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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Brahmin Broadcasting Corporation ) File Number: EB-07-DV-132
Licensee of Station KRAE-AM ) NAL/Acct. No.: 200732800006
Cheyenne, WY ) FRN: 0010593085
Facility ID # 35510 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 31, 2007
By the District Director, Denver District Office, Western Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Brahmin Broadcasting Corporation ("Brahmin"), licensee of station
KRAE, in Cheyenne, Wyoming, apparently repeatedly violated Section
73.49 of the Commission's Rules ("Rules") by failing to enclose the
KRAE antenna structure, a tower with radio frequency potential at the
base, with an effective locked fence or other enclosure. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Brahmin is apparently liable for a forfeiture in
the amount of seven thousand dollars ($7,000).
2. On March 6, 2007, agents from the Enforcement Bureau's Denver District
Office conducted an inspection of a structure located at approximately
41DEG 07' 26" north latitude and 104DEG 49' 12" west longitude in
Cheyenne, Wyoming. Close observation revealed that a single wooden
panel section of the base fence, approximately six feet in width, was
laying on the ground, and allowing access to the structure, a
series-fed antenna with an insulated base. The agents observed that
the structure resided in an open field located within a residential
area. A search of the Commission's database on-scene confirmed that
the structure was broadcasting the signal of KRAE, an AM station
licensed to Brahmin, in Cheyenne, Wyoming.
3. Later on March 6, 2007, the agents arrived at the KRAE studio and
issued a verbal warning regarding the base fence violation to the two
Brahmin employees present for the inspection. The agents interviewed
Brahmin's business manager and the chief engineer for KRAE. During the
interview, the engineer acknowledged that he had received a call on
February 20, 2007, regarding an issue with KRAE's base fence. The
engineer assumed that the caller, a former owner of the station, was
merely referring to a single vertical slat of the fence when informing
Brahmin of a "hole in the fence." The engineer admitted he had yet to
visit the KRAE transmitter site in order to assess the damage to the
fence as of the date of the agents' interview. The KRAE staff
indicated to the agents that they would immediately repair the fence.
4. On May 2, 2007, a Denver agent asked a staffer with the Wyoming
Office of Homeland Security ("WOHS"), to check the base fence around
KRAE. The WOHS staffer inspected the KRAE base fence and reported that
the six foot wooden panel section of fence, which was laying on the
ground during the March 6, 2007, inspection, had been restored.
5. On May 15, 2007, a Denver agent contacted the former owner of KRAE,
who indicated that he had informed Brahmin on several occasions,
including the February 20, 2007, call, that the six-foot fence panel
had been blown down. The former owner indicated that he was concerned
for the safety of the children nearby.
6. 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 "repeated" means the commission or omission of such
act more than once or for more than one day.
7. 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."
8. KRAE broadcasts from a series-fed tower with an insulated base and,
pursuant to Section 73.49, must be enclosed with an effective locked
fence or other enclosure. At the time of the March 6, 2007,
inspection, a six foot wide panel of the fence was found on the
ground, rendering the remaining fence ineffective. The structure is
sited in a residential portion of the city, however; there is no
perimeter fencing to further dissuade the public from approaching the
structure. Because there was no perimeter fence, the base fence around
the individual AM tower must be effective. With an entire panel
missing from the fence, the agents were able to easily access the KRAE
tower. Brahmin was made aware of the condition of the fence on
February 20, 2007, by the former owner of KRAE. Brahmin, however,
failed to investigate or repair the condition of the fence until the
inspection by the Denver agents on March 6, 2007. Based on the
evidence before us, we find that Brahmin apparently repeatedly
violated Section 73.49 of the Rules by failing to maintain the KRAE
antenna structure within an effective enclosure.
9. 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 tower within
an effective locked fence or other enclosure 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 Brahmin is apparently liable for a seven
thousand dollar ($7,000) forfeiture.
IV. ORDERING CLAUSES
10. 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, Brahmin 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.
11. 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, Brahmin 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.
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, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado, 80226 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 shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Brahmin Broadcasting Corporation.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
Denver District Office
47 C.F.R. S: 73.49.
47 U.S.C. S: 503(b).
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, P:6 (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.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.49.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission