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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Sandhill Media Group, LLC File Nos.: EB-06-PO-095
Licensee of AM Station KSPZ EB-06-PO-096
(Formerly KUPI) NAL/Acct. No.: 200632920004
Ammon, Idaho FRN: 0009807074
Facility ID No. 55238
Adopted: May 22, 2007 Released: May 24, 2007
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of four thousand, two hundred dollars ($4,200) to Sandhill
Media Group, LLC ("Sandhill"), licensee of radio station KSPZ
(formerly KUPI) in Ammon, Idaho, for repeatedly violating Section
73.49 of the Commission's Rules ("Rules"). On September 27, 2006, the
Enforcement Bureau's Portland Resident Agent Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $7,000 to
Sandhill for failing to enclose the KSPZ antenna towers within
effective locked fences or other enclosures. In this Order, we
consider Sandhill's arguments that the violation was not willful or
repeated, and that the forfeiture amount should be reduced based on
Sandhill's good faith efforts to repair the fences surrounding the
KSPZ antenna towers, and based on Sandhill's history of compliance
with the Commission's Rules.
2. On August 3, 2006, an agent from the Portland Resident Agent Office
inspected antenna towers used by Sandhill to broadcast AM station
KSPZ. KSPZ is a directional AM station, which uses three antenna
towers to broadcast its signal: antenna structure #1042078, antenna
structure #1042029, and antenna structure #1042030. According to its
license, the KSPZ antenna towers are series fed and, therefore,
required to be fenced. Upon inspection of the antenna towers, the
agent found that there were no effective locked fences or other
barriers surrounding the base of antenna structure #1042078, or the
base of antenna structure #1042029. At antenna structure #1042078,
such large sections of the fence were missing that the tower was
easily accessible on two sides. At antenna structure #1042029, fencing
existed on only one side of the tower, making the tower easily
accessible on three sides. The agent observed that large sections of
the existing fences surrounding the two towers were missing, while
others were lying on the ground. The agent also noted that there was a
perimeter fence made up of four strands of barbed wire surrounding the
entire KSPZ antenna site, but that the main gate of that fence was
unlocked and wide open. The KSPZ antenna site is adjacent to an auto
wrecking yard and an industrial manufacturer of concrete sewer pipes
and blocks. Later that day, the Portland agent contacted the KSPZ
chief engineer about the condition of the fencing surrounding two of
the three KSPZ towers.
3. On September 8, 2006, the Portland agent contacted the KSPZ chief
engineer to inquire about the condition of the fencing surrounding the
two KSPZ towers. On September 18, 2006, the KSPZ chief engineer
responded via email to the Portland agent that all repairs to the
fences were made on August 10, 2006. The chief engineer attached
photographs of the fences to the email, to show the repairs that were
made, and to show that a lock had been installed at the main gate of
the perimeter fence.
4. On September 27, 2006, the Portland Office issued a NAL in the amount
of $7,000 to Sandhill, finding that Sandhill apparently repeatedly
violated Section 73.49 of the Rules by failing to enclose the KSPZ
antenna towers within an effective locked fence or other enclosures.
Sandhill filed a response ("Response") on October 27, 2006, arguing
that the violation was neither willful nor repeated, and requesting a
reduction of the proposed forfeiture based on its good faith efforts
to repair the fences surrounding the KSPZ antenna towers, and its
history of compliance with the Commission's Rules.
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"). In examining Sandhill'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
6. 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. 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." At the time
of the inspection on August 3, 2006, a perimeter fence existed around
the KSPZ towers, but the gate to the perimeter fence was unlocked and
open, therefore, the perimeter fence did not qualify as a protective
property fence. Because the perimeter fence was not effective, the
base fences around the individual AM towers must be effective.
7. The KSPZ antenna towers are series fed and, pursuant to Section 73.49,
each of the three KSPZ towers must be enclosed within an effective
locked fence or other enclosure. Only one of the three towers,
however, was properly enclosed. The other two towers, antenna
structure #1042078 and antenna structure #1042029, each had sections
of their fences missing, making both towers easily accessible to the
8. In its Response, Sandhill does not dispute that the two towers lacked
individual effective fences at the time of the Portland agent's
inspection. Sandhill states that it had been in the process of
replacing the individual fences around both of the two subject antenna
towers in April and May of 2006 and that a carpenter was scheduled to
complete the reinstallation of the fences for the two antenna towers
beginning August 7, 2006. At that time, Sandhill believed that the
antenna towers were secured by a perimeter fence with locked gates.
