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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Pilgrim Communications, Inc. ) File Number EB-02-DV-436
) NAL/Acct. No. 200332800008
Licensee of Station KDMN(AM) ) FRN 0006-1624-73
Buena Vista, Colorado )
Facility ID #1153 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 31, 2002
By the District Director, Denver Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Pilgrim Communications, Inc., ("Pilgrim"), licensee of
Station KDMN, in Buena Vista, Colorado, apparently willfully and
repeatedly violated Section 73.49 of the Commission's Rules ("Rules")1
by failing to provide an effective locked fence enclosing the
station's antenna structure. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended ("Act"),2 that Pilgrim
is apparently liable for a forfeiture in the amount of seven thousand
2. During an inspection on October 28, 2002, a FCC agent from the
Denver Office inspected the registered antenna structure for AM
station KDMN, in Buena Vista, Colorado, (ASR# 1233212), licensed to
Pilgrim. The base fencing was constructed close to the tower
structure. At the time of the inspection, the agent found the wooden
picket base fence damaged, allowing access to the radiating tower with
radio frequency potential at the base. In particular, the agent
observed large gaps between the wooden pickets that permitted easy
contact with the structure by merely reaching through the gaps in the
fence. In addition, the agent observed aged broken and damaged
pickets that created gaps sufficiently large for a child or small
adult to enter the enclosure.
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 of any rule,
regulation or order issued by the Commission thereunder, 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 such act more than once or for more than one
4. Section 73.49 of the Rules states in part that "[a]ntenna
towers having radio frequency potential at the base (series fed,
folded unipole, and insulated base antennas) must be enclosed within
effective locked fences or other enclosures." Pilgrim's license for
KDMN describes the antenna system as a series-excited radiator. A
"series excited" radiator may also be described as a "series fed"
radiator. The AM transmission fencing requirements thus apply to
station KDMN. The October 28, 2002, inspection of the KDMN antenna
structure found the fence enclosing the antenna structure to have
broken pickets and gaps between pickets, allowing access to the
radiating tower. Effective base fencing is an important safety
requirement. AM series-fed antenna structures radiate energy that
renders any physical contact with the antenna structure itself
extremely dangerous. In addition, AM antenna structures are capable
of generating radio frequency fields at the base of the antenna
structure that may exceed the Commission's maximum permissible
exposure guidelines. Effective base fencing is thus important to
prevent possible contact with the radiating structure and excessive
radio frequency radiation exposure.
5. Based on the evidence before us, we find that Pilgrim,
licensee of station KDMN, failed to enclose the AM transmission system
with an effective locked fence or other enclosure in willful and
repeated violation of Section 73.49 of the Rules. 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"),5 and Section 1.80 of the
Commissions Rules,6 for failure to comply with AM tower fencing 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,7 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, a $7,000 forfeiture is warranted.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of
the Communications Act of 1934, as amended,8 and Sections 0.111, 0.311
and 1.80 of the Commission's Rules,9 Pilgrim is hereby NOTIFIED of an
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven thousand
dollars ($7,000) for violation of Section 73.49 of the Rules.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules,10 within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Pilgrim SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
8. 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.
9. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Technical and Public Safety Division,
445 12th Street, S.W., Washington, D.C. 20554 and must include the
NAL/Acct. No. referenced in the caption.
10.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.
11.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 Operation Group, 445 12th Street, S.W.,
Washington, D.C. 20554.11
12.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 and 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 Communications Act. If you have questions
regarding any of the information contained in Attachment A, please
contact OCBO at (202) 418-0990.
13.IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by First Class and Certified Mail 7001 0320
0002 9702 9455, Return Receipt Requested, to Gene Hood, Pilgrim
Communications, Inc., 54 Monument Circle, Suite #250, Indianapolis, IN
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
Enclosure: Attachment A
1 47 C.F.R. § 73.49.
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 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 Rcd 4387 (1991). Section
312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that ?[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 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 1.80.
11 See 47 C.F.R. § 1.1914.