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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-OR-354
)
Forrester ET AL ) NAL/Acct. No.200332620010
Licensee of KLYR(AM) )
Clarksville, Arkansas ) FRN 0003784691
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 19, 2003
By the Enforcement Bureau, New Orleans Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Forrester ET AL (``Forrester''), licensee
of KLYR(AM), Clarksville, Arkansas, apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000)
for willful violation of Section 73.49 of the Commission's
Rules (``Rules'').1 Specifically, we find Forrester
apparently liable for failing to maintain an effective
locked fence around the base of the antenna tower for radio
station KLYR(AM).
II. BACKGROUND
2. On November 6, 2002, an agent from the FCC
Enforcement Bureau's New Orleans Office inspected radio
station KLYR(AM). At the time of the inspection, the fence
around the field in which the tower was located had numerous
openings with no fencing, affording unrestricted access to
the tower. In addition, there was no fence at the base of
the tower. The tower had radiofrequency potential at the
base.
III. DISCUSSION
3. Section 73.49 of the Rules requires that antenna
towers having radio frequency potential at the base be
enclosed within effective locked fences or other enclosures.
On November 6, 2002, there was no fence around the base of
the antenna tower and the outer fence surrounding the field
afforded many unrestricted access points.
4. Based on the evidence before us, we find Forrester
willfully2 violated Section 73.49 of the Rules by failing to
maintain an effective locked fence around the base of the
antenna tower.
5. Pursuant to Section 1.80(b)(4) of the Rules,3 the
base forfeiture amount for AM tower fencing violations 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 Communications Act of 1934,
as amended (``Act''), which include 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 require.4 Considering the entire
record and applying the factors listed above, this case
warrants a $7,000 forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,5 and Sections 0.111, 0.311 and
1.80 of the Rules,6 Forrester ET AL, is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
seven thousand dollars ($7,000) for willful violation of
Section 73.49 of the Rules by failing to maintain an
effective locked fence around the base of the station's
antenna structure.
7. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Forrester ET AL SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
8. 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 should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.7
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street S.W., Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
10. 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.
11. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
12. IT IS FURTHER ORDERED THAT a copy of this NAL shall
be sent by regular mail and Certified Mail Return Receipt
Requested to Forrester ET AL, P.O. Box 188, Clarksville,
Arkansas 72830.
FEDERAL COMMUNICATIONS COMMISSION
James C. Hawkins
District Director, New Orleans
Office
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. § 73.49.
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 . . . .'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387-88
(1991).
3 47 C.F.R. § 1.80(b)(4).
4 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80.
7 See 47 C.F.R. § 1.1914.