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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
Adopted: June 18, 2004 Released: June 22, 2004
By the Chief, Enforcement Bureau:
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.
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.
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
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
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.