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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
Adopted: October 9, 2003 Released: October 14,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order, (``Order''), we issue a
monetary forfeiture in the amount of five thousand five hundred
dollars ($5,500) to Commonwealth License Subsidiary, LLC
(``Commonwealth''), licensee of Station KLMR(AM), Lamar,
Colorado, for willful violation of Section 73.49 of the
Commission's Rules (``Rules'').1 The noted violation involves
Commonwealth's failure to provide effective locked fences
enclosing the station's two antenna structures.
2. On May 30, 2002, the Commission's Denver, Colorado
Field Office (``Denver Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of seven
thousand dollars ($7,000) to Commonwealth for the noted
violation.2 Commonwealth filed a response to the NAL on June 18,
3. On April 25, 2001, in response to a complaint, an agent
from the Denver Office inspected KLMR(AM)'s two antenna
structures, NE#1 tower antenna structure registration (``ASR'')
number 1023201 and SW#2 tower ASR number 1023200.3 The
inspection revealed that the wooden fence around the NE#1 tower
was only approximately four feet tall, the gate on the fence was
not locked and several wooden pickets were missing. The
inspection also revealed that 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 pursuant to Section 73.49 of
4. On December 7, 2001, the Denver Office issued a Notice
of Violation (``NOV'') to Commonwealth for the violations
discovered during the April 25, 2001 inspection. Commonwealth
submitted a reply to the NOV on December 27, 2001. Commonwealth
indicated that the gate lock to NE#1 tower was secured on April
25, 2001 after the agent's inspection, and that the missing
wooden pickets from the fences enclosing the NE#1 and SW#2 towers
were replaced on April 26, 2001. On May 30, 2002, the Denver
Office issued an NAL in the amount of $7,000 to Commonwealth for
failure to provide effective locked fences enclosing the
station's antenna structures. Specifically, the NAL noted that
at the time of the inspection, 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 NAL also indicated that the SW#2 tower's base
fence had large openings with missing wooden pickets and that the
overall fence height did not represent an effective enclosure of
5. In its response to the NAL, Commonwealth argues that
the proposed forfeiture should be cancelled because for the past
30 years, the fences surrounding each of its two towers have been
of sufficient height to protect anyone near the base of the
towers. Commonwealth also suggests that in light of the distance
between the towers and the nearest road, the towers are not
easily accessible. With respect to the open gate and the broken
pickets, Commonwealth contends that it corrected the problem
immediately as to each tower. In addition, Commonwealth
speculates that the problem was not due to ``chronic neglect,''
but may have been caused by ``severe weather'' that occurred in
the area on April 11, 2001. Commonwealth adds that since the
inspection, it has had the fence surrounding the NE#1 tower
replaced. Moreover, Commonwealth claims the fence surrounding
the SW#2 tower was missing only two pickets, that the existing
pickets were of adequate height, and that there was no damage to
the gate. Commonwealth also indicates that the SW#2 tower
generates a low amount of radiation. Further, Commonwealth
argues that according to the Office of Engineering and
Technology's (``OET'') Bulletin 65 Supplement A,4 the NE#1 tower
required a fence ``of no more than two meters less than eight
feet from tower base in all directions'' to be compliant with the
licensee's power and frequency, and that the Commission's
regulations are not specific as to the height of tower fences.
Moreover, Commonwealth contends that KLMR(AM) subscribed to the
FCC Alternative Broadcast Inspection Program through the Colorado
Broadcasters Association, and had an FCC Regulatory Compliance
Certification. Finally, Commonwealth asserts that the proposed
forfeiture amount issued to its ``small market station'' will
play a determining factor in its future financial existence.
6. The forfeiture amount in this case was proposed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended, (``Act'')5 Section 1.80 of the Rules,6 and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999). In
examining Commonwealth's response, Section 503(b) of the Act
requires that the Commission take into account the nature,
circumstances, extent and gravity of the violation and, with
respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and other such matters as
justice may require.7
7. Section 73.49 of the Rules provides that all AM antenna
towers having radio frequency (``RF'') potential at the base must
be enclosed within an effective locked fence or other enclosure.
Section 73.49 of the Rules does not require individual fences
around towers if the individual towers are contained within a
protective property fence. The agent's inspection found, inter
alia, the NE#1 tower did not represent an effective locked
enclosure because the northwest entry gate was standing open and
was not locked.8 With regard to Commonwealth's second tower, the
SW#2 tower did not represent an effective locked enclosure
because the fence had four gaps. Specifically, the fence had one
opening approximately 24 inches wide, another approximately 30
inches wide, and two openings each approximately 18 inches wide.
Thus, we find that the condition of the fences constituted a
safety hazard because they did not provide suitable protection to
the public from possible contact with the radiating structure.9
Commonwealth's argument that the fences have been in existence
for at least 30 years and are of sufficient height to protect
anyone near the towers is not persuasive because the gate to NE#1
was not locked and was open when the agent inspected the station.
Further, Commonwealth's argument that access to the towers is not
easy is unpersuasive, because the NE#1 tower, which was unlocked,
is only 350 feet from the station and nearest road. Commonwealth
states that it corrected the open gate on NE#1 and broken pickets
on the same day that the agent discovered the violation.
However, Commonwealth's remedial efforts to correct the violation
are not a mitigating factor.10 In addition, Commonwealth asserts
that the damage may have been caused by severe weather. However,
based on Commonwealth's response, after a 1998 report that its
fence complied with the rule, Commonwealth never inspected its
fence to ensure that it remained in compliance with the
Commission's rule. Therefore, in light of its conscious decision
not to check the fence during a nearly three-year period, we do
not believe that Commowealth's argument regarding the severe
weather event warrants reduction of the forfeiture amount.
8. Further, we are not persuaded by Commonwealth's
argument that the NE#1 tower required a fence of no more than two
meters less than 8 feet from the tower base in all directions to
be compliant with its power and frequency. OET Bulletin 65 does
not contain any reference to fence height. It does, however,
specify minimum distances from radiating elements. Section
1.1310 of the Rules establishes the criteria to be used to
evaluate the environmental impact of human exposure to RF
radiation based on the station's power. OET Bulletin 65 permits
the use of a fence to restrict access as one method to limit
human exposure to excessive RF radiation levels.11 Although OET
Bulletin 65 does not specify the type or condition of such
fencing, it clearly states that restricting access to the area
surrounding an AM tower is one method of complying with Section
1.1310 of the Rules. The fence used to limit human exposure to
excessive RF radiation levels under Section 1.1310 of the Rules
can also be used to meet the AM fencing requirements under
Section 73.49 of the Rules. However, it can only do so if the
fence is considered an ``effective locked fence or other
enclosure.'' Here, as indicated above, the fence surrounding
NE#1 was standing open and was not locked.
9. Regarding Commonwealth's argument that it had been
inspected under the FCC's voluntary FCC inspection program, had
passed the inspection and concluded that its fences complied with
FCC requirements, we do not disagree with Commonwealth that the
fences complied when the station was inspected on August 25, 1998
as part of the FCC's Alternative Broadcast Inspection Program
(``ABIP''). In fact, we assume that stations inspected under the
ABIP comply and we do not routinely inspect such stations. We
inspected Commonwealth, however, because we received a complaint
that one of its tower lights was inoperative and had been off for
a month. The agent noted the poor condition of the tower fences
while investigating whether the light was functioning properly.12
The ABIP agreement for the Colorado Broadcasters Association in
effect during the relevant period states, in pertinent part, that
the FCC is permitted to inspect a station during the pendancy of
an ABIP certification on the basis of a complaint. This
agreement does not prohibit the FCC from inspecting a station for
compliance with other public safety requirements during an
inspection conducted as a result of a complaint.13
10. Although Commonwealth suggests that the proposed
forfeiture will affect its future financial existence, it does
not submit any financial documentation from which we can assess
its ability to pay. Therefore, we decline to reduce the
forfeiture amount on this basis. We do, however, agree with
Commonwealth that their station appears to have an overall
history of compliance. For this reason we reduce the forfeiture
amount to $5,500.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,14 Commonwealth License Subsidiary, LLC IS LIABLE FOR A
MONETARY FORFEITURE in the amount of five thousand five hundred
dollars ($5,500) for failure to enclose its AM transmission
system for Station KLMR(AM) within effective locked fences or
other enclosures in willful violation of Section 73.49 of the
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.15
Payment shall be made by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should note NAL/Acct. No.
200232800004 and FRN 0003-7484-98. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
13. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail, Return Receipt Requested, to
Commonwealth License Subsidiary, LLC, 2550 Fifth Avenue, Suite
723, San Diego, CA 92103.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 73.49.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232800004 (Enf. Bur., Denver Office, released May 30, 2002).
3 The inspection was the result of the Denver Office's receipt of
information on April 25, 2001 that one of KLMR(AM)'s radio towers
had a light outage.
4 FCC OST/OET Bulletin Number 65, ``Evaluating Compliance with
FCC-Specified Guidelines for Human Exposure to Radio Frequency
Radiation (Supplement A).''
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 We need not reach Commonwealth's arguments regarding the height
of the fences since the entry gate to the NE #1 tower was not
9 Family Broadcasting Inc., 17 FCC Rcd 6180 (2002) (sustaining a
Summary Decision for violation of Section 73.49, but remanding on
other grounds) (finding based on a fence that had an opening that
permitted access to the antenna); MAPA Broadcasting, L.L.C., 16
FCC Rcd 22403 (2001) (forfeiture assessed where fence surrounding
the tower was unlocked); Culpeper Broadcasting Corporation, 15
FCC Rcd 12594 (2000) (forfeiture assessed for failure to maintain
effective locked fence where several boards were missing and gap
in fencing large enough to permit a person to climb through).
10 See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
11 The minimum distance depends on frequency and power.
12 The agent determined that the station had arranged for repair
of the light prior to his inspection and the FCC took no further
13 State associations, including the Colorado Broadcasters
Association, recently signed new ABIP agreements with the
Enforcement Bureau. The new agreements, effective on August 15,
2003, likewise provide that the FCC may inspect ABIP-certified
stations if there has been a complaint concerning non-compliance.
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.