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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Spirit of Alaska Broadcasting, Inc.
) File Number: EB-08-AN-0111
Permittee of Broadcast Station
KMBQ(AM) ) NAL/Acct. No.: 200932780001
Wasilla, Alaska ) FRN: 0004973970
Facility ID No.161023 )
Adopted: July 25, 2011 Released: July 27, 2011
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Order, which follows upon a Notice of Apparent Liability for
Forfeiture ("NAL") issued by the Enforcement Bureau's Anchorage Office
on April 30, 2009, we determine that no forfeiture penalties should be
imposed on Spirit of Alaska Broadcasting, Inc. ("Spirit").
2. In the NAL, we found Spirit, permittee of AM broadcast Station
KMBQ(AM), in Wasilla, Alaska, apparently liable for a forfeiture of
$7,000 for violation of section 73.49 of the Commission's rules
("Rules") for failing to maintain an effective fence or enclosure
around the Station KMBQ(AM) antenna structure. Consistent with section
503(b)(4) of the Communications Act of 1934, as amended, Spirit was
granted an opportunity to show, in writing, why no such forfeiture
should be imposed.
3. In its Response, Spirit asserts that the temporary fence enclosing the
Station KMBQ(AM) antenna structure was effective within the meaning of
section 73.49 of the Rules. Spirit states that when the station began
operation in December 2008, there was three feet of snow on the
ground, the daytime high temperatures ranged from -2 to -8 degrees
Fahrenheit, with wind gusts up to 50 miles per hour, and the overnight
lows were -20 degrees Fahrenheit. Spirit states that notwithstanding
the frigid weather conditions, it constructed other effective
enclosures and took other measures that protected the general public
from the radio frequency potential at the base of the antenna.
Specifically, Spirit describes that it erected fences of both black
plastic sheeting and flexible orange plastic snow fencing, put orange
and red markers around the plastic fencing, put five "No Trespassing"
signs on the plastic fencing, installed additional non-ionizing
radiation signs on the plastic fencing and on the transmitter building
and the radiator block, and that it anchored the signage and sheeting
with additional concrete blocks. Spirit states that it also maintained
a regular physical presence at the site on the actual six-acre parcel
owned by Spirit's President pending construction of the permanent base
fence, along with placing additional no trespassing signs around the
perimeter of the property. Spirit states that once the weather
conditions permitted, it completed construction of a permanent
chain-link locked fence around the AM antenna structure during the
first week in April 2009.
4. On July 26, 2010, the United States District Court for the District of
Alaska issued an Order that placed the assets of Spirit in
receivership, assigned a receiver and ordered the receiver to
"promptly apply to the Federal Communications Commission (FCC) for an
involuntary assignment of licenses and transfer of control of radio
stations operated by [Spirit]." On July 30, 2010, the court-appointed
receiver filed an FCC Form 316 for involuntary transfer of control of
Spirit from Spirit's President to the court-appointed receiver
consistent with the U.S. District Court Order. The Commission granted
the application on August 19, 2010.
5. Upon review of the record in this case, we find that no forfeiture
should be imposed. The good faith compliance measures described above,
the unusual circumstances preventing construction, and the appointment
of a receiver are all relevant to our consideration of any forfeiture,
and in this case to our determination to impose no forfeiture penalty.
6. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, the proposed
forfeiture issued to Spirit of Alaska Broadcasting, Inc., in the above
captioned proceeding WILL NOT BE IMPOSED.
7. IT IS FURTHER ORDERED that a copy of this Order shall be sent both by
First Class Mail and Certified Mail Return Receipt Requested to Spirit
of Alaska Broadcasting, Inc., at 2200 East Parks Highway, Wasilla,
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Spirit of Alaska Broadcasting, Inc., Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200932780001 (Enf. Bur., Western Region,
Anchorage Resident Agent Office, rel. April 30, 2009).
47 C.F.R. S: 73.49.
On February 5, 2009, in response to a complaint, at approximately 10:00
a.m. AST, agents from the Enforcement Bureau's Anchorage Resident Agent
Office ("Anchorage Office"), accompanied by the President of Spirit,
conducted an inspection of the Station KMBQ(AM) transmitter and antenna
site, located at 6362 East Chinook Avenue, Wasilla, Alaska. The inspection
revealed that Spirit had installed a plastic snow fence enclosing the base
of the Station KMBQ(AM) antenna structure.
47 U.S.C. S: 503(b)(4).
Response of Spirit Broadcasting, Inc., filed June 1, 2009 ("Response").
Spirit also notes that multiple efforts were made by its neighbors at the
transmitter site to stop the construction and operation of the
transmitter, and that these efforts delayed Spirit from erecting a
permanent fence. Response at 1-4.
Response at 2.
Response at 2.
Response at 1-4. We note that on April 22, 2009, an Anchorage agent again
inspected the Station KMBQ(AM) transmitter and antenna site and found that
the antenna structure was surrounded by a substantial six foot high chain
link metal fence which fully enclosed the structure.
Gladstone Capital Corporation v. Spirit of Alaska Broadcasting, Inc.,
Order, No. 3:10-cv-0146-HRH (D. Alaska July 26, 2010) ("U.S. District
See File No. BTC-20100730ACU, granted August 19, 2010.
See, e.g., Diamond Broadcasting of California, Inc., Memorandum Opinion
and Order, 11 FCC Rcd 7388 (1996) (rescinding a $25,000 forfeiture issued
against a licensee in receivership); David Ryder, Receiver, Order, 23 FCC
Rcd 10499 (Enf. Bur., South Central Region 2008) (rescinding a $12,000
forfeiture proposed against an entity that had been turned over to a
receiver); Multimedia Development Corp., Memorandum Opinion and Order, 17
FCC Rcd 22649 (WTB, Public Safety & Private Wireless Div. 2002)
(rescinding four proposed forfeitures totaling $80,000 where receiver
replaced offending licensee and forfeiture would harm innocent creditors).
Appointment of a receiver should not necessarily prevent all forfeiture
liability. The Commission may, however, consider such circumstances as a
mitigating factor in any forfeiture determination, including circumstances
such as those here, where the receiver was not involved in the apparent
violation of section 73.49 and was appointed to operate the station for
the benefit of the creditors. See, e.g., David Ryder, Receiver, Memorandum
Opinion and Order and Notice of Apparent Liability for Forfeiture, 21 FCC
Rcd 6371 (Media Bur. 2006) (proposing $1,500 forfeiture against station in
receivership but noting appointment of receiver as mitigating factor)
(subsequent history omitted). As noted above, the overall facts of this
case, including both the receivership and the licensee's good-faith
compliance measures taken prior to FCC inspection, justify the outcome
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
Federal Communications Commission DA 11-1243
Federal Communications Commission DA 11-1243