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


In the Matter of                 )
                                )
Kaspar Broadcasting Co. of       )    File No. EB-02-KC-757
Missouri                         )    NAL/Acct. No. 200332560001
Licensee of Station KWRE(AM)     )    FRN 0003-7474-82
Warrenton, Missouri

                  MEMORANDUM OPINION AND ORDER

Adopted:  March 16, 2004                Released:  March 19, 2004

By the Chief, Enforcement Bureau:  

I.   INTRODUCTION

     1.   In this Memorandum  Opinion and  Order (``Order''),  we 
cancel the  $7,000 Notice  of Apparent  Liability for  Forfeiture 
(``NAL'')  issued  to   Kaspar  Broadcasting   Co.  of   Missouri 
(``Kaspar''), licensee of Station KWRE(AM), Warrenton, Missouri.1   
The  NAL  found  that  Kaspar  failed  to  enclose  the   antenna 
structure, which  had  radio  frequency potential  at  its  base, 
within an effective locked fence or other enclosure, in  apparent 
willful violation  of Section  73.49  of the  Commission's  Rules 
(``Rules'').2   

II.  BACKGROUND

     2.   On September 11, 2002,  an agent from the  Commission's 
Kansas City, Missouri Office  (``Kansas City Office'')  conducted 
an on-site inspection  of Station  KWRE(AM)'s antenna  structure. 
The agent found that the gate to the fence enclosing the  antenna 
structure was  unlocked. On  October 28,  2002, the  Kansas  City 
Office released the NAL.  Kaspar filed  a response to the NAL  on 
November 8, 2002.3

     3.   In its  response,  Kaspar  did not  dispute  the  NAL's 
findings, but  sought  cancellation  of  the  NAL  based  on  the 
circumstances presented and its  past history of FCC  compliance. 
Specifically, Kaspar explained that during the inspection it  had 
been broadcasting a service commemorating the September 11,  2001 
tragedy from  the  local  firehouse (located  a  block  from  the 
station's antenna structure), that  it had experienced  technical 
difficulties with its  remote equipment, and  that its  employees 
left the gate open briefly (over  a period of thirty minutes)  to 
facilitate repairs to  the equipment  while providing  continuous 
coverage of the community memorial  event.4  But for the  unusual 
circumstances of  the  September  11th broadcast  and  the  brief 
thirty minute  period,  Kaspar stated  that  its practice  is  to 
maintain a locked gate.5  Kaspar also stated that, since 1936, it 
has held and  continues to  hold licenses  for various  broadcast 
stations, ``has never received a  notice of violation for any  of 
the FCC's rules,''  has been ``extremely  proud of the  record,'' 
and did not ``want  it blemished at this  late date because of  a 
misunderstanding.''6 

III.      DISCUSSION

     4.   In the instant case,  Kaspar did not  deny that on  the 
morning of September 11, 2002 its employees left the gate to  the 
fence gate  open.   As  a Commission  licensee,  Kaspar  is  held 
accountable for the actions of its employees,7 and is responsible 
for maintaining an  effectively enclosed  antenna structure.   We 
find  that  Kaspar   willfully  violated   the  antenna   fencing 
requirements of Section 73.49 of the Rules,8  by consciously  and 
deliberately leaving the  gate open on  the morning of  September 
11, 2002.  However, as discussed below, we agree with Kaspar that 
cancellation of the NAL is appropriate.9  

     5.   The record establishes that on the morning of September 
11, 2002, the gate, which Kaspar's practice was to lock, was open 
for a  very brief  period  of time  to facilitate  the  necessary 
equipment repairs  that allowed  Station  KWRE(AM) to  serve  its 
community  needs  by  continuing   its  coverage  of  the   local 
commemorative event.  Under the circumstances, we find the nature 
and   extent   of   Kaspar's   infraction   to   be    relatively 
insignificant,10   when   compared   to   other   Section   73.49 
violations.11 Additionally, we find that, as Kaspar asserted  and 
a search of agency decisions and notices confirmed, the  stations 
licensed to Kaspar and its commonly owned and controlled  company 
Kaspar Broadcasting Company, Inc., have an unblemished history of 
serving  their  broadcast  communities.    We  believe  that  the 
circumstances surrounding and the  nature and extent of  Kaspar's 
violation, together with its unblemished past history,  justifies 
cancellation of the NAL.

