Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
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 )
Christopher H. Bennett Broadcasting )
of Washington, Inc. File Nos.: EB-07-PO-052
)
Licensee of AM Station KBMS NAL/Acct. No.: 200732920003
)
Vancouver, Washington FRN: 0005021084
)
Facility ID No. 11162
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 22, 2007
By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Christopher H. Bennett Broadcasting of Washington, Inc. ("Bennett
Broadcasting"), licensee of AM radio station KBMS in Vancouver,
Washington, apparently repeatedly violated Section 73.49 of the
Commission's Rules ("Rules") by failing to enclose the KBMS antenna
towers within effective locked fences or other enclosures and
apparently repeatedly violated Section 73.1125(a) of the Rules by
failing to maintain an accessible main studio in its community of
license. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Bennett Broadcasting is
apparently liable for a forfeiture in the amount of fourteen thousand
dollars ($14,000).
II. BACKGROUND
2. On March 21, 2007, an agent from the Enforcement Bureau's Portland
Resident Agent Office contacted KBMS to conduct an inspection. The
Portland agent was advised by a KBMS representative that the inspection
could be made only by appointment. The agent left his contact telephone
number and waited for a return call from the KBMS licensee.
3. On March 22, 2007, the agent was contacted by the owner of Bennett
Broadcasting, who advised the agent to make an inspection appointment with
his local station manager. The agent was then advised by the KBMS station
manger that the appointment was set up for 10:00 a.m. the next day, at the
combined KBMS transmitter and main studio located at 11197 N. Portland
Road, Portland, Oregon. Later on March 22, 2007, the Portland agent
arrived and surveyed KBMS's main studio at the given address of 11197 N.
Portland Road. The agent observed a locked gate preventing access to the
main road leading to the KBMS main studio. On the middle of the gate was a
yellow "No Trespassing" warning sign posted.
4. On March 23, 2007, the Portland agent inspected the KBMS main studio.
The agent asked the KBMS station manager why there was a locked gate in
front of the road leading to the KBMS main studio, and the station manager
replied that individual who owned a residence next to the KBMS main studio
and transmitter site wanted the locked gate installed to prevent the
public from having access to his property.
5. Later on March 23, 2007, the Portland agent inspected the antenna
towers used by Bennett Broadcasting to broadcast KBMS. KBMS is a
directional AM station, which uses three antenna towers to broadcast its
signal: antenna structure #1034715; antenna structure #1034716; and
antenna structure #1034717. According to its license, the KBMS antenna
towers are series fed and, therefore, required to be fenced. Upon
inspection of the KBMS antenna towers, the agent found that there were no
effective locked fences or other barriers surrounding the bases of the
antenna structures. The agent noted that there was no perimeter fence
surrounding the entire KBMS-AM antenna site and that there was a
residence approximately 300 yards from KBMS antenna site. The agent also
noted that there were no radio frequency hazard warning signs posted near
the bases of the towers.
6. On March 26, 2007, the Portland agent returned to the KBMS main studio
and transmitter site and he observed that KBMS did not have any locked
fences surrounding the bases of the antenna towers. The agent also noted
that the front door of KBMS's main studio was locked, and that there was
no staff in the main studio.
7. On April 5, 2007, Bennett Broadcasting provided a written statement
indicating that due to local zoning restrictions, the KBMS antenna towers
were built in 1984 on tall concrete piers without the required AM fencing.
8. On April 19, 2007, and April 20, 2007, the Portland agent returned to
the KBMS transmitter site and observed that KBMS still did not have any
fences surrounding the bases of the antenna towers. The agent also noted
that the front door of the KBMS main studio was locked, and that there was
no staff in the main studio.
III. DISCUSSION
9. 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.
10. 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 inspections, from March 23, 2007
through April 20, 2007, the agent observed that there were no effective
locked fences or other barriers surrounding the bases of the three antenna
structures. The agent noted that there was not a perimeter fence
surrounding the entire KBMS antenna site and that there was a residence
approximately 300 yards from KBMS antenna site.
