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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Commonwealth License ) File Number: EB-01-DV-138
Subsidiary, LLC ) NAL/Acct. No. 200232800004
) FRN 0003-7484-98
Licensee of Station KLMR(AM) )
Lamar, Colorado )
Facility ID #174
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 30, 2002
By the District Director, Denver Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Commonwealth License Subsidiary, LLC ("Commonwealth"),
licensee of station KLMR, in Lamar, Colorado, apparently willfully
violated Section 73.49 of the Commission's Rules ("Rules"),1 by
failing to provide an effective locked fence enclosing the station's
antenna structures. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"),2 that Commonwealth is
apparently liable for a forfeiture in the amount of seven thousand
2. On April 25, 2001, a Denver Office Agent inspected station
KLMR's two antenna structures (NE#1 tower ASR number 1023201 and SW#2
tower ASR 1023200). The inspection revealed that the wooden fence
around the NE#1 tower was approximately four feet tall, the gate on
the fence was not locked and several wooden pickets were missing. The
wooden fence around the SW#2 tower was also only approximately four
feet tall and had large openings with missing wooden pickets. Neither
fence represented an effective enclosure of the tower.
3. On December 7, 2001, the Denver Office issued a Notice of
Violation ("NOV") to Commonwealth for the violations detected on April
25, 2001. On December 27, 2001, Commonwealth submitted a reply to the
NOV. Commonwealth indicated that on the afternoon of April 25, 2001,
following the inspection by the FCC agent, the gate lock to NE#1 tower
was secured. Commonwealth stated that the missing wooden pickets from
the fence enclosing the NE#1 and SW#2 towers were replaced on April
26, 2001. Commonwealth further represented that a six-foot tall fence
would be constructed ten feet from the tower base on all sides for the
NE#1 tower. Commonwealth's reply did not clearly state it's
intentions regarding the overall height of the fence around SW#2
4. Section 503(b) of the Act provides that any person who
willfully fails to comply substantially with the terms and conditions
of any license, or willfully 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.1
The term "willful" as used in Section 503(b) has been interpreted to
mean simply that the acts or omissions are committed knowingly.2
5. 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." KLMR's license
describes the antenna system as a series excited vertical radiator. A
"series excited" radiator may also be described as a "series fed"
radiator. The AM transmission fencing requirements thus apply to
station KLMR. The inspection of the two KLMR towers revealed that the
NE#1 tower's gate at the base fence was not locked, several wooden
pickets were missing, and the overall fence height did not represent
an effective enclosure of the tower. The SW#2 tower's base fence had
large openings with missing wooden pickets and the overall fence
height did not represent an effective enclosure of the 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.
6. Based on the evidence before us, we find that Commonwealth
failed to enclose the AM transmission system for station KLMR with
effective locked fences or other enclosures in willful violation of
Section 73.49 of the Commission's 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"),3 and Section 1.80 of the Rules,4 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,5 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
7. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of
the Communications Act of 1934, as amended, and Sections 0.111, 0.311
and 1.80 of the Commission's Rules, Commonwealth License Subsidiary,
LLC, 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.6
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Commonwealth License Subsidiary, LLC,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
9. 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.
10. 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.
11. 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.
12. 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 Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.7
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4405,
Return Receipt Requested, to Commonwealth License Subsidiary, LLC,
2550 Fifth Avenue, Suite 723, San Diego, CA 92103.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
1 47 C.F.R. § 73.49.
2 47 U.S.C. § 503(b).
1 47 U.S.C. § 503(b).
2 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).
3 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80 and 73.49.
7 See 47 C.F.R. § 1.1914.