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

                                 )
In the Matter of                 )          File No.: EB-04-ST-263
                                 )
Butterfield Broadcasting         )     NAL/Acct. No.: 200532980003
Corporation                      )                 FRN: 0004281150
                                 )
Former Licensee of AM Station    )
KULE                             )
Ephrata, Washington
Facility ID #4041


                        FORFEITURE ORDER

Adopted: December 21, 2005                              Released: 
December 23, 2005 

By the Regional Director, Western Region, 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 Butterfield Broadcasting Corporation ("Butterfield"), 
former licensee of AM station KULE,1 in Ephrata, Washington, for 
willful and repeated violation of Section 73.49 of the 
Commission's Rules ("Rules").2  On December 14, 2004, the 
Enforcement Bureau's Seattle Office issued a Notice of Apparent 
Liability for Forfeiture (``NAL'') in the amount of $7,000 to 
Butterfield after determining that it had failed to effectively 
enclose its AM broadcast tower.  In this Order, we consider and 
reject Butterfield's arguments that the facts in the NAL are 
incorrect; that the fence was effective; that the NAL overstates 
the size of the gap in the fence; and that Butterfield has an 
overall history of compliance. 

II.  BACKGROUND

     2.   On July 12, 2004, an agent from the Seattle Office 
conducted an inspection of the AM antenna tower used at 
Butterfield's station KULE. According to its license, the KULE 
antenna tower is series fed and, therefore, required to be 
fenced. Upon inspection of the antenna tower, the field agent 
found that the gate at the perimeter of the antenna site was 
broken and open.  The agent then inspected the KULE antenna tower 
base fence.  The agent found that, on the north and west sides of 
the base fence, the fence and fence frame extended almost to the 
ground.  On the east and south sides of the fence, however, the 
ground sloped downward.  The fence did not compensate for the 
slope of the ground, creating a 12 to 18 inch gap between the 
ground and the start of the fence.  This gap, which ran along the 
entire length of the 20 foot east side and the 10 foot south 
side, was large enough to allow access to the interior of the 
fence and the base of the tower.  

     3.   The next day, on July 13, 2005, the Seattle agent 
contacted KULE and conducted an inspection of the station and the 
tower site, accompanied by the KULE station manager.  The agent 
informed the KULE station manager that the perimeter gate was 
broken and that the antenna tower base fence did not effectively 
enclose the base of the antenna tower.  The KULE station manager 
stated that he would fix the base fence.

     4.   On August 9, 2004, an agent from the Seattle Field 
Office again conducted an inspection of the KULE antenna tower.  
The field agent found that the antenna tower base fence was not 
repaired to effectively enclose the antenna tower.

     5.        On December 14, 2004, the Seattle Office issued a 
NAL in the amount of $7,000 to Butterfield.3  In the NAL, the 
Seattle Office found that Butterfield apparently willfully and 
repeatedly failed to effectively enclose the KULE AM broadcast 
tower.  Butterfield filed a response to the NAL on January 14, 
2005 (``Response'').  In its Response, Butterfield states that 
the description in the NAL was not entirely accurate; that the 
fence surrounding the KULE(AM) tower was effective; that the size 
of the gap in the fence is overstated in the NAL; and that, given 
Butterfield's recent compliance history with KULE(AM), a $7,000 
forfeiture is not warranted.

III.  DISCUSSION

     6.        The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Act,4 Section 
1.80 of the Rules,5 and The Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines.6  In examining 
Butterfield'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 other such matters as justice may 
require.7

     7.    Section 73.49 of the Rules states that antenna towers 
having radio frequency potential at the base (series fed, folded 
unipole, and insulated base antennas) must be enclosed within 
effective locked fences or other enclosures.  Individual tower 
fences need not be installed if the towers are contained within a 
protective property fence.8  The KULE AM antenna tower is series 
fed. 

