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

In the Matter of                 )
                                 )
Butterfield Broadcasting         )                    EB-04-ST-263
Corporation                      )
                                 )     NAL/Acct. No.: 200532980003
Licensee of AM Station KULE      )                 FRN: 0004281150
Ephrata, Washington              )


             NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                              Released:  December 
                                                         14, 2004

By the District Director, Seattle Office, Western Region, 
Enforcement Bureau:

I.   INTRODUCTION

      1.  In this Notice of Apparent Liability for Forfeiture 
 ("NAL"), we find that Butterfield Broadcasting Corporation 
 ("Butterfield"), licensee of station KULE, in Ephrata, 
 Washington, apparently willfully and repeatedly violated 
 Section 73.49 of the Commission's Rules ("Rules")1 by failing 
 to effectively enclose its AM broadcast tower.  We conclude, 
 pursuant to Section 503(b) of the Communications Act of 1934, 
 as amended ("Act"),2 that Butterfield is apparently liable for 
 a forfeiture in the amount of seven thousand dollars ($7,000).

II.  BACKGROUND

      2.  On July 12, 2004, an agent from the Commission's 
 Seattle Field Office conducted an inspection of the AM antenna 
 tower used by Butterfield to broadcast AM station KULE. 
 According to its license, the KULE antenna tower is series fed 
 and, therefore, required to be fenced. Upon inspection of the 
 antenna tower, the field agent found that the gate at the 
 perimeter of the antenna site was broken and open.3    
 Specifically, on the north and west sides of the fence, the 
 fence and fence frame extended almost to the ground.  On the 
 east and south sides of the fence, however, the ground sloped 
 downward.  The fence did not compensate for the slope of the 
 ground, creating a 12 to 18 inch gap between the ground and the 
 start of the fence.  This gap, which ran along the entire 
 length of the 20 foot east side and the 10 foot south side, was 
 large enough to allow access to the interior of the fence and 
 the base of the tower.  

      3.  On July 13, 2004, an agent from the Seattle Field 
 Office conducted a broadcast inspection at station KULE in 
 Ephrata, Washington.  The field agent was accompanied by the 
 station manager of KULE to the AM antenna tower site.  At the 
 site, the agent informed the KULE station manager that the 
 perimeter gate was broken and that the antenna tower base fence 
 did not effectively enclose the base of the antenna tower.  The 
 KULE station manager stated that he would fix the base fence.

      4.  On August 9, 2004, an agent from the Seattle Field 
 Office again conducted an inspection of the KULE antenna tower.  
 The field agent found that the gate at the perimeter of the 
 antenna site remained broken and open, and that the antenna 
 tower base fence was not repaired to effectively enclose the 
 antenna tower.

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.  The term "willful" 
 as used in Section 503(b) has been interpreted to mean simply 
 that the acts or omissions are committed knowingly.4  The term 
 ``repeated'' means the commission or omission of such act more 
 than once or for more than one day.5

      6.  Section 73.49 of the Rules states that antenna 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.6  The KULE 
 AM antenna tower is series fed.  At the time of the July 
 inspection, the fence at the base of the KULE AM antenna tower 
 did not effectively enclose the antenna.  On the south and east 
 sides of the antenna tower fence, there was a significant gap 
 at the base of the fence.  During the July inspection, a 
 Commission field agent warned the KULE station manager about 
 the fence and the station manager said the fence would be 
 fixed.  During the August inspection, the field agent found 
 that the fence had not been fixed and that the gap in the fence 
 allowed public access to the AM antenna tower.  Butterfield had 
 been warned by a Commission field agent of the violation 
 concerning the fence, therefore, the violation was willful.  
 The violation occurred on more than one day, therefore it was 
 repeated.  Based on the evidence before us, we find that 
 Butterfield willfully and repeatedly violated Section 73.49 of 
 the Rules by failing to enclose the KULE AM antenna tower 
 within an effective enclosed fence.

      7.  Pursuant to The Commission's Forfeiture Policy 
 Statement and Amendment of Section 1.80 of the Rules to 
 Incorporate the Forfeiture Guidelines, ("Forfeiture Policy 
 Statement"), and Section 1.80 of the Rules, the base amount for 
 failure to maintain an effective AM tower fence is seven 
 thousand dollars, $7,000.7  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, which 
 include the nature, circumstances, extent, and gravity of the 
 violations, 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.8  Applying the 
 Forfeiture Policy Statement, Section 1.80, and the statutory 
 factors, 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, and 
 Sections 0.111, 0.311 and 1.80 of the Commission's Rules, 
 Butterfield Broadcasting Corporation is hereby NOTIFIED of this 
 APPARENT LIABILITY FOR A FORFEITURE in the amount of seven 
 thousand dollars ($7,000) for violation of Section 73.49 of the 
 Rules.9

      9.  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 for Forfeiture, 
 Butterfield Broadcasting Corporation 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 must be made by check or 
 similar instrument, payable to the order of the Federal 
 Communications Commission.  The payment must include the 
 NAL/Acct. No. and FRN No. referenced above.  Payment by check 
 or money order may be mailed to Forfeiture Collection Section, 
 Finance Branch, Federal Communications Commission, P.O. Box 
 73482, Chicago, Illinois 60673-7482.  Payment by overnight mail 
 may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor 
 Mailroom, Chicago, IL 60661.  Payment by wire transfer may be 
 made to ABA Number 071000013, receiving bank Bank One, and 
 account number 1165259.

      11.      The response, if any, must be mailed to Federal 
 Communications Commission, Enforcement Bureau, Western Region, 
 Seattle Office, 11410 NE 122nd Way, Ste. 312, Kirkland, 
 Washington, 98034-6927 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 for Forfeiture under an 
 installment plan should be sent to: Chief, Revenue and 
 Receivables Operations Group, 445 12th Street, S.W., 
 Washington, D.C. 20554.10

      14.      IT IS FURTHER ORDERED that a copy of this Notice 
 of Apparent Liability for Forfeiture shall be sent by Certified 
 Mail, Return Receipt Requested, and regular mail, to 
 Butterfield Broadcasting Corporation, 706 Butterfield Road, 
 Yakima, Washington, 98901.  A copy of this Notice of Apparent 
 Liability will be sent to KULE-AM at 910 Basin St SW, Ephrata, 
 Washington, 98823


                              FEDERAL COMMUNICATIONS COMMISSION


                              
                              Dennis J. Anderson
                              District Director
                              Seattle Office
                              Western Region
                              Enforcement Bureau
_________________________

147 C.F.R.  73.49.
247 U.S.C.  503(b).  
3The  antenna  site  is  a  short  distance  from  a  residential 
community. 
4Section 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).
5Section 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.'' 
647 C.F.R.  73.49. 
712 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.
847 U.S.C.  503(b)(2)(D).
947 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 1.80, 73.49.
10See 47 C.F.R.  1.1914.