IV.  ORDERING CLAUSES

     6.   Accordingly, IT IS  ORDERED that,  pursuant to  Section 
504(b) of  the Act  and Section  1.80(f)(4) of  the Rules,12  the 
prior Notice of Apparent Liability for Forfeiture, NAL/Acct.  No. 
200332560001, IS CANCELLED.  





     7.   IT IS FURTHER ORDERED that  a copy of this Order  shall 
be  sent  by  First  Class  and  Certified  Mail  Return  Receipt 
Requested to Vern Kaspar,  President, Kaspar Broadcasting Co.  of 
Missouri, P.O. Box 545, Frankfort, Indiana 46041.  

                              FEDERAL COMMUNICATIONS COMMISSION
                         
                              David H. Solomon
                              Chief, Enforcement Bureau


_________________________

1 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200332560001 (Enf. Bur., Kansas City Office, released October 28, 
2002).  

2 47 C.F.R.  73.49.
3 See Letter from Vern Kaspar, President, Kaspar Broadcasting  of 
Missouri to the Federal Communications Commission, Office of  the 
Secretary (dated November 5, 2002) (``NAL Response'').
4 See NAL Response  at 1; see also  Exhibit 1 (the  corroborating 
statement   of   Mike   Thomas,   Station   KWRE(AM)'s    program 
coordinator).  
5 Id.  
6 Id. at 1.  
7 See Eure Family Limited Partnership, 17 FCC Rcd 21861, 21864-65 
 7-8 (2002); Sonderling Broadcasting Corp., 69 FCC 2d 289,  291 
 6 (1978); American Paging, Inc.,  12 FCC Rcd 10417, 10419   11 
(Enf. Bur. 1997); Dial-A-Page,  Inc., 10 FCC Rcd  8825, 8826   5 
(Enf. Bur. 1995).
8 See 47 U.S.C.   503(b)(1)(B) (providing  that that any  person 
found to have ``willfully'' or  repeatedly failed to comply  with 
any provision of the Act or  Commission Rule or Order ``shall  be 
liable to the United States for a forfeiture penalty''); see also 
47 U.S.C.  312(f); Southern  California Broadcasting Co., 6  FCC 
Rcd 4387, 4387-88,  5 (1991).  
9 See 47 U.S.C.  503(b)(2)(D); 47 C.F.R.  1.80(b)(4) (providing 
that the Commission may cancel or adjust proposed forfeitures  by 
taking into account the violation's nature, circumstances, extent 
and gravity;  the violator's  degree of  culpability, history  of 
prior offenses, ability to pay; and other matters as justice  may 
require).   
10 See Seawest Yacht  Brokers, 9 FCC Rcd  6099, 6099  8  (1994); 
WWC License LLC, 16  FCC Rcd 19490, 19492   9 (Enf. Bur.  2001); 
Califormula, Inc.,  16 FCC  Rcd 15087,  15087-88   4 (Enf.  Bur. 
2001); see also Anastos Media Group, Inc., 18 FCC Rcd 8573,  8574 
 8 (Enf. Bur. 2003).
11 See, e.g.,  Commonwealth License Subsidiary,  LLC, 18 FCC  Rcd 
20483, 20485   8   (Enf.  Bur. 2003);  Mitchell  Communications, 
Inc., 17 FCC Rcd 22391, 22393-94  9 (Enf. Bur. 2002)  
12 47 U.S.C.  504(b); 47 C.F.R.  1.80(f)(4).