Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Sam Bushman ) File Number EB-01-DV-388
) NAL/Acct. No. 200232800003
Licensee of Station KNAK(AM) ) FRN 0003-7785-45
Delta, Utah )
Facility ID #35207 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 17, 2002
By the District Director, Denver Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Sam Bushman, licensee of Station KNAK, in Delta, Utah,
apparently willfully and repeatedly violated Section 73.49 of the
Commission's Rules ("Rules")1 by failing to provide an effective
locked fence enclosing the station's antenna structure. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"),2 that Sam Bushman is apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. During a routine inspection on August 16, 2001, FCC Agents
from the Denver Office inspected the registered antenna structure for
AM station KNAK, in Delta, Utah (ASR# 1065027), licensed to Sam
Bushman. The agents found the gate to the fence enclosing the AM
antenna structure lying on the ground, completely detached from the
fence.
3. On December 27, 2001, the Denver Office issued a Notice of
Violation ("NOV") to Sam Bushman for the violations observed on August
16, 2001, including the violation of the AM transmission system
fencing requirements in Section 73.49 of the Commission's Rules. On
January 18, 2002, the Denver Office received both a fax and e-mail
reply to the NOV. Mr. Bushman stated that the gate had collapsed due
to "vandals and/or strong wind gusts," and that he was in the process
of having the gate repaired. On March 5, 2002, the Denver Office
received photographs via e-mail from Mr. Bushman of the completed
repairs to KNAK's gate and fence enclosing the antenna structure.
4. The December 27, 2001, NOV was the second NOV issued by the
Denver Office to Sam Bushman for a violation by station KNAK of the AM
transmission system fencing requirements. On May 26, 1999, during an
inspection of station KNAK, an Agent from the Denver Office found the
east side of the fence enclosing this same antenna structure in poor
repair with a large hole in the fence. A NOV was issued to Sam
Bushman on June 4, 1999, for multiple violations, including Section
73.49. Mr. Bushman responded on June 28, 1999, and provided
photographic proof of the repairs.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the terms
and conditions of any license, or willfully or repeatedly fails to
comply with any of the provisions of the Act or of any rule,
regulation or order issued by the Commission thereunder, shall be
liable for a forfeiture penalty.3 The term "willful" as used in
Section 503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly.4
6. Section 73.49 of the Rules states in part that "[a]ntenna
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." KNAK's license
describes the antenna system as a series-excited radiator. A "series
excited" radiator may also be described as a "series fed" radiator.
The AM transmission fencing requirements thus apply to station KNAK.
The May 26, 1999, inspection of the KNAK antenna structure found the
fence enclosing the antenna structure broken on the east side allowing
access to the radiating tower. The August 16, 2001, inspection of the
KNAK antenna structure revealed that the gate on the fence enclosing
the antenna structure was not attached, therefore allowing access to
the radiating tower. Effective base fencing is an important safety
requirement. AM series-fed antenna structures radiate energy that
renders any physical contact with the antenna structure itself
extremely dangerous. In addition, AM antenna structures are capable
of generating radio frequency fields at the base of the antenna
structure that may exceed the Commission's maximum permissible
exposure guidelines. Effective base fencing is thus important to
prevent possible contact with the radiating structure and excessive
radio frequency radiation exposure.
7. Based on the evidence before us, we find that Sam Bushman,
licensee of station KNAK failed to enclose the AM transmission system
with an effective locked fence or other enclosure in willful and
repeated violation of Section 73.49 of the Rules. The base forfeiture
amount set by The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, ("Forfeiture Policy Statement"),5 and Section 1.80 of the
Commissions Rules,6 for failure to comply with AM tower fencing is
$7,000. In assessing the monetary forfeiture amount, we must also
take into account the statutory factors set forth in Section
503(b)(2)(D) of the Act,7 which include the nature, circumstances,
extent, and gravity of the violation(s), and with respect to the
violator, the degree of culpability, and history of prior offenses,
ability to pay, and other such matters as justice may require.
Applying the Forfeiture Policy Statement and the statutory factors to
the instant case, a $7,000 forfeiture is warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of
the Communications Act of 1934, as amended,8 and Sections 0.111, 0.311
and 1.80 of the Commission's Rules,9 Sam Bushman is hereby NOTIFIED of
an APPARENT LIABILITY FOR A FORFEITURE in the amount of seven thousand
dollars ($7,000) for violation of Section 73.49 of the Rules, 47
C.F.R. §73.49.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules,10 within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Sam Bushman SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10.Payment of the forfeiture may be made by mailing a check or
similar instrument, payable to the order of the Federal Communications
Commission, to the Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment must include the FCC Registration Number
(FRN) and the NAL/Acct. No. referenced in the caption.
11.The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Technical and Public Safety Division,
445 12th Street, S.W., Washington, D.C. 20554 and must include the
NAL/Acct. No. referenced in the caption.
12.The Commission will not consider reducing or canceling a
forfeiture in response to a claim of inability to pay unless the
petitioner submits: (1) federal tax returns for the most recent
three-year period; (2) financial statements prepared according to
generally accepted accounting practices ("GAAP"); or (3) some other
reliable and objective documentation that accurately reflects the
petitioner's current financial status. Any claim of inability to pay
must specifically identify the basis for the claim by reference to the
financial documentation submitted.
13.Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Chief, Revenue and Receivables Operation Group, 445 12th Street, S.W.,
Washington, D.C. 20554.11
14.IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4092,
Return Receipt Requested, to Sam Bushman, P. O. Box 636, 315 East 300
South, Delta, UT 84624.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
_________________________
1 47 C.F.R. § 73.49.
2 47 U.S.C. § 503(b).
3 47 U.S.C. § 503(b).
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under Section
503(b) of the Act, provides that "[t]he term 'willful', when used with
reference to the commission or omission of any act, means the
conscious and deliberate commission or omission of such act,
irrespective of any intent to violate any provision of this Act or any
rule or regulation of the Commission authorized by this Act?." See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). Section
312(f)(2), which also applies to Section 503(b), provides: "[t]he term
"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."
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 1.80.
11 See 47 C.F.R. § 1.1914.