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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
Commonwealth License             )    File Number:  EB-01-DV-138
Subsidiary, LLC                  )    NAL/Acct. No. 200232800004
                                )    FRN 0003-7484-98
Licensee of Station KLMR(AM)     )
Lamar, Colorado                  )
Facility ID #174

                        FORFEITURE ORDER

   Adopted:  October 9, 2003            Released:  October 14, 

By the Chief, Enforcement Bureau:

                         I.   INTRODUCTION

     1.   In this  Forfeiture  Order,  (``Order''),  we  issue  a 
monetary forfeiture in the amount  of five thousand five  hundred 
dollars  ($5,500)   to  Commonwealth   License  Subsidiary,   LLC 
(``Commonwealth''),  licensee   of   Station   KLMR(AM),   Lamar, 
Colorado,  for  willful  violation   of  Section  73.49  of   the 
Commission's Rules  (``Rules'').1  The  noted violation  involves 
Commonwealth's  failure  to   provide  effective  locked   fences 
enclosing the station's two antenna structures.

     2.   On May  30,  2002, the  Commission's  Denver,  Colorado 
Field Office  (``Denver Office'')  issued  a Notice  of  Apparent 
Liability  for  Forfeiture  (``NAL'')  in  the  amount  of  seven 
thousand  dollars  ($7,000)   to  Commonwealth   for  the   noted 
violation.2  Commonwealth filed a response to the NAL on June 18, 

                          II.  BACKGROUND

     3.   On April 25, 2001, in response to a complaint, an agent 
from  the  Denver   Office  inspected   KLMR(AM)'s  two   antenna 
structures, NE#1 tower  antenna structure registration  (``ASR'') 
number  1023201  and  SW#2   tower  ASR  number  1023200.3    The 
inspection revealed that the wooden  fence around the NE#1  tower 
was only approximately four feet tall, the gate on the fence  was 
not  locked  and  several  wooden  pickets  were  missing.    The 
inspection also revealed  that the wooden  fence around the  SW#2 
tower was also only  approximately four feet  tall and had  large 
openings with missing wooden pickets.  Neither fence  represented 
an effective enclosure of the tower pursuant to Section 73.49  of 
the Rules.

     4.   On December 7, 2001, the Denver Office issued a  Notice 
of  Violation  (``NOV'')  to  Commonwealth  for  the   violations 
discovered during the  April 25,  2001 inspection.   Commonwealth 
submitted a reply to the NOV on December 27, 2001.   Commonwealth 
indicated that the gate lock to  NE#1 tower was secured on  April 
25, 2001  after  the agent's  inspection,  and that  the  missing 
wooden pickets from the fences enclosing the NE#1 and SW#2 towers 
were replaced on  April 26, 2001.   On May 30,  2002, the  Denver 
Office issued an NAL in the amount of $7,000 to Commonwealth  for 
failure  to  provide  effective   locked  fences  enclosing   the 
station's antenna structures.  Specifically,  the NAL noted  that 
at the time of the inspection, the NE#1 tower's gate at the  base 
fence was not  locked, several wooden  pickets were missing,  and 
the overall fence height did not represent an effective enclosure 
of the tower.  The NAL also indicated that the SW#2 tower's  base 
fence had large openings with missing wooden pickets and that the 
overall fence height did not represent an effective enclosure  of 
the tower.

     5.   In its response  to the NAL,  Commonwealth argues  that 
the proposed forfeiture should be cancelled because for the  past 
30 years, the fences surrounding each of its two towers have been 
of sufficient  height to  protect  anyone near  the base  of  the 
towers.  Commonwealth also suggests that in light of the distance 
between the  towers and  the  nearest road,  the towers  are  not 
easily accessible.  With respect to the open gate and the  broken 
pickets, Commonwealth  contends  that it  corrected  the  problem 
immediately  as  to  each   tower.   In  addition,   Commonwealth 
speculates that the problem was  not due to ``chronic  neglect,'' 
but may have been caused  by ``severe weather'' that occurred  in 
the area  on April  11, 2001.  Commonwealth adds  that since  the 
inspection, it  has  had the  fence  surrounding the  NE#1  tower 
replaced.  Moreover,  Commonwealth claims  the fence  surrounding 
the SW#2 tower was  missing only two  pickets, that the  existing 
pickets were of adequate height, and that there was no damage  to 
the gate.   Commonwealth  also  indicates  that  the  SW#2  tower 
generates a  low  amount  of  radiation.   Further,  Commonwealth 
argues  that  according   to  the  Office   of  Engineering   and 
Technology's (``OET'') Bulletin 65 Supplement A,4 the NE#1  tower 
required a fence  ``of no more  than two meters  less than  eight 
feet from tower base in all directions'' to be compliant with the 
licensee's  power  and  frequency,  and  that  the   Commission's 
regulations are not specific  as to the  height of tower  fences.  
Moreover, Commonwealth contends that  KLMR(AM) subscribed to  the 
FCC Alternative Broadcast Inspection Program through the Colorado 
Broadcasters Association, and  had an  FCC Regulatory  Compliance 
Certification.  Finally, Commonwealth  asserts that the  proposed 
forfeiture amount  issued to  its ``small  market station''  will 
play a determining factor in its future financial existence.

