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                           Before the
                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
                                )
                                )
                                )
                                )


                        FORFEITURE ORDER

   Adopted:  June 30, 2004              Released:  July 2, 2004

By the Chief, Enforcement Bureau:

I. INTRODUCTION

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.
II. BACKGROUND

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.    
     III.  DISCUSSION
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 
  Commission Rules.6   
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 
  reduced.10
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 
  warranted. 
     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 
  Rules.
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, 
2002.
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 
(1992).
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.