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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
The Evans Broadcast Company, Inc. ) File Number: EB-08-SF-0284
Licensee of Station KCMY(AM) ) NAL/Acct. No.: 200932960002
Carson City, Nevada ) FRN: 0011889250
Facility ID # 40801 )
Adopted: November 18, 2009 Released: November 20, 2009
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of three thousand, five hundred dollars ($3,500) to The
Evans Broadcast Company, Inc. ("Evans"), licensee of station KCMY(AM),
in Carson City, Nevada, for willful and repeated violation of Section
73.49 of the Commission's Rules ("Rules"). On November 25, 2008, the
Enforcement Bureau's San Francisco Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $5,600 to Evans for
failing to enclose the KCMY(AM) antenna towers within an effective
locked fence or other enclosure. Evans filed a response ("Response")
on December 24, 2008. In this Order, we consider Evan's arguments that
it made good faith efforts to comply with the Rules, and that it has a
history of compliance with the Rules.
2. On June 10, 2008, an agent from the Enforcement Bureau's San Francisco
Office inspected KCMY(AM)'s antenna tower site in Carson City, Nevada,
and found that large portions of the wooden base fences surrounding
each of the two KCMY(AM) antenna towers making up the KCMY(AM)
two-tower array were laying on the ground. For one tower, half of the
entire fence was laying on the ground. For the other tower, large
portions, approximately eight to ten feet wide, were laying on the
ground. The agent observed that there was no protective property fence
surrounding the KCMY(AM) antenna site. The agent also observed that
there was a bike path approximately 100 yards from the antenna site.
3. On June 11, 2008, the San Francisco agent returned to the KCMY antenna
site and again found that large segments of the base fences
surrounding each of the two KCMY(AM) antenna towers were laying on the
ground. The agent also observed that there was no protective property
fence surrounding the KCMY(AM) antenna site. The agent then conducted
an inspection of the KCMY(AM) main studio and interviewed KCMY(AM)
management about the KCMY(AM) fences. The KCMY(AM) manager
acknowledged that the fences had blown down two or three times in the
past, most recently six or seven weeks earlier. The manager told the
agent that the station had attempted to get the fences repaired, and
produced a proposal for repairs, but said that the company proposing
to do the work was waiting for the ground to dry so that their
vehicles did not get stuck in the mud. The agent noted that there was
no set date on the proposal for the repair of the fences. The agent
warned the KCMY(AM) manager that some type of temporary fencing
enclosure had to be erected with warning signs to keep the public from
approaching the KCMY(AM) towers. Later that day, the San Francisco
agent returned to the KCMY(AM) tower site and observed that orange,
plastic temporary fencing had been installed around the two KCMY(AM)
tower fences, along with warning signs.
4. On November 25, 2008, the San Francisco Office issued a NAL in the
amount of $5,600 to Evans, finding that Evans apparently willfully and
repeatedly violated Section 73.49 of the Rules by failing to enclose
the KCMY(AM) antenna towers within an effective locked fence or other
enclosure, but that Evans had demonstrated a good faith effort to
attempt to initiate repairs to the fence prior to the inspection by
the FCC agent. In its Response, Evans argues that it made good faith
efforts to comply with the Rules, that it promptly erected the
temporary fence urged by the agent, that the stations gross revenues
are marginal, and that it has a history of compliance with the 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 Evan'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. The KCMY(AM) antenna towers are series
fed. 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." On June 10,
2008, and June 11, 2008, a San Francisco agent inspected the KCMY(AM)
antenna tower site and found that, for both towers, the base fences
surrounding those towers were missing large portions of the fences,
and that there was no protective property fence at the site beyond the
base fence. When asked by the San Francisco agent, a KCMY(AM) manger
acknowledged that the fences had been blown down several weeks
earlier, and that efforts had been made to contract with a company to
repair them, but no repairs had been made because of the muddy ground
near the fences.
7. In its Response, Evans does not dispute that, at the time of the June
10 and June 11, 2008, inspections, the KCMY(AM) towers were not
enclosed within an effective fence or enclosure. Evans argues that the
fence had blown down earlier in the year and that it had acted
responsibly when on April 8, 2008, prior to the agent's inspection, it
ordered repairs to be made. The repairs had not yet been made, at the
time of the inspection, because the ground surrounding the fence was
too wet to allow vehicle access. Evans also argues that at the agents'
urging on June 11, 2008, it promptly erected temporary fencing around
the two towers and posted warning signs. Consequently, Evans argues
that the proposed forfeiture should be cancelled because of its good
faith efforts to comply with the Rules, and its history of compliance
8. We note that the San Francisco Office, in consideration of Evans'
pre-inspection efforts, proposed a reduced forfeiture in the NAL. In
view of the inability of the station to effect the repairs (including
setting cement for fence posts) for which it had contracted prior to
the agents' inspection due to the wet ground, a factor outside Evans'
control, we will apply an additional good faith reduction to the
forfeiture. We decline, however, to cancel the forfeiture. The
erection of temporary fencing at the urging of the FCC agent does not
warrant any further reduction. While Evans asserts its gross revenues
are marginal, it did not proffer any of the evidence required for
consideration of an inability of pay argument. We have also reviewed
our records and we have determined that Evans does have a history of
compliance with the Rules. We therefore will reduce the forfeiture
amount to $3,500.
9. We have examined the 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 Evans willfully
and repeatedly violated Section 73.49 of the Rules. Considering the
entire record and the factors listed above, we find that reduction of
the proposed forfeiture to $3,500 is warranted.
IV. ORDERING CLAUSES
10. 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, The Evans Broadcast
Company, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$3,500 for willfully and repeatedly violating Section 73.49 of the
11. 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.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to The Evans
Broadcast Company, Inc., at its address of record, and its counsel of
record, Aaron P. Shainis, 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. 200932960002
(Enf. Bur., Western Region, San Francisco Office, released November 25,
47 C.F.R. S: 73.49.
Pursuant to Section 1.80 of the Rules, 47 C.F.R. S: 1.80, the base
forfeiture amount for violating the AM tower fencing rule is $7,000. The
San Francisco Office reduced the base forfeiture amount, pursuant to the
downward adjustment criteria in Section 1.80, based on its assessment that
Evans had engaged in good faith efforts prior to the agent's inspection.
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.
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").
We note that addressing violations of the Rules post-inspection does not
provide a basis for a downward adjustment in the proposed forfeiture. The
Commission has stated in the past 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 also
Rama Communications, Inc., 23 FCC Rcd 18209, 18211 (EB 2008) ("[W]here
lapses in compliance occur, neither the negligent acts nor omissions of
station employees or agents, nor the subsequent remedial actions
undertaken by the licensee, excuse or nullify the licensee's rule
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 09-2442
Federal Communications Commission DA 09-2442