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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Butterfield Broadcasting ) EB-04-ST-263
Corporation )
) NAL/Acct. No.: 200532980003
Licensee of AM Station KULE ) FRN: 0004281150
Ephrata, Washington )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December
14, 2004
By the District Director, Seattle Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Butterfield Broadcasting Corporation
("Butterfield"), licensee of station KULE, in Ephrata,
Washington, apparently willfully and repeatedly violated
Section 73.49 of the Commission's Rules ("Rules")1 by failing
to effectively enclose its AM broadcast tower. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934,
as amended ("Act"),2 that Butterfield is apparently liable for
a forfeiture in the amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. On July 12, 2004, an agent from the Commission's
Seattle Field Office conducted an inspection of the AM antenna
tower used by Butterfield to broadcast AM station KULE.
According to its license, the KULE antenna tower is series fed
and, therefore, required to be fenced. Upon inspection of the
antenna tower, the field agent found that the gate at the
perimeter of the antenna site was broken and open.3
Specifically, on the north and west sides of the fence, the
fence and fence frame extended almost to the ground. On the
east and south sides of the fence, however, the ground sloped
downward. The fence did not compensate for the slope of the
ground, creating a 12 to 18 inch gap between the ground and the
start of the fence. This gap, which ran along the entire
length of the 20 foot east side and the 10 foot south side, was
large enough to allow access to the interior of the fence and
the base of the tower.
3. On July 13, 2004, an agent from the Seattle Field
Office conducted a broadcast inspection at station KULE in
Ephrata, Washington. The field agent was accompanied by the
station manager of KULE to the AM antenna tower site. At the
site, the agent informed the KULE station manager that the
perimeter gate was broken and that the antenna tower base fence
did not effectively enclose the base of the antenna tower. The
KULE station manager stated that he would fix the base fence.
4. On August 9, 2004, an agent from the Seattle Field
Office again conducted an inspection of the KULE antenna tower.
The field agent found that the gate at the perimeter of the
antenna site remained broken and open, and that the antenna
tower base fence was not repaired to effectively enclose the
antenna tower.
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. The term "willful"
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.4 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.5
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.6 The KULE
AM antenna tower is series fed. At the time of the July
inspection, the fence at the base of the KULE AM antenna tower
did not effectively enclose the antenna. On the south and east
sides of the antenna tower fence, there was a significant gap
at the base of the fence. During the July inspection, a
Commission field agent warned the KULE station manager about
the fence and the station manager said the fence would be
fixed. During the August inspection, the field agent found
that the fence had not been fixed and that the gap in the fence
allowed public access to the AM antenna tower. Butterfield had
been warned by a Commission field agent of the violation
concerning the fence, therefore, the violation was willful.
The violation occurred on more than one day, therefore it was
repeated. Based on the evidence before us, we find that
Butterfield willfully and repeatedly violated Section 73.49 of
the Rules by failing to enclose the KULE AM antenna tower
within an effective enclosed fence.
7. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"), and Section 1.80 of the Rules, the base amount for
failure to maintain an effective AM tower fence is seven
thousand dollars, $7,000.7 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, which
include the nature, circumstances, extent, and gravity of the
violations, 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.8 Applying the
Forfeiture Policy Statement, Section 1.80, and the statutory
factors, 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, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules,
Butterfield Broadcasting Corporation is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand dollars ($7,000) for violation of Section 73.49 of the
Rules.9
9. 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 for Forfeiture,
Butterfield Broadcasting Corporation 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 must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Seattle Office, 11410 NE 122nd Way, Ste. 312, Kirkland,
Washington, 98034-6927 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 for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.10
14. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to
Butterfield Broadcasting Corporation, 706 Butterfield Road,
Yakima, Washington, 98901. A copy of this Notice of Apparent
Liability will be sent to KULE-AM at 910 Basin St SW, Ephrata,
Washington, 98823
FEDERAL COMMUNICATIONS COMMISSION
Dennis J. Anderson
District Director
Seattle Office
Western Region
Enforcement Bureau
_________________________
147 C.F.R. § 73.49.
247 U.S.C. § 503(b).
3The antenna site is a short distance from a residential
community.
4Section 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).
5Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[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.''
647 C.F.R. § 73.49.
712 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
847 U.S.C. § 503(b)(2)(D).
947 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 73.49.
10See 47 C.F.R. § 1.1914.