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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Spirit of Alaska Broadcasting, Inc. ) File Number: EB-08-AN-0111
Permittee of AM Broadcast Station ) NAL/Acct. No.: 200932780001
Wasilla, Alaska ) FRN: 0004973970
Facility ID 161023 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 30, 2009
By the Resident Agent, Anchorage Resident Agent Office, Western Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Spirit of Alaska Broadcasting, Inc. ("Spirit"), permittee of
station KMBQ(AM), in Wasilla, Alaska, apparently willfully and
repeatedly violated Section 73.49 of the Commission's Rules ("Rules")
by failing to enclose the KMBQ antenna tower within an effective
locked fence or other enclosure. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Spirit is apparently liable for forfeiture in the amount of seven
thousand dollars ($7,000).
2. On February 5, 2009, in response to a complaint, at approximately
10:00 a.m. AST, agents from the Enforcement Bureau's Anchorage
Resident Agent Office ("Anchorage Office"), accompanied by the
President of Spirit, conducted an inspection of the KMBQ(AM)
transmitter and antenna site, located at 6362 East Chinook Avenue,
Wasilla, Alaska. The President of Spirit stated that KMBQ(AM) began
broadcasting on December 12, 2008. The agents observed that general
access to the site as well as the antenna site, at the time of the
inspection, appeared to be under construction. Access was through a
partially cleared stand of trees, off of East Chinook Avenue, which
required navigating the Commission vehicle around tree stumps and
3. The inspection of the antenna tower installation revealed that Spirit
had installed a Valcom V-3305/AM CL2 antenna, as indicated in Spirit's
original construction permit for KMBQ(AM). The agents observed that
the transmitter was connected via a buried coaxial cable to the
antenna's impedance matching unit (at the base of the tower) and that
a bare copper wire was in evidence from the impedance matching unit
connected to a terminal near the base of the antenna. As the Valcom
antenna is a base fed antenna, Spirit installed a plastic "snow fence"
enclosing the base of the antenna. The snow fence was approximately
thirty-six inches tall and approximately six feet from the base of the
antenna, supported with wooden stakes, some partially driven into the
ground, concrete blocks and rope. Spirit's President acknowledged that
the fence did not impede access to the antenna tower by humans or
animals and indicated that access issues delaying construction of the
site overall, the onset of winter weather conditions, and the frozen
ground, prevented completion of the site and the fence. The agents
observed that there were several residences within 300 to 500 yards of
the antenna tower, and there was no perimeter fence impeding access to
the KMBQ(AM) antenna site.
4. On April 22, 2009, an Anchorage agent again inspected the KMBQ(AM)
transmitter and antenna site. At this time, the agent observed that
the antenna tower was surrounded by a substantial six foot high chain
link metal fence which fully enclosed the antenna structure.
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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
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. 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." At the time
of the inspection on February 5, 2009, the Anchorage agents observed
that there was no effective locked fence or other barrier surrounding
the base of the KMBQ(AM) antenna structure. The agents noted that
there was no perimeter fence surrounding the KMBQ(AM) antenna site and
that there were residences approximately 300 to 500 yards from the
KMBQ(AM) antenna site.
7. The KMBQ(AM) antenna tower has frequency potentially at its base and,
pursuant to Section 73.49, the KMBQ(AM) tower must be enclosed within
an effective locked fence or other enclosure. At the time of the
inspection, the KMBQ(AM) antenna tower was not effectively enclosed.
Further the president of KMBQ(AM)'s permittee acknowledged that the
fence as constructed did not effectively impede access to the base of
the antenna tower. Spirit was aware that the fence around the
KMBQ(AM) antenna tower was ineffective, therefore, the violation was
willful. It occurred on more than one day, therefore, it was repeated.
Based on the evidence before us, we find that Spirit apparently
willfully and repeatedly violated Section 73.49 of the Rules by
failing to enclose the KMBQ(AM) antenna tower within an effective
locked fence or other enclosure.
8. 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 maintain an effective AM base
fence 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.
Although Spirit subsequently improved the fence surrounding the
KMBQ(AM) tower after the Anchorage Office inspection, we note that the
Commission has stated in the past that a licensee is expected to
correct errors when they are brought to the licensee's attention and
that such correction is not grounds for a downward adjustment in the
forfeiture. Accordingly, applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we
conclude that Spirit is apparently liable for a $7,000 forfeiture.
IV. ORDERING CLAUSES
9. 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, Spirit of Alaska
Broadcasting, Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of seven thousand dollars ($7,000) for
violations of Section 73.49 of the Rules.
10. 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, Spirit of Alaska
Broadcasting, Inc, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. 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. Spirit of Alaska Broadcasting,
Inc, will also send electronic notification on the date said payment
is made to WR-Response@fcc.gov.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Anchorage Resident
Agent Office, P.O. Box 221849, Anchorage, AK 99522-1849 and must
include the NAL/Acct. No. referenced in the caption. An electronic
copy shall be sent to WR-Response@fcc.gov.
13. 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.
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 Spirit of Alaska Broadcasting, Inc.,
at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
David J. Charlton
Anchorage Resident Agent Office
KMBQ(AM)'s original construction permit was granted on December 15, 2005,
and expired December 15, 2008, see File No. BNP-20050118ALF.
47 C.F.R. S: 73.49.
47 U.S.C. S: 503(b).
KMBQ(AM) currently has a license to cover pending with the Commission, see
File No. BL-20081216BLM, accepted for filing December 22, 2008.
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 an Operational Regulations of Part 73, Subpart A,
AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, P:6 (1986)
("Report and Order").
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).
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76 (2002).
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