  EOM code;
    (for TV only) a visual display of header code data.

• Monthly tests must be retransmitted within 60 minutes of receipt.
  
• In odd months, monthly tests must be conducted between 8:30 a.m. to local sunset.
  
• In even months, monthly tests must be conducted between local sunset to 8:30 a.m.
  
• No monthly test is necessary during a month when there is an EAS activation that includes a two-tone alert signal and an audio message.
  
• If you are unable to send a monthly test received from your assigned monitoring sources, take the following actions:
  
>  Determine why no test was sent;
>  Check your station equipment;
>  Call your monitoring source(s);
>  Take appropriate corrective action;
>  Document your findings in the EAS record logs.

Weekly and Monthly tests:

• If you do not receive a test (either weekly or monthly) each week from your two assigned monitoring sources, take the following actions:
  
>  Determine why no test was received;
>  Check your station equipment;
>  Call your monitoring source(s);
>  Take appropriate corrective action;
>  Document your findings in the EAS record logs.