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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Perreira Broadcasting ) File Number: EB-06-SF-273
Licensee of Station KIGS ) NAL/Acct. No.: 200732960004
Hanford, CA ) FRN: 0000021709
Facility ID # 51122 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 2, 2007
By the District Director, San Francisco Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Perreira Broadcasting ("Perreira"), licensee of radio station
KIGS, in Hanford, California, apparently repeatedly violated Section
73.49 of the Commission's Rules ("Rules") by failing to enclose the
antenna towers within effective locked fences or other enclosures. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Perreira is apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000). We also
issue to Perreira a Notice of Violation for failing to operate KIGS
within the terms of its license, a violation of Sections 73.1350(a)
and 73.1745(a) of the Rules.
II. BACKGROUND
2. On August 29, 2006, an agent from Enforcement Bureau's San Francisco
Office inspected the antenna towers used by Perreira to broadcast
KIGS. KIGS utilizes two antenna towers to broadcast its signal:
antenna structure # 1016446, and antenna structure # 1016447.
According to its license, the KIGS antenna towers are series fed and,
therefore, are required to be fenced. Upon inspection of the antenna
towers, the agent found no effective locked fences or other barriers
surrounding the base of antenna structure # 1016446, or the base of
antenna structure # 1016447. The agent observed that the chain-link
fence was missing around each tower, with only the support posts
remaining in place. The agent also observed that there was no
perimeter fence surrounding the KIGS antenna site and that the KIGS
antenna site is adjacent to a residence. During the inspection that
day, the San Francisco agent discussed the missing fencing for the two
KIGS towers with the general manager of KIGS and learned that the
chain link fence surrounding the towers had been removed to cut down
grass and weeds. The general manager indicated that the fencing was
removed about two weeks prior to the date of the San Francisco agent's
inspection.
3. KIGS is authorized to operate on 620 kHz at a power of 1,000 watts
with a non-directional pattern during daytime hours and 1,000 watts
with a directional pattern during nighttime hours. In Hanford,
California, during the month of August, local sunrise occurs at 6:15
a.m. and local sunset occurs at 7:45 p.m. At the time of the
inspection on August 29, 2006, the San Francisco agent measured KIGS's
field strength from 7:40 p.m. to 7:55p.m., and found that KIGS did not
change to nighttime pattern at 7:45 p.m. as required by the station
license.
III. DISCUSSION
4. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. 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. Individual tower fences need not be
installed if the towers are contained within a protective property
fence. In adopting the Report and Order promulgating the most recent
amendment of Section 73.49, the Commission stated that "a fencing
requirement is necessary to protect the general public." At the time
of the inspection on August 29, 2006, the chain link fence around the
KIGS towers had been removed, and there was no perimeter fence around
the property. Because there was no perimeter fence, the base fences
around the individual AM towers must be effective.
6. The KIGS antenna towers are series fed and, pursuant to Section 73.49,
each of the two KIGS towers must be enclosed within an effective
locked fence or other enclosure. The two towers, antenna structure #
1016446 and antenna structure # 1016447, both had the chain-link fence
missing, with only support posts remaining in place, making both
towers easily accessible to the general public. This is of particular
concern, given that the KIGS antenna site is adjacent to a residence.
The two KIGS towers lacked effective locked fencing or other
enclosures for more than one day. By Perreira's own admission the
fencing had been removed for about two weeks prior to the San
Francisco agent's inspection. For these reasons, Perreira's violation
is repeated. Based on the evidence before us, we find that Perreira
apparently repeatedly violated Section 73.49 of the Rules by failing
to enclose both of the KIGS antenna towers within effective locked
fences or other enclosures.
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 forfeiture amount for failing to enclose the antenna towers
within effective locked fences or other enclosures 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, 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. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Perreira is apparently liable for a seven
thousand dollar ($7,000) forfeiture.
8. Notice of Violation. Section 73.1350(a) of the Rules states that each
licensee is responsible for maintaining and operating its broadcast
station in a manner which complies with the technical rules and in
accordance with the terms of the station license. Specifically,
Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times or with modes or power, other than those specified
and made part of the license. At the time of the inspection on August
29, 2006, the San Francisco agent found that KIGS did not change to
nighttime pattern at 7:45 p.m. as required by the station license.
Therefore, pursuant to Section 1.89 of the Rules, this Notice of
Violation is issued to Perreira Broadcasting for failing to change
KIGS's pattern pursuant to its license, violating Sections 73.1350(a)
and 73.1745(a) of the Rules. We caution Perreira to ensure that KIGS
is operating at all times utilizing the pattern authorized by its
license.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Perreira Broadcasting is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand dollars ($7,000) for violations of Section
73.49 of the Rules.
10. 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, Perreira Broadcasting
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
11. IT IS FURTHER ORDERED, pursuant to Section 403 of the Communications
Act of 1934, as amended, and Section 1.89 of the Commission's Rules,
that Perreira Broadcasting submit a written statement concerning
KIGS's violations of Sections 73.1350(a) and 73.1745(a) of the Rules
within 30 days of release of this Notice of Violation. The response
must fully explain each violation, must contain a statement of the
specific action(s) taken to correct each violation and preclude
recurrence, and should include a time line for completion of pending
corrective action(s). The response must be complete in itself and
signed by a principal or officer of Perreira Broadcasting. All replies
and documentation sent in response to this Notice should be marked
with the File No. specified above, and mailed to the address specified
in paragraph 14, below.
12. 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
13. The response to the NAL, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, San
Francisco Office, 5653 Stoneridge Dr., Ste. 105, Pleasanton,
California, 94588-8543 and must include the NAL/Acct. No. referenced
in the caption.
14. 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.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Notice of Violation shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Perreira
Broadcasting, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. Van Stavern
District Director
San Francisco Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.49.
47 U.S.C. S 503(b).
See 47 C.F.R. S 1.89.
47 C.F.R. SS 73.1350(a), 73.1745(a).
The agent also observed that the antenna structure registration numbers
for the two AM towers, as well as any high voltage or radiofrequency
radiation warning signs, had also been removed with the fencing.
All times indicated are local Pacific Daylight Savings Time. Daytime is
defined as the "period of time between local sunrise and local sunset" and
nighttime is defined as the period "between local sunset and local
sunrise." 47 C.F.R S 73.14.
Section 312(f)(1) of the Act, 47 U.S.C. S 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) of the Act, 47 U.S.C. S 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."
47 C.F.R. S 73.49.
47 C.F.R. S 73.49.
Review of the Technical and Operational Regulations of Part 73, Subpart A,
AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, P6 (1986)
("Report and Order").
See Butterfield Broadcasting Corporation, 20 FCC Rcd 20237 (EB 2005).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S
1.80.
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 73.1350(a).
47 C.F.R. S 73.1745(a).
47 C.F.R. S 1.89.
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.49.
47 U.S.C. S 403.
47 C.F.R. S 1.89.
47 C.F.R. SS 73.1350(a), 73.1745(a).
The Privacy Act of 1974, P.L. 93-579, 5 U.S.C. S 552a(e)(3), requires that
we advise you that the Commission will use all relevant material
information before it, including any information disclosed in your reply,
to determine what, if any, enforcement action is required to ensure
compliance. Any false statement made knowingly and willfully in reply to
this Notice is punishable by fine or imprisonment under Title 18 of the
U.S. Code. 18 U.S.C. S 1001 et seq.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission