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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Brahmin Broadcasting Corporation ) File Number: EB-07-DV-132
Licensee of Station KRAE-AM ) NAL/Acct. No.: 200732800006
Cheyenne, WY ) FRN: 0010593085
Facility ID # 35510 )
Adopted: February 27, 2008 Released: March 3, 2008
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 Brahmin
Broadcasting Corporation ("Brahmin"), licensee of station KRAE, in
Cheyenne, Wyoming, for repeated violation of Section 73.49 of the
Commission's Rules ("Rules"). On July 31, 2007, the Enforcement
Bureau's Denver Office issued a Notice of Apparent Liability for
Forfeiture ("NAL") in the amount of $7,000 to Brahmin for failing to
enclose the KRAE antenna tower within an effective locked fence or
other enclosure. Brahmin filed a response ("Response") on August 20,
2007. In this Order, we consider Brahmin's arguments that the
forfeiture amount should be reduced based on Brahmin's good faith
efforts to repair the fences surrounding the KRAE antenna tower, and
based on Brahmin's history of compliance with the Commission's Rules.
2. On March 6, 2007, agents from the Enforcement Bureau's Denver District
Office conducted an inspection of a structure located at approximately
41DEG 07' 26" north latitude and 104DEG 49' 12" west longitude in
Cheyenne, Wyoming. Close observation revealed that a single wooden
panel section of the base fence, approximately six feet in width, was
laying on the ground, and allowing access to the structure, a
series-fed antenna with an insulated base. The agents observed that
the structure resided in an open field located within a residential
area. A search of the Commission's database on-scene confirmed that
the structure was broadcasting the signal of KRAE, an AM station
licensed to Brahmin, in Cheyenne, Wyoming.
3. Later on March 6, 2007, the agents arrived at the KRAE studio and
issued a verbal warning regarding the base fence violation to the two
Brahmin employees present for the inspection. The agents interviewed
Brahmin's business manager and the chief engineer for KRAE. During the
interview, the engineer acknowledged that he had received a call on
February 20, 2007, regarding an issue with KRAE's base fence. The
engineer assumed that the caller, a former owner of the station, was
merely referring to a single vertical slat of the fence, which the
engineer recounts that he had repaired the week prior to the call,
when informing Brahmin of a "hole in the fence." The engineer admitted
on March 6, 2007, that he had yet to revisit the KRAE transmitter site
in order to assess the damage to the fence as of the date of the
agents' interview. The KRAE staff indicated to the agents that they
would immediately repair the fence. Brahmin confirms in the Response
to the NAL that the fence was repaired on March 6, 2007, and was
completely replaced in May of 2007.
4. On July 31, 2007, the Denver Office issued a NAL in the amount of
$7,000 to Brahmin, finding that Brahmin apparently repeatedly violated
Section 73.49 of the Rules by failing to enclose the KRAE antenna
tower within an effective locked fence or other enclosure. In its
Response, Brahmin requests a reduction of the proposed forfeiture
based on its good faith efforts to repair the fences surrounding the
KRAE antenna tower, and its history of compliance with the
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 Brahmin'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." KRAE
broadcasts from a series-fed tower with an insulated base which,
pursuant to Section 73.49, must be enclosed with an effective locked
fence or other enclosure. At the time of the March 6, 2007,
inspection, a six foot wide panel of the fence was found on the
ground, rendering the remaining fence ineffective. The structure is
sited in a residential portion of the city, however; there was no
perimeter fencing to further dissuade the public from approaching the
structure. Because there was no perimeter fence, the base fence around
the individual AM tower must be effective. With an entire panel
missing from the fence, the agents were able to easily access the KRAE
tower at the time of the inspection.
7. In its Response, Brahmin does not dispute that, at the time of the
March 6, 2007, inspection, a six foot wide panel of the KRAE tower
fence was found on the ground, rendering the remaining fence
ineffective. Instead Brahmin states that its engineer repaired the
fence on February 14, 2007, and believed that the repair took care of
the concerns in the message the station received on February 20, 2007.
Brahmin states that when it was alerted to another problem with fence
on March 6, 2007, by the Denver agents, its engineer immediately fixed
the fence that day. Reductions based on good faith efforts to comply
generally involve situations where violators demonstrated that they
initiated measures to correct or remedy violations, or that they had
established compliance programs in place, prior to the Commission's
involvement. While Brahmin's effort to repair the fence after the
March 6, 2007, inspection by the Denver agents does not support a good
faith reduction, we find that Brahmin's effort to repair the fence
prior to the inspection does support a good faith reduction.
Consequently, we reduce the forfeiture from $7,000 to $5,600.
8. Brahmin 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 Brahmin's forfeiture amount
from $5,600 to $4,200. 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
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, Brahmin Broadcasting
Corporation, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$4,200 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
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 Brahmin
Broadcasting Corporation, at its address of record, and its counsel of
record, Barry A. Friedman, Esquire.
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. 200732800004
(Enf. Bur., Western Region, Denver Office, released July 31, 2007).
NAL at 1; Response Affidavit at 1.
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, P:6 (1986)
("Report and Order").
See Butterfield Broadcasting Corporation, 20 FCC Rcd 20237 (EB 2005).
See Radio One Licenses, Inc.,17 FCC Rcd 20408 (EB 2002), recon. denied, 18
FCC Rcd 15964 (2003).
See Tidewater Communications, Inc., 18 FCC Rcd 5524, 5525 (EB 2003).
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).
Federal Communications Commission DA 08-473
Federal Communications Commission DA 08-473