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

In the Matter of                )
                                )
Forrester, et al.               )   File Number EB-02-OR-354     
Licensee of KLYR(AM)            )   NAL/Acct. No. 200332620010
Clarksville, Arkansas           )   FRN:  0003-7846-91
                                )

                        FORFEITURE ORDER 

Adopted:  June 18, 2004                 Released:  June 22, 2004 

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary forfeiture in the amount  of four thousand four  hundred 
dollars ($4,400) to Forrester  et al.  (``Forrester''),  licensee 
of KLYR(AM),  Clarksville,  Arkansas, for  willful  violation  of 
Section 73.49 of the Commission's Rules (``Rules'')1.  The  noted 
violation involved failure to maintain an effective locked  fence 
around the base of the antenna tower for radio station KLYR(AM).

     2.   On February  19, 2003,  the Commission's  New  Orleans, 
Louisiana Field Office (``New Orleans Office'') released a Notice 
of Apparent Liability  for Forfeiture (``NAL'')  to Forrester  in 
the  amount  of  seven  thousand  dollars  ($7,000)  for  willful 
violation of Section  73.49 of the  Rules.2    Forrester filed  a 
response on March 20, 2003.
 
     3.   In its response  to the NAL,  Forrester denies that  it 
willfully violated Section  73.49 of the  Rules. Forrester  seeks 
cancellation or significant  reduction of the  forfeiture on  the 
following grounds:   physical circumstances  precluded access  to 
the tower;  Forrester  was  in  the  process  of  addressing  the 
violation at  the time  the  agent arrived;  the licensee  has  a 
history of  compliance  with  the  Commission's  Rules;  and,  an 
inability to pay.

                         II.  BACKGROUND

On November  6,  2002,  an  agent from  the  New  Orleans  Office 
inspected radio station KLYR(AM).  At the time of the inspection, 
the fence around  the field in  which the tower  was located  had 
numerous openings with no fencing, affording unrestricted  access 
to the tower.  In addition, there was no fence at the base of the 
tower.  The tower had radio frequency potential at the base. 

  

                        III.  DISCUSSION

The proposed  forfeiture  amount in  this  case was  assessed  in 
accordance with Section 503(b) of the Communications Act of 1934, 
as amended  (``Act''),3  Section  1.80 of  the  Rules,4  and  The 
Commission's Forfeiture Policy Statement and Amendment of Section 
1.80 of the Rules to  Incorporate the Forfeiture Guidelines.5  In 
examining  Forrester'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 such  other matters  as 
justice may require.6              

Section 73.49 of  the Rules requires  that antenna towers  having 
radio  frequency  potential  at  the  base  be  enclosed   within 
effective locked fences  or other  enclosures.  Forrester  states 
that the transmitter site is bordered by water, pastureland,  and 
a highway, that there is  no sidewalk or other pedestrian  access 
from which passersby would gain access  to the site, that a  ``No 
Trespassing'' sign is posted on  the pasture, and that there  are 
no nearby ``parks, picnic grounds or other public facilities'' to 
help induce members  of the  general public  or uninvited  guests 
onto the site.    However, these assertions  do not mitigate  the 
fact that  Forrester  failed to  demonstrate  that there  was  an 
effective locked fence or other enclosure surrounding the base of 
the tower and establish that it complied with the requirements of 
Section 73.49 of  the Commission's Rules.   Accordingly, we  find 
that Forrester willfully7 violated Section 73.49.

The Commission may reduce a forfeiture based on a licensee's good 
faith, if the company proves that  it began a process to  correct 
the  violation  charged  before  Commission  involvement.8  Here, 
Forrester states that at  the time the  FCC inspector arrived,  a 
three-person crew was  at the  site conducting work  on the  KLYR 
tower and, within 24 hours after the inspection, a new fence  was 
installed at  the site  surrounding the  tower.  Thus,  Forrester 
appears to  have  been  acting  in  good  faith  to  correct  the 
violation prior to the Commission  inspection and a reduction  of 
the forfeiture on this basis is warranted.

Forrester offers  no evidence  to support  its inability  to  pay 
claim.   According  to   Forrester,  ``KLYR   is  a   financially 
struggling AM  station  serving  a very  small  and  economically 
depressed area,'' and that the station is operating ``in the face 
of serious  financial difficulties.''   Paragraph 10  of the  NAL 
sets forth the information necessary to substantiate an inability 
to pay claim.   Further, the Commission  has determined that,  in 
general, a licensee's  gross revenues are  the best indicator  of 
its ability to pay a forfeiture.  Forrester has failed to provide 
the  required   information,   including  its   gross   revenues.  
Accordingly, Forrester has failed to demonstrate an inability  to 
pay the forfeiture.  

Finally, in support of its request for cancellation or reduction, 
Forrester states that it  has a long  history of compliance  with 
FCC rules and  that KLYR has  only been cited  for one  technical 
rule violation, 19 years ago, in over 50 years as a licensee.  We 
have reviewed Commission records and concur.

 Considering the entire record  and the factors listed above,  we 
find that  reduction  of  the proposed  forfeiture  is  warranted 
because of  Forrester's general  history of  compliance with  the 
Commission's Rules  and  its  good  faith  efforts  to  cure  the 
violation prior  to  Commission  involvement.   Accordingly,  the 
forfeiture amount is reduced from seven thousand dollars ($7,000) 
to four thousand four hundred dollars ($4,400).   

                      IV.  ORDERING CLAUSES

     4.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the Act9, and  Sections 0.111, 0.311 and 1.80(f)(4)  of 
the Commission's  Rules10,  Forrester  ET AL  , IS  LIABLE FOR  A 
MONETARY FORFEITURE in the amount  of four thousand four  hundred 
eighty dollars  ($4,400) for  its  willful violation  of  Section 
73.49 of the Rules.

     5.   Payment of the forfeiture shall  be made in the  manner 
provided for in Section 1.80  of the Commission's Rules11  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.12   Payment may be  made by credit  card through  the 
Commission's Credit and Debt Management Center at (202)  418-1995 
or 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  the   NAL/Acct.   No. 
200332620010, and FRN:  0003-7846-91 referenced above.   Requests 
for full payment  under an  installment plan should  be sent  to: 
Chief, Credit and Debt Management Center, 445 12th Street,  S.W., 
Washington, D.C. 20554.13
     6.   
     7.   







     13.  IT IS FURTHER  ORDERED that a  copy of this  Forfeiture 
Order shall be  sent by  First Class and  Certified Mail,  Return 
Receipt Requested, to Forrester ET AL, P.O. Box 188, Clarksville, 
Arkansas 72830 and  a copy  to its  counsel, Lawrence  Bernstein, 
Esq., Law Offices of Lawrence Bernstein, 1818 N Street, NW, Suite 
700, Washington, D.C.  20036. 


                         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. 
200332620010 (Enf. Bur.,  New Orleans  Office, released  February 
19, 2003).

3 47 U.S.C.  503(b).

4 47 C.F.R.  1.80.

5 12 FCC Rcd 17087 (1997),  recon. denied, 15 FCC Rcd 303 (1999).  

6 47 U.S.C.  503(b)(2)(D).

7 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,' 
... 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).

8      See  A-O  Broadcasting   Corp.,  File  No.   EB-01-DV-334, 
NAL/Acct. No. 200332800001 (Enf. Bur. 2003); see also  Barinowski 
Investment Co, 18 FCC Rcd 25067, 25069 (2003). 

9 47 U.S.C.  503(b).

10 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

11 47 C.F.R.  1.80.

12 47 U.S.C.  504(a).

13 See 47 C.F.R.  1.1914.