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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Greeley Broadcasting Corporation
) File Number: EB-08-DV-0082
Licensee of Station KGRE-AM
) NAL/Acct. No. 200832800005
Antenna Structure Registrant
) FRN: 0005078597
Facility ID # 33821
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 29, 2008
By the District Director, Denver Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Greeley Broadcasting Corporation ("Greeley Broadcasting"),
licensee of station KGRE-AM in Greeley, Colorado, apparently willfully
and repeatedly violated Section 73.49 of the Commission's Rules
("Rules") by failing to enclose the KGRE-AM antenna structure, a tower
with radio frequency potential at the base, with an effective locked
fence or other enclosure. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended ("Act"), that Greeley
Broadcasting is apparently liable for a forfeiture in the amount of
seven thousand dollars ($7,000).
2. On March 14, 2008, at 3:15 p.m., agents from the Enforcement Bureau's
Denver Office conducted an inspection of an AM broadcast tower located
at approximately 40DEG 26' 15" north latitude and 104DEG 43' 27" west
longitude in Greeley, Colorado. Close observation revealed that the
lock to the gate for the fenced enclosure was not engaged. The agents
found the lock stuck in the open position and were unable to close it.
As a result the agents were able to gain access to the structure, a
series-fed antenna with an insulated base. The agents observed that
there were residences within 250 yards of the tower and there was no
perimeter fencing erected around the property to keep the public from
approaching the structure. A search of the Commission's database
on-scene indicated that KGRE-AM, licensed to Greeley Broadcasting, was
broadcasting from the structure.
3. Upon completion of the site inspection the Denver agents traveled to
the KGRE-AM main studio in Greeley, Colorado. When they arrived at the
studio at approximately 4:20 p.m., an oral warning was issued
regarding the base fencing violation to the staff member present. The
staffer then contacted the president of Greeley Broadcasting by phone
to talk with the agents. The agents conducted a telephone interview
with the executive, again issuing an oral warning for the non-secured
base fence. During the interview, the executive acknowledged that the
condition of the lock was a serious safety issue and he agreed to
remedy the situation immediately and to contact the agent as soon as
the repairs were completed. Later that day, at approximately 6:15
p.m., the executive notified the Denver agents, by cellular telephone
call, that the lock on the tower fence had been replaced.
4. On March 17, 2008, a Denver agent contacted the Greeley Broadcasting
executive to obtain more information about recent access to the
transmitter location. The executive admitted that he was unable to
close the existing lock when he arrived at the transmitter site on
March 14, 2008, to replace the device. When asked about recent site
activity, the owner responded that he could not recall the date of his
last visit to the site, but that he typically went there once a month
to do work inside the building. On these occasions, he did not enter
the fenced-in area around the tower base. Upon request, the owner
provided the agent with the name of the engineers who had conducted
work for the station on a contract basis.
5. On March 18, 2008, a Denver agent traveled to the KGRE-AM tower site
and verified that the lock had been replaced with a functioning
6. On March 21, 2008, a Denver agent contacted all three engineers whose
names had been provided by Greeley Broadcasting. Two of the engineers
claimed they had not been to the site in three months or longer. The
third engineer stated that he had been to the site approximately one
week prior to the Denver agents' inspection on March 14, 2008. As with
the two other contract engineers, this third engineer could not recall
the last time he had entered the fenced enclosure.
7. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
8. 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. Individual tower fences need not be
installed if the towers are contained within a protective property
fence. In adopting the Report and Order promulgating the most recent
amendment of Section 73.49, the Commission stated that "a fencing
requirement is necessary to protect the general public."
9. KGRE-AM broadcasts from a series-fed tower with an insulated base and,
pursuant to Section 73.49, must be enclosed with an effective locked
fence or other enclosure. The KGRE-AM tower is located adjacent to
residential development and there is no other perimeter fencing to
keep the public from approaching the structure. With no perimeter
fence, the base fence around the individual AM tower must be
effective. At the time of the March 14, 2008, inspection, the lock to
the gated, fenced enclosure surrounding the KGRE-AM tower was found
stuck in the unlocked position and the agents were unable to close it.
An executive of Greeley Broadcasting admitted to experiencing the same
difficulty when he inspected the lock later that day. With no working
lock on the gate, the agents were able to easily access the base of
the KGRE-AM tower, therefore, the fence surrounding the KGRE-AM tower
was ineffective. Interviews conducted by the Denver agents revealed
that no station employee or contractor had been to the KGRE-AM tower
site for at least a week prior to the Denver agents' inspection, and
of those that had visited KGRE-AM tower site in the last few months,
none acknowledged checking the lock or the gate at the site.
10. Greeley Broadcasting was aware of the requirement to maintain an
effective locked fence or enclosure surrounding the KGRE-AM tower,
given the fact it had maintained locks for the KGRE-AM tower fence in
the past. Therefore, its violation was willful. The violation occurred
on more than one day, therefore, it was repeated. Based on the
evidence before us, we find that Greeley Broadcasting apparently
willfully and repeatedly violated Section 73.49 of the Rules by
failing to maintain the KGRE antenna structure within an effective
11. 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 forfeiture amount for failing to enclose the antenna structure
within an effective locked fence or other enclosure 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)(E) 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. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Greeley Broadcasting is apparently liable for a
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Greeley 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.
13. 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, Greeley 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.
14. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. Greeley Broadcasting
Corporation will also send electronic notification on the date said
payment is made to WR-Response@fcc.gov.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver District
Office, 215 S. Wadsworth Boulevard, Suite 303, Lakewood, CO 80226 and
must include the NAL/Acct. No. referenced in the caption. An
electronic copy shall be sent to WR-Response@fcc.gov.
16. 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.
17. 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 Greeley Broadcasting Corporation.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
47 C.F.R. S: 73.49.
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 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. S: 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."
47 C.F.R. S: 73.49.
47 C.F.R. S: 73.49.
Review of the Technical and Operational Regulations of Part 73, Subpart A,
AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, P:6 (1986)
("Report and Order").
See Butterfield Broadcasting Corporation, 20 FCC Rcd 20237 (EB 2005).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.49.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission