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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
The Evans Broadcast Company, Inc. ) File Number: EB-08-SF-0284
Licensee of Station KCMY(AM) ) NAL/Acct. No.: 200932960002
Carson City, Nevada ) FRN: 0011889250
Facility ID # 40801 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 25, 2008
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 The Evans Broadcast Company, Inc. ("Evans"), licensee of station
KCMY(AM), in Carson City, Nevada, apparently willfully and repeatedly
violated Section 73.49 of the Commission's Rules ("Rules") by failing
to ensure that the KCMY(AM) antenna towers were enclosed within an
effective locked fence or enclosure. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Evans is apparently liable for a forfeiture in the amount of five
thousand, six hundred dollars ($5,600).
II. BACKGROUND
2. On June 10, 2008, an agent from the Enforcement Bureau's San
Francisco Office inspected KCMY(AM)'s antenna tower site in Carson
City, Nevada, and found that large portions of the wooden base fences
surrounding each of the two KCMY(AM) antenna towers making up the
KCMY(AM) two-tower array were laying on the ground. For one tower,
half of the entire fence was laying on the ground. For the other
tower, large portions, approximately eight to ten feet wide, were
laying on the ground. The agent observed that there was no protective
property fence surrounding the KCMY(AM) antenna site. The agent also
observed that there was a bike path approximately 100 yards from the
antenna site.
3. On June 11, 2008, the San Francisco agent returned to the KCMY antenna
site and again found that large segments of the base fences
surrounding each of the two KCMY(AM) antenna towers were laying on
the ground. The agent also observed that there was no protective
property fence surrounding the KCMY(AM) antenna site. The agent then
conducted an inspection of the KCMY(AM) main studio and interviewed
KCMY(AM) management about the KCMY(AM) fences. The KCMY(AM) manager
acknowledged that the fences had blown down two or three times in the
past, most recently six or seven weeks earlier. The manager told the
agent that the station had attempted to get the fences repaired, and
produced a proposal for repairs, but said that the company proposing
to do the work was waiting for the ground to dry so that their
vehicles did not get stuck in the mud. The agent noted that there was
no set date on the proposal for the repair of the fences. The agent
warned the KCMY(AM) manager that some type of temporary fencing
enclosure had to be erected with warning signs to keep the public from
approaching the KCMY(AM) towers. Later that day, the San Francisco
agent returned to the KCMY(AM) tower site and observed that orange,
plastic temporary fencing had been installed around the two KCMY(AM)
tower fences, along with warning signs.
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. The KCMY(AM) antenna towers are series
fed. 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." On June 10,
2008, and June 11, 2008, a San Francisco agent inspected the KCMY(AM)
antenna tower site and found that, for both towers, the base fences
surrounding those towers were missing large portions of the fences,
and that there was no protective property fence at the site beyond the
base fence. When asked by the San Francisco agent, a KCMY(AM) manger
acknowledged that the fences had been blown down several weeks
earlier, and that efforts had been made to contract with a company to
repair them, but no repairs had been made because of the muddy ground
near the fences. Even though KCMY(AM) management was aware of the
conditions of the fences, it made no effort to enclose them or to warn
the public of the danger of approaching the KCMY(AM) antenna towers
until instructed to do so by the San Francisco agent. Consequently, we
find that Evans' violation was willful. The violation occurred on more
than one day, therefore, it was repeated. Based on the evidence before
us, we find that Evans apparently willfully and repeatedly violated
Sections 73.49 of the Rules by failing to ensure that the AM antenna
towers were enclosed within an effectively locked fence or enclosure.
6. 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 ensure that the AM antenna
towers were enclosed within an effectively locked fence or 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)(E) 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.
Although Evans failed to ensure that the AM antenna towers were
enclosed within an effectively locked fence or enclosure, Evans did
demonstrate that it made a good faith effort to repair the fences
surrounding its AM antenna towers prior to the inspection by the San
Francisco agent. Applying the Forfeiture Policy Statement, Section
1.80, and the statutory factors to the instant case, we find that
Evans' efforts support a good faith reduction of the base forfeiture
amount and we conclude that Evans is apparently liable for a $5,600
forfeiture.
IV. ORDERING CLAUSES
7. 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, The Evans Broadcast Company,
Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of five thousand, six hundred dollars ($5,600) for
violations of Section 73.49 of the Rules.
8. 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, The Evans Broadcast
Company, Inc., SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. The Evans Broadcast Company,
Inc., will also send electronic notification on the date said payment
is made to WR-Response@fcc.gov.
10. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Francisco Office,
5653 Stoneridge Drive, Ste. 105, Pleasanton, California, 94588-8543
and must include the NAL/Acct. No. referenced in the caption. An
electronic copy shall be sent to WR-Response@fcc.gov.
11. 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.
12. 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 The Evans Broadcast Company,
Inc.
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. Van Stavern
District Director
San Francisco District 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.
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").
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)(E).
Reductions based on good faith efforts to comply generally involve
situations where violators demonstrate that they initiated measures to
correct or remedy violations prior to a Commission inspection or
investigation. See Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965
(2003), recon. denied, 18 FCC Rcd 25481 (2003).
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
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Federal Communications Commission