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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 )
Facility ID #4041
Adopted: December 21, 2005 Released:
December 23, 2005
By the Regional Director, Western Region, Enforcement Bureau:
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.
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.
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
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
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 by check or
money order may be mailed to Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911- 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
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
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),
1747 U.S.C. § 504(a).
18See 47 C.F.R. § 1.1914.