11. The KBMS antenna towers are series fed and, pursuant to Section 73.49,
each of the three KBMS towers must be enclosed within an effective
locked fence or other enclosure. None of the three towers were effectively
enclosed. Inspection by the Portland agent revealed that the bases of the
towers could be reached by climbing up onto the wooden shacks built next
to each of the antenna towers. Additionally, we have found no evidence
that Bennett Broadcasting ever requested a waiver of Section 73.49 from
the Commission. Bennett Broadcasting's failure to effectively enclose the
three AM towers used by KBMS occurred for more than one day, therefore
Bennett Broadcasting's violation was repeated. Based on the evidence
before us, we find that Bennett Broadcasting apparently repeatedly
violated Section 73.49 of the Rules by failing to enclose the three KBMS
antenna towers within effective locked fences or other enclosures.
12. Section 73.1125(a) of the Rules requires the licensee of a broadcast
station to maintain a main studio at one of the following locations: (1)
within the station's community of license; (2) at any location within the
principal community contour of any AM, FM or TV broadcast station licensed
to the station's community of license; or (3) within twenty-five miles
from the reference coordinates of the center of its community of licensed
as described in Section 73.208(a)(1). In addition, the station's main
studio must serve the needs and interests of the residents of the
station's community of license. To fulfill this function, a station must,
among other things, maintain a meaningful managerial staff presence at its
main studio. The Commission has defined a minimally acceptable "meaningful
presence" as full-time managerial and full-time staff personnel. In
addition, there must be "management and staff presence" on a full-time
basis during normal business hours to be considered "meaningful." Although
management personnel need not be "chained to their desks" during normal
business hours, they must "report to work at the main studio on daily
basis, spend a substantial amount of time there and ... use the studio as
a home base." The Portland agent's inspections conducted on March 23,
2007, March 26, 2007, April 19, 2007, and April 20, 2007, revealed that
the site held out by Bennett Broadcasting as the main studio location for
KBMS had no public access due to the locked gate and the "No Trespassing"
warning sign. Other than the day of the appointment that the Portland
agent made to inspect the KBMS main studio, the agent found no staff
presence at the KBMS main studio. The failure to maintain a main studio
occurred on more than one day, therefore, it was repeated. Based on the
evidence before us, we find that Bennett Broadcasting apparently
repeatedly violated Section 73.1125(a) of the Rules, by failing to
maintain an accessible main studio in its community of license.
13. 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 $7,000, and
the base forfeiture amount for failing to comply with the main studio
requirements 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 Bennett Broadcasting is apparently liable for a fourteen thousand
dollars ($14,000) forfeiture.
IV. ORDERING CLAUSES
14. 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, Christopher H. Bennett Broadcasting of
Washington, Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of fourteen thousand dollars ($14,000) for
violation of Section 73.49 and Section 73.1125(a) of the Rules.
15. 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, Christopher H. Bennett Broadcasting
of Washington, Inc., SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
16. 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,
Pittsburg, PA 15251. Payment by wire transfer may be made to ABA Number
043000261, receiving bank Mellon Bank, and account number 911-6106.
17. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Portland Resident Agent
Office, P.O. Box 61469, Vancouver, Washington 98666-1469 and must include
the NAL/Acct. No. referenced in the caption.
18. 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.
19. 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 12^th
Street, S.W., Washington, D.C. 20554.
20. 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 Christopher H. Bennett Broadcasting of Washington,
Inc., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Binh Nguyen
Resident Agent
Portland Resident Agent Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.49.
47 U.S.C. S 503(b).
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 an Operational Regulations of Part 73, Subpart A,
AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, P6 (1986)
("Report and Order").
47 C.F.R. S 73.208(a)(1).
See Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3217-18
(1987), clarified 3 FCC Rcd 5024, 5026 (1988).
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified 7 FCC Rcd 6800 (1992).
Id.
7 FCC Rcd at 6802.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80, 73.49.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
3
Federal Communications Commission