                         III.   DISCUSSION

     6.   The forfeiture  amount in  this  case was  proposed  in 
accordance with Section 503(b) of the Communications Act of 1934, 
as amended,  (``Act'')5  Section  1.80 of  the  Rules,6  and  The 
Commission's Forfeiture Policy Statement and Amendment of Section 
1.80 of the  Rules to Incorporate  the Forfeiture Guidelines,  12 
FCC Rcd 17087 (1997), recon. denied,  15 FCC Rcd 303 (1999).   In 
examining Commonwealth's  response,  Section 503(b)  of  the  Act 
requires that  the  Commission  take  into  account  the  nature, 
circumstances, extent  and gravity  of  the violation  and,  with 
respect to the violator, the  degree of culpability, any  history 
of prior  offenses, ability  to pay,  and other  such matters  as 
justice may require.7

     7.   Section 73.49 of the Rules provides that all AM antenna 
towers having radio frequency (``RF'') potential at the base must 
be enclosed within an effective locked fence or other  enclosure.  
Section 73.49 of  the Rules  does not  require individual  fences 
around towers if  the individual  towers are  contained within  a 
protective property fence.  The  agent's inspection found,  inter 
alia, the  NE#1  tower  did not  represent  an  effective  locked 
enclosure because the northwest entry gate was standing open  and 
was not locked.8  With regard to Commonwealth's second tower, the 
SW#2 tower  did  not  represent  an  effective  locked  enclosure 
because the fence had four gaps.  Specifically, the fence had one 
opening approximately 24  inches wide,  another approximately  30 
inches wide, and two openings each approximately 18 inches  wide.  
Thus, we  find that  the condition  of the  fences constituted  a 
safety hazard because they did not provide suitable protection to 
the public from possible  contact with the radiating  structure.9  
Commonwealth's argument that  the fences have  been in  existence 
for at least  30 years and  are of sufficient  height to  protect 
anyone near the towers is not persuasive because the gate to NE#1 
was not locked and was open when the agent inspected the station.  
Further, Commonwealth's argument that access to the towers is not 
easy is unpersuasive, because the NE#1 tower, which was unlocked, 
is only 350 feet from the station and nearest road.  Commonwealth 
states that it corrected the open gate on NE#1 and broken pickets 
on  the  same  day  that  the  agent  discovered  the  violation.  
However, Commonwealth's remedial efforts to correct the violation 
are not a mitigating factor.10  In addition, Commonwealth asserts 
that the damage may have been caused by severe weather.  However, 
based on Commonwealth's  response, after a  1998 report that  its 
fence complied with  the rule, Commonwealth  never inspected  its 
fence  to  ensure  that  it  remained  in  compliance  with   the 
Commission's rule.  Therefore, in light of its conscious decision 
not to check the fence during  a nearly three-year period, we  do 
not believe  that  Commowealth's argument  regarding  the  severe 
weather event warrants reduction of the forfeiture amount.

     8.   Further,  we  are   not  persuaded  by   Commonwealth's 
argument that the NE#1 tower required a fence of no more than two 
meters less than 8 feet from the tower base in all directions  to 
be compliant with its power and frequency.  OET Bulletin 65  does 
not contain any  reference to  fence height.   It does,  however, 
specify  minimum  distances  from  radiating  elements.   Section 
1.1310 of  the  Rules establishes  the  criteria to  be  used  to 
evaluate  the  environmental  impact  of  human  exposure  to  RF 
radiation based on the station's power.  OET Bulletin 65  permits 
the use of  a fence  to restrict access  as one  method to  limit 
human exposure to excessive RF radiation levels.11  Although  OET 
Bulletin 65  does  not specify  the  type or  condition  of  such 
fencing, it clearly  states that restricting  access to the  area 
surrounding an AM tower is  one method of complying with  Section 
1.1310 of the Rules.  The fence  used to limit human exposure  to 
excessive RF radiation levels under  Section 1.1310 of the  Rules 
can also  be  used to  meet  the AM  fencing  requirements  under 
Section 73.49 of the  Rules.  However, it can  only do so if  the 
fence  is  considered  an  ``effective  locked  fence  or   other 
enclosure.''  Here,  as indicated  above, the  fence  surrounding 
NE#1 was standing open and was not locked.

     9.   Regarding Commonwealth's  argument  that  it  had  been 
inspected under the FCC's  voluntary FCC inspection program,  had 
passed the inspection and concluded that its fences complied with 
FCC requirements, we do not  disagree with Commonwealth that  the 
fences complied when the station was inspected on August 25, 1998 
as part  of the  FCC's Alternative  Broadcast Inspection  Program 
(``ABIP'').  In fact, we assume that stations inspected under the 
ABIP comply and we  do not routinely  inspect such stations.   We 
inspected Commonwealth, however, because we received a  complaint 
that one of its tower lights was inoperative and had been off for 
a month.  The agent noted the poor condition of the tower  fences 
while investigating whether the light was functioning properly.12  
The ABIP agreement for  the Colorado Broadcasters Association  in 
effect during the relevant period states, in pertinent part, that 
the FCC is permitted to inspect a station during the pendancy  of 
an  ABIP  certification  on  the  basis  of  a  complaint.   This 
agreement does not prohibit the FCC from inspecting a station for 
compliance  with  other  public  safety  requirements  during  an 
inspection conducted as a result of a complaint.13  

     10.  Although  Commonwealth  suggests   that  the   proposed 
forfeiture will affect  its future financial  existence, it  does 
not submit any financial documentation  from which we can  assess 
its  ability  to  pay.   Therefore,  we  decline  to  reduce  the 
forfeiture amount