Click here for Adobe Acrobat version
Click here for Microsoft Word version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************




                            Before the
                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:

                           I.  INTRODUCTION

     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 
dollars ($7,000).


                            II.  BACKGROUND

     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.  


                           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 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 
day.4 

     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  
46204.

                                   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.