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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
Pilgrim Communications, Inc. ) FILE Number EB-02-DV-436
Station KDMN (AM), ) NAL/Acct. No. 200332800008
Buena Vista, CO ) FRN 0006-1624-73
Adopted: June 30, 2004 Released: July 2, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a monetary
forfeiture in the amount of seven thousand dollars ($7,000),
to Pilgrim Communications, Inc. (``Pilgrim''), licensee of AM
Station KDMN, Buena Vista, Colorado, for willful and repeated
violation of Section 73.49 of the Commission's Rules
(``Rules'').1 The noted violation involves Pilgrim's failure
to keep KDMN's antenna structure enclosed within an effective
locked fence or other enclosure.
2. On December 31, 2002, the Commission's Denver, Colorado,
Field Office (``Denver Office'') issued a Notice of Apparent
Liability For Forfeiture2 (``NAL'') in the amount of seven
thousand dollars ($7,000) to Pilgrim for willful and repeated
violation of Section 73.49 of the Rules. Pilgrim filed a
response on January 30, 2003, and supplemented its response on
February 20, 2003.
3. On October 28, 2002, a Commission agent from the Denver
Field Office inspected the KDMN antenna site and observed that
the fencing surrounding the base of the antenna was
constructed close to the antenna structure and contained large
gaps between wooden pickets permitting easy contact with the
AM antenna from outside the fence. Further, the agent from
outside the fence observed that the fence had broken pickets
allowing access to children and small adults. On December 31,
2002, the Denver office issued an NAL for the failure to have
an effective locked fence around KDMN's antenna structure in
willful and repeated violation of Section 73.49 of the Rules.
4. In its January 30, 2003, response, as supplemented on
February 20, 2003, Pilgrim did not contest the findings in
the NAL regarding the violation. However, Pilgrim requested
cancellation of the forfeiture, citing an inability to pay.
In support, Pilgrim described losses from a prior burglary and
submitted its tax returns from 1998-2001. Pilgrim also
described remedial measures undertaken as further
justification for forfeiture cancellation.
5. 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, 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC
Rcd 303 (1999). In examining Pilgrim'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.5
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. According
to Pilgrim's license, its antenna system is described as a
series - excited or series fed radiator that radiates energy.
The AM transmission fencing requirements thus apply to the
antenna structure for Station KDMN. Effective base fencing is
an important safety requirement to prevent physical contact
with the KDMN antenna structure. The agent observed in her
October 28, 2002, inspection of KDMN that the fence
surrounding KDMN's antenna structure had aged broken and
damaged pickets that had created sufficiently large gaps
between the pickets which allowed access to the AM antenna.
Based on the agent's inspection, we find that Pilgrim
willfully and repeatedly violated Section 73.49 of the
7. In its response, Pilgrim acknowledges the deficiencies noted
by the agent and cites efforts to cure them in seeking
cancellation. The Commission has repeatedly stated that
remedial actions taken to correct a violation are expected and
as such are not mitigating factors warranting reduction of a
forfeiture.7 Additionally, in support of its financial
hardship claim, Pilgrim submits copies of its 1998, 1999, 2000
and 2001 federal income tax returns.8 The Commission has
determined that, in general, a licensee's gross revenues are
the best indicator of its ability to pay a forfeiture.9 After
reviewing the financial data submitted, we find that the
proposed monetary forfeiture should not be cancelled or
8. We have examined Pilgrim's response to the NAL pursuant to
the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Pilgrim Communications, Inc. willfully and
repeatedly violated Section 73.49 of the Rules and find that
cancellation of the proposed monetary forfeiture is not
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b)
of the Act and sections 0.111, 0.311 and 1.80(f) of the
Rules,11 Pilgrim Communications, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of seven thousand dollars ($7,000)
for willfully and repeatedly violating Section 73.49 of the
10. 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.12 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. 200332800008, and FRN 0006-
1624-73. Requests for full payment under an installment plan
should be sent to: Chief, Revenue and Receivable Group, 445
12th Street, S.W., Washington, D.C. 20554.13
11. IT IS FURTHER ORDERED that, a copy of this Order shall be
sent by Certified Mail, Return Receipt Requested, and by First
Class mail to Pilgrim's Counsel, Marnie K. Sarver, Wiley Rein
& Fielding, LLP, 1776 K Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSON
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 73.49
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332800008 (Enf. Bur. , Denver Office, released December 31,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 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). Repeated merely means that the act was
committed or omitted more than once, or lasts more than one day,
See Southern California Broadcasting Co., at 4388, ¶ 5; Callais
Cablevision, Inc., 16 FCC Rcd 1359 at 1362, ¶ 9 (2001).
7 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).
8 Since we consider only the three most recent federal income tax
returns, we are not considering the 1998 return.
9 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
10 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of he violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues). We
have reviewed Pilgrim's financial data in this case and two other
cases involving Pilgrim simultaneously and have determined it is
able to pay all the forfeitures. See Pilgrim Communications,
Inc., 19 FCC Rcd 8877 (Enf. Bur. 2004); Pilgrim Communications,
Inc., 19 FCC Rcd 8881 (Enf. Bur. 2004).
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.