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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Pereira Broadcasting ) File Number: EB-06-SF-273
Licensee of Station KIGS ) NAL/Acct. No.: 200732960004
Hanford, CA ) FRN: 0000021709
Facility ID # 51122 )
Adopted: September 7, 2007 Released: September 11, 2007
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of two thousand, eight hundred dollars ($2,800) to Pereira
Broadcasting ("Pereira"), licensee of AM radio station KIGS in
Hanford, California, for repeatedly violating Section 73.49 of the
Commission's Rules ("Rules"). On March 2, 2007, the Enforcement
Bureau's San Francisco Office issued a Notice of Apparent Liability
for Forfeiture ("NAL") in the amount of $7,000 to Pereira for failing
to enclose the KIGS antenna towers within effective locked fences or
other enclosures. In this Order, we consider Pereira's argument that
the fence was removed to eliminate an overgrowth of weeds underneath
each of the towers, as well as Pereira's request that we reduce the
forfeiture amount based on its inability to pay the amount proposed by
the San Francisco Office.
2. On August 29, 2006, an agent from Enforcement Bureau's San Francisco
Office inspected the antenna towers used by Pereira to broadcast KIGS.
KIGS utilizes two antenna towers to broadcast its signal: antenna
structure # 1016446, and antenna structure # 1016447. According to its
license, the KIGS antenna towers are series fed and, therefore, are
required to be fenced. Upon inspection of the antenna towers, the
agent found no effective locked fences or other barriers surrounding
the base of antenna structure # 1016446, or the base of antenna
structure # 1016447. The agent observed that the chain-link fence was
missing around each tower, with only the support posts remaining in
place. The agent also observed that there was no perimeter fence
surrounding the KIGS antenna site and that the KIGS antenna site is
adjacent to a residence. During the inspection that day, the San
Francisco agent discussed the missing fencing for the two KIGS towers
with the general manager of KIGS and learned that the chain link fence
surrounding the towers had been removed to cut down grass and weeds.
The general manager indicated that the fencing was removed about two
weeks prior to the date of the San Francisco agent's inspection.
3. On March 2, 2007, the San Francisco Office issued a NAL in the amount
of $7,000 to Pereira, finding that Pereira apparently repeatedly
violated Section 73.49 of the Rules by failing to enclose the KIGS
antenna towers within effective locked fences or other enclosures.
Pereira filed a response ("Response") on March 26, 2007, arguing that
the fences had been removed from the towers to eliminate the
overgrowth of weeds underneath the towers. Pereira also requested that
the forfeiture amount be reduced based on their inability to pay.
4. 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 Pereira'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
5. 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 29, 2006, the chain link fence around the
KIGS towers had been removed, and there was no perimeter fence around
the property. Because there was no perimeter fence, the base fences
around the individual AM towers must be effective. The KIGS antenna
towers are series fed and, pursuant to Section 73.49, each of the two
KIGS towers must be enclosed within an effective locked fence or other
enclosure. The two towers, antenna structure # 1016446 and antenna
structure # 1016447, both had the chain-link fence missing, with only
support posts remaining in place, making both towers easily accessible
to the general public.
6. In its Response, Pereira admits that the chain link of the fences
surrounding antenna structures 1016446 and 1016447 had been removed at
the time of the inspection by the San Francisco agent. Pereira states
that in order "to eliminate a fire hazard of over growth of weeds
underneath each of the towers as required by the County Fire
Inspection," Pereira decided to use an herbicide that would not allow
any growth for a period of five years. Pereira states that it was
necessary to remove the chain link to spread the herbicide. Pereira
also states that it intended for this process to take one week however
it did not complete the task within that time period. Pereira further
states that the chain link was replaced two days after the inspection
by the San Francisco agent. Pereira also states that the residence
referred to in the NAL, is one thousand feet away from the nearest
antenna structure and a roadway and an irrigation canal that is twenty
feet wide and seven feet deep separates the properties. Additionally,
Pereira states that the entrance dirt road to the KIGS property is
gated locked and monitored.
7. Pereira had a six foot tall chain link fence surrounding the tower,
but had removed the fence and warning signs for grounds maintenance
purposes. Pereira does not dispute that the AM tower base fences were
down for two weeks. We do not dispute Pereira's description of the
residence and the irrigation canal, but we note that no perimeter
fence encloses the property and, according to the San Francisco agent,
the front driveway of the station is paved, has no gates, and that at
the time of the inspection, an individual could walk from the street
to the driveway and to the antenna structures without encountering a
fence, enclosure, or irrigation canal. We accept Pereira's
representation that the removal of the protective base fence was
temporary and required to comply with local requirements. These local
requirements do not, however, relieve Pereira's obligation to ensure
that there is some type of effective fence or enclosure around the
KIGS antenna structures at all times. Because this condition lasted
for two weeks, we find that Pereira repeatedly failed to enclose the
KIGS antenna towers within effective locked fences or other
enclosures. We will, however, consider as an extenuating circumstance
the effort by Pereira to comply with both local and federal
requirements, and will utilize our discretion under Section
503(b)(2)(E) of the Act to reduce the proposed forfeiture from $7,000
8. Pereira also requests that the forfeiture amount be reduced based on
its inability to pay. To support their request, they supply three
years of income tax data. In analyzing a financial hardship claim, the
Commission generally has looked to gross revenues as a reasonable and
appropriate yardstick in determining whether a licensee is able to pay
the assessed forfeiture. While we find that Pereira repeatedly
violated Section 73.49 of the Rules, based upon its inability to pay,
we conclude that pursuant to Section 503(b) of the Act and the
Forfeiture Policy Statement, further reduction of the forfeiture to
$2,800 is warranted.
IV. ORDERING CLAUSES
9. 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, Pereira Broadcasting,
IS LIABLE FOR A MONETARY FORFEITURE in the amount of $2,800 for
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. 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.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Pereira
Broadcasting at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 C.F.R. S: 73.49.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732960004
(Enf. Bur., Western Region, San Francisco Office, released March 2, 2007).
We note that in the NAL, the licensee's name was listed as Perreira
The agent also observed that the antenna structure registration numbers
for the two AM towers, as well as any high voltage or radiofrequency
radiation warning signs, had also been removed with the fencing.
47 C.F.R. S: 73.49.
Within the NAL, the San Francisco Office also issued a Notice of Violation
("NOV") to Pereira for violation of Section 73.1350(a) of the Rules which
states that each licensee is responsible for maintaining and operating its
broadcast station in a manner which complies with the technical rules and
in accordance with the terms of the station license., 47 C.F.R. S:
73.1350(a). Specifically, Section 73.1745(a) of the Rules states that no
broadcast station shall operate at times or with modes or power, other
than those specified and made part of the license. At the time of the
inspection on August 29, 2006, the San Francisco agent found that KIGS did
not change to nighttime pattern at 7:45 p.m. as required by the station
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 and Operational Regulations of Part 73, Subpart A,
AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, P:6 (1986)
("Report and Order").
See Butterfield Broadcasting Corporation, 20 FCC Rcd 20237 (EB 2005).
Although the chain link was restored to the fences within two days after
the San Francisco agent's inspection, we find that this action cannot be a
basis to reduce the forfeiture amount. The Commission has consistently
held that 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. AT&T Wireless Services, Inc. 17 FCC
Rcd 21866, 21871-76 (2002).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 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 07-3870
Federal Communications Commission DA 07-3870