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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554


In the Matter of                 )
                                 )    
Sam Bushman                      )    File Number EB-01-DV-388
                                 )    NAL/Acct. No. 200232800003
Licensee of Station KNAK(AM)     )    FRN 0003-7785-45
Delta, Utah                      ) 
Facility ID #35207               )    


              NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                                      
                                             Released:  May 17, 2002 

By the District Director, Denver Office, Enforcement Bureau:

                           I.  INTRODUCTION

     1. In this Notice of Apparent Liability for Forfeiture ("NAL"), 
we find that Sam Bushman, licensee of Station KNAK, in Delta, Utah, 
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 Sam Bushman is apparently liable for a 
forfeiture in the amount of seven thousand dollars ($7,000).


                            II.  BACKGROUND

     2. During a routine inspection on August 16, 2001, FCC Agents 
from the Denver Office inspected the registered antenna structure for 
AM station KNAK, in Delta, Utah (ASR# 1065027), licensed to Sam 
Bushman.  The agents found the gate to the fence enclosing the AM 
antenna structure lying on the ground, completely detached from the 
fence. 

     3. On December 27, 2001, the Denver Office issued a Notice of 
Violation ("NOV") to Sam Bushman for the violations observed on August 
16, 2001, including the violation of the AM transmission system 
fencing requirements in Section 73.49 of the Commission's Rules.  On 
January 18, 2002, the Denver Office received both a fax and e-mail 
reply to the NOV.  Mr. Bushman stated that the gate had collapsed due 
to "vandals and/or strong wind gusts," and that he was in the process 
of having the gate repaired.  On March 5, 2002, the Denver Office 
received photographs via e-mail from Mr. Bushman of the completed 
repairs to KNAK's gate and fence enclosing the antenna structure. 


     4. The December 27, 2001, NOV was the second NOV issued by the 
Denver Office to Sam Bushman for a violation by station KNAK of the AM 
transmission system fencing requirements.  On May 26, 1999, during an 
inspection of station KNAK, an Agent from the Denver Office found the 
east side of the fence enclosing this same antenna structure in poor 
repair with a large hole in the fence.  A NOV was issued to Sam 
Bushman on June 4, 1999, for multiple violations, including Section 
73.49.  Mr. Bushman responded on June 28, 1999, and provided 
photographic proof of the repairs.  


                           III.  DISCUSSION

     5. 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.4  

     6. 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."  KNAK's license 
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 KNAK.  
The May 26, 1999, inspection of the KNAK antenna structure found the 
fence enclosing the antenna structure broken on the east side allowing 
access to the radiating tower.  The August 16, 2001, inspection of the 
KNAK antenna structure revealed that the gate on the fence enclosing 
the antenna structure was not attached, therefore 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.

     7. Based on the evidence before us, we find that Sam Bushman, 
licensee of station KNAK 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

     8. 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 Sam Bushman 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, 47 
C.F.R. 73.49. 

     9. 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, Sam Bushman 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, 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.

     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 under an installment plan should be sent to:  
Chief, Revenue and Receivables Operation Group, 445 12th Street, S.W., 
Washington, D.C. 20554.11


     14.IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT 
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4092, 
Return Receipt Requested, to Sam Bushman, P. O. Box 636, 315 East 300 
South, Delta, UT  84624.

                                   FEDERAL COMMUNICATIONS COMMISSION

                                                         


                                   Leo E. Cirbo
                                   District Director, Denver Office





_________________________

     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), 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  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.