Click here for Adobe Acrobat version
Click here for Microsoft Word version

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                 )
Commonwealth License             )    File Number:  EB-01-DV-138
Subsidiary, LLC                  )    NAL/Acct. No. 200232800004
                                 )    FRN  0003-7484-98
Licensee of Station KLMR(AM)     )
Lamar, Colorado                  )
Facility ID #174


                                             Released:  May 30, 2002

By the District Director, Denver Office, Enforcement Bureau:

                         I.  INTRODUCTION

     1. In this Notice of Apparent Liability for Forfeiture ("NAL"), 
we find that Commonwealth License Subsidiary, LLC ("Commonwealth"), 
licensee of station KLMR, in Lamar, Colorado, apparently willfully 
violated Section 73.49 of the Commission's Rules ("Rules"),1 by 
failing to provide an effective locked fence enclosing the station's 
antenna structures.  We conclude, pursuant to Section 503(b) of the 
Communications Act of 1934, as amended ("Act"),2 that Commonwealth is 
apparently liable for a forfeiture in the amount of seven thousand 
dollars ($7,000).

                         II.  BACKGROUND

     2. On April 25, 2001, a Denver Office Agent inspected station 
KLMR's two antenna structures (NE#1 tower ASR number 1023201 and SW#2 
tower ASR 1023200).  The inspection revealed that the wooden fence 
around the NE#1 tower was approximately four feet tall, the gate on 
the fence was not locked and several wooden pickets were missing.  The 
wooden fence around the SW#2 tower was also only approximately four 
feet tall and had large openings with missing wooden pickets.  Neither 
fence represented an effective enclosure of the tower.  

     3. On December 7, 2001, the Denver Office issued a Notice of 
Violation ("NOV") to Commonwealth for the violations detected on April 
25, 2001.  On December 27, 2001, Commonwealth submitted a reply to the 
NOV.  Commonwealth indicated that on the afternoon of April 25, 2001, 
following the inspection by the FCC agent, the gate lock to NE#1 tower 
was secured.  Commonwealth stated that the missing wooden pickets from 
the fence enclosing the NE#1 and SW#2 towers were replaced on April 
26, 2001.  Commonwealth further represented that a six-foot tall fence 
would be constructed ten feet from the tower base on all sides for the 
NE#1 tower.  Commonwealth's reply did not clearly state it's 
intentions regarding the overall height of the fence around SW#2 

                            III. DISCUSSION

     4. Section 503(b) of the Act provides that any person who 
willfully fails to comply substantially with the terms and conditions 
of any license, or willfully 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.1  
The term "willful" as used in Section 503(b) has been interpreted to 
mean simply that the acts or omissions are committed knowingly.2 

     5. 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."  KLMR's license 
describes the antenna system as a series excited vertical radiator.  A 
"series excited" radiator may also be described as a "series fed" 
radiator.  The AM transmission fencing requirements thus apply to 
station KLMR.  The inspection of the two KLMR towers revealed that the 
NE#1 tower's gate at the base fence was not locked, several wooden 
pickets were missing, and the overall fence height did not represent 
an effective enclosure of the tower.  The SW#2 tower's base fence had 
large openings with missing wooden pickets and the overall fence 
height did not represent an effective enclosure of the 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.

     6.  Based on the evidence before us, we find that Commonwealth 
failed to enclose the AM transmission system for station KLMR with 
effective locked fences or other enclosures in willful violation of 
Section 73.49 of the Commission's 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"),3 and Section 1.80 of the Rules,4 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,5 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

     7. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of 
the Communications Act of 1934, as amended, and Sections 0.111, 0.311 
and 1.80 of the Commission's Rules, Commonwealth License Subsidiary, 
the amount of seven thousand dollars ($7,000) for violation of Section 
73.49 of the Rules.6

     8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the 
Commission's Rules within thirty days of the release date of this 
NOTICE OF APPARENT LIABILITY, Commonwealth License Subsidiary, LLC, 
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a 
written statement seeking reduction or cancellation of the proposed 

     9. 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.

     10.  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.

     11.  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.  

     12.  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 Operations Group, 445 12th Street, 
S.W., Washington, D.C. 20554.7

LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4405, 
Return Receipt Requested, to Commonwealth License Subsidiary, LLC, 
2550 Fifth Avenue, Suite 723, San Diego, CA 92103.

                              FEDERAL COMMUNICATIONS COMMISSION

                              Leo E. Cirbo
                              District Director, Denver Office


     1  47 C.F.R.  73.49.

     2  47 U.S.C.  503(b).

     1  47 U.S.C.  503(b).

     2  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).

     3  12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

     4  47 C.F.R.  1.80.

     5  47 U.S.C.  503(b)(2)(D).

     6  47 U.S.C.  503(b); 47 C.F.R.  0.111, 0.311, 1.80 and 73.49.

     7  See 47 C.F.R.  1.1914.