     8.   We first address Butterfield's allegation that the 
facts recited in the NAL ``are not entirely accurate.''  
Butterfield states that there are two fences, a perimeter fence, 
covering at least nine square miles and containing the tower 
sites and antennas for at least five radio stations, two cellular 
companies, numerous translator stations, wireless internet 
providers, and communications facilities for the county's 911 
operation.  The other fence, Butterfield explains, is the antenna 
base fence, which exclusively surrounds the KULE AM antenna 
tower.  Butterfield acknowledges that the perimeter fence, a 
three-strand barbed wire fence with at least one broken gate, did 
not meet the requirements of Section 73.49.   Butterfield 
asserts, however, that the antenna base fence did meet the 
requirements of Section 73.49. 

     9.   Butterfield asserts that Butterfield personnel accessed 
the KULE site via a different, unbroken, gate in the perimeter 
fence and did not use the broken perimeter fence gate.  
Therefore, Butterfield argues, given the apparent multiple users 
of the site and the gates, it should be relieved of any liability 
for the maintenance of the broken perimeter fence gate.  We agree 
with Butterfield that there were two fences at the site: a 
perimeter fence and a base fence around the AM tower.  We note, 
however, that the Seattle Office's determination of Butterfield's 
apparent liability under Section 73.49, was not because of the 
ineffective perimeter fence, but because of the ineffective AM 
tower fence which was found at the KULE AM tower.  As stated in 
Section 73.49, ``individual tower fences need not be installed if 
the towers are contained within a protective property fence.''9  
Because the perimeter fence was not effective, the base fence 
around the AM tower must be effective. 

     10.  Butterfield next argues that the KULE AM tower fence 
was effective and describes it as being six to six and one-half 
feet tall consisting of two by three inch open-mesh screening 
with posted radiation hazard warnings.  Butterfield states that 
to breach the fence, an individual would have to try to crawl 
under or climb over the fence and that the Commission has never 
interpreted the phrase ``effective fence'' to mean ``impenetrable 
by a determined trespasser.''  In adopting the Report and Order 
promulgating the most recent amendment of Section 73.49, the 
Commission stated that ``a fencing requirement is necessary to 
protect the general public.''10  In that Report and Order, the 
Commission does not discuss the Section 73.49 fencing requirement 
in terms of trespassers, nor has Butterfield directed us to any 
Commission decision concerning Section 73.49 that requires 
different protection for trespassers than for the general 
public.11  Section 73.49 requires that the fence must be 
effective.  The Enforcement Bureau has repeatedly found fencing 
that allows access to the antenna to be ineffective. 12

     11.  Butterfield also argues that the fence was effective 
because the gap was only 11 inches, and not the 12 to 18 inches 
noted by the Seattle agent.13  Butterfield states that given the 
size of the gap, and the warning signs ``[n]o one, adult or 
child, could have any question that they should not go inside the 
fence, and to get inside they would have to go to extraordinary 
means.''  As noted in the NAL, the agent found that the range of 
the gap increased in places as the fence did not compensate for 
the slope of the property, and that the gap was large enough to 
allow access to the AM tower.  During the inspection on July 12, 
2004, the Seattle agent easily slid under the fence and noted 
that one part of the gap was 11 to 12 inches increasing to 18 
inches as the property sloped downward.  We therefore find that 
the fence was not effective.  

     12.  Finally, Butterfield argues that the $7,000 forfeiture 
should be reduced as Butterfield has had only one prior violation 
during the time it held the KULE license.  Specifically, 
Butterfield was assessed a $2,000 forfeiture for willful and 
repeated violation of Section 73.3526(e)(1).14  Because 
Butterfield was previously the subject of an enforcement action, 
we find Butterfield does not have an overall history of 
compliance and that reduction of the assessed forfeiture amount 
is not warranted.15

     13.       We have examined Butterfield's response to the NAL 
pursuant to the statutory factors above, and in conjunction with 
the Forfeiture Policy Statement.  As a result of our review, we 
conclude that Butterfield willfully and repeated violated Section 
73.49.  Considering the entire record and the factors listed 
above, we find that neither reduction or cancellation of the 
proposed $7,000 forfeiture is warranted