Sandhill states that sometime after the KSPZ chief engineer's last
visit to the antenna tower in "mid to late July" and before the
Portland agent's inspection, thieves removed the chain and padlock
from a gate attached to the perimeter fence and "used the transmitter
site to enter an adjacent car wrecking lot in order to steal car
parts." Sandhill states that after the KSPZ chief engineer was
informed of the violation by the Portland agent on August 3, 2006, the
KSPZ chief engineer immediately purchased a new chain and padlock to
secure the perimeter fence. Citing Vernon Broadcasting, in which the
Commission cancelled a $1,000 forfeiture against a licensee for
willfully violating the predecessor rule to Section 73.49, concerning
adequate fencing around an antenna tower, because the fence had been
vandalized by a third party, Sandhill argues that in the present case,
because the failure to secure the perimeter fence was caused by a
third party, we cannot find that Sandhill willfully failed to enclose
the KSPZ antenna towers within effective locked fences or within a
protective property fence. We note that in the NAL, the Portland
Office found that Sandhill apparently repeatedly violated Section
73.49 of the Rules. The Portland Office did not find that Sandhill
apparently willfully violated Section 73.49 of the Rules. Therefore,
we find no merit to this argument.
9. Sandhill also argues that the violation "cannot be deemed `repeated'
simply because it affected two towers at the site." Sandhill appears
to argue that a violation may only be deemed repeated if it occurs for
more than one day. We disagree. According to Section 312(f)(2) of the
Act "'repeated,' when used with reference to the commission or
omission of any act, means the commission or omission of such act more
than once or, if such commission or omission is continuous, for more
than one day." As detailed by the Portland Office, and as acknowledged
by Sandhill, the perimeter fence was not an effective or protective
property fence when it was inspected by the Portland agent on August
3, 2006. The Portland agent then inspected the individual fences
around the two subject antenna towers and, as Sandhill acknowledges,
neither of these two structures were enclosed in an effective fence.
Because the perimeter fence failed, each individual fence had to be
effective. Neither were, resulting in Sandhill's failure to
effectively enclose each of the two antenna towers, i.e., violating
Section 73.49 more than once. Consequently, we find that Sandhill's
violation of Section 73.49 was repeated.
10. Sandhill also requests that the forfeiture amount be reduced based on
its good faith efforts to repair the individual fences surrounding the
two antenna towers. We agree and reduce the forfeiture from $7,000 to
$5,600. Sandhill also requests that a reduction be given for its
history of compliance with the Commission's Rules. We have reviewed
our records and we concur. Consequently, we reduce Sandhill's
forfeiture amount from $5,600 to $4,200.
11. Based on the information before us, having examined it according to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement, we find that reduction of the proposed forfeiture to
$4,200 is warranted.
IV. ORDERING CLAUSES
12. 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, Sandhill Media Group,
LLC, IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,200 for
repeatedly violating Section 73.49 of the Rules.
13. 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. 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.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Sandhill
Media Group, LLC, at its address of record, and its counsel of record,
David D. Oxenford, Esquire and Brendan Holland, Esquire.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
According to Commission records, the station's call sign was changed to
KSPZ on March 19, 2007.
47 C.F.R. S 73.49.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632920004
(Enf. Bur., Western Region, Portland Resident Agent Office, released
September 27, 2006).
The base fence around antenna structure #1042030 was effective.
47 C.F.R. S 73.49.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(E).
47 C.F.R. S 73.49.
47 C.F.R. S 73.49.
Review of the Technical an Operational Regulations of Part 73, Subpart A,
AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, P6 (1986)
("Report and Order").
See Metropolitan Radio Group, 19 FCC Rcd 11846 (EB 2004).
See Butterfield Broadcasting Corporation, 20 FCC Rcd 20237 (EB 2005).
We note that when the chief engineer was asked by the Portland agent on
September 8, 2006, about the status of the fences, the chief engineer
replied, on September 18, 2006, that "[a]ll repairs were made the Thursday
after you called me, I believe that was 8-10-06. All fences are now fully
restored and have locks on their gates." In any event, a licensee is
expected to correct errors when they are brought to the licensee's
attention and that such correction is not grounds for a downward
adjustment in the forfeiture. See, e.g., AT&T Wireless Services, Inc. 17
FCC Rcd 21866, 21871-76 (2002).
60 Rad. Reg. 2d (Pike and Fischer) 1275 (1986).
47 U.S.C. S 312(f)(2).
See American General Media Corporation, DA 99-1932, 1999 WL 740434, rel.
September 22, 1999.
Additionally, according to Sandhill's Response, had the Portland agent not
informed the KSPZ chief engineer about the violation of Section 73.49 on
August 3, 2006, no station personnel would have discovered the violation
until at least August 7, 2006.
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 73.49.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-2137
Federal Communications Commission DA 07-2137