IV.  ORDERING CLAUSES

     14.       ACCORDINGLY, IT IS ORDERED that, pursuant to 
Section 503(b) of the Communications Act of 1934, as amended 
(``Act''), and Sections 0.111, 0.311 and 1.80(f)(4) of the 
Commission's Rules, Butterfield Broadcasting Corporation IS 
LIABLE FOR A MONETARY FORFEITURE in the amount of $7,000 for 
willfully and repeatedly violating Section 73.49 of the Rules.16

     15.       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.17  Payment of the forfeiture must be made by check or 
similar instrument, payable to the order of the Federal 
Communications Commission. The payment must include the 
NAL/Acct. No. and FRN No. referenced above. Payment bycheck or 
money order may be mailed to Federal Communications Commission, 
P.O. Box358340,Pittsburgh, PA 15251-8340. Payment by overnight 
mail may be sent toMellon Bank/LB358340,500 Ross Street, Room 
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be 
made to ABA Number043000261, receiving bankMellon Bank, and 
account number911- 6106.  Requests for full payment under an 
installment plan should be sent to: Associate Managing Director - 
Financial Operations, Room 1A625, 445 12th Street, S.W., 
Washington, D.C. 20554.18

     16.       IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class Mail and Certified Mail Return 
Receipt Requested to Butterfield Broadcasting Corporation, 706 
Butterfield Road, Yakima, Washington, 98901; and to Anne Paxson, 
Esquire, Borsari and Paxson, Suite 100, 4000 Albemarle Street, 
N.W., Washington, D.C. 20016.  



                              FEDERAL COMMUNICATIONS COMMISSION




                              Rebecca L. Dorch
                              Regional Director, Western Region
                              Enforcement Bureau
_________________________

1On November 18, 2004, the Commission assigned the KULE(AM) 
license from Butterfield to Bustos Media of Washington, LLC.  See 
Application No. BAL-20040827AAU. The transaction was consummated 
on January 21, 2005. 

247 C.F.R.  73.49.

3Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200532980003 (Enf. Bur., Western Region, Seattle Office, released 
December 14, 2004).  

447 U.S.C.  503(b).

547 C.F.R.  1.80.

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

747 U.S.C.  503(b)(2)(D).

847 C.F.R.  73.49. 

947 C.F.R.  73.49. 

10Review of the Technical an Operational Regulations of Part 73, 
Subpart A, AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & 
Fischer) 927, 6 (1986) (``Report and Order''). 

11We note that this is consistent with guidance given by the 
Commission's Office of Engineering and Technology (``OET'') 
concerning compliance with the Commission's radiofrequency 
(``RF'') radiation rules.  In OET Bulletin 65: ``Evaluating 
Compliance with FCC Guidelines for Human Exposure to 
Radiofrequency Electromagnetic Fields,'' OET recommends that 
applicants for broadcast stations take into account, when 
determining their compliance with the Commission's RF rules, 
whether ``[h]igh RF levels are produced at ground level in an 
area which could reasonably be expected to be used by the public 
(including trespassers).''  OET Bulletin 65 at 84.

12See, e.g., M.B. Communications, Inc., 20 FCC Rcd 9536 (EB 2005) 
(existence of an 18 inch gap below an AM tower fence contributed 
to unimpeded access to the AM tower). 

13In an affidavit, the KULE station manager asserts that the gap 
was 11 inches when he prepared to repair the gap in the fence, 
after the July 13, 2004 inspection by the Seattle agent.   The 
station manager also asserts that the inspector did not convey 
any sense of urgency, and that the station personnel assumed that 
by fixing the fence within 30 days, it was complying with the 
inspector's wishes.  Butterfield was on notice that the KULE AM 
tower fence was not in compliance with Section 73.49 as of the 
July 13, 2004 inspection.  When the Seattle agent returned on 
August 9, 2004, 27 days later, the gap remained thus belying 
Butterfield's claim that it ``promptly took steps to extend the 
fence to the ground.''  Butterfield finally repaired the fence on 
August 14, 2004.

14Butterfield Broadcasting Corporation, 19 FCC Rcd 19473 (EB 
2004). 

15See, e.g., Petracom of Texarkana, 19 FCC Rcd 8096 (EB 2004). 

1647 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 1.80(f)(4), 
73.49.

1747 U.S.C.  504(a).

18See 47 C.F.R.  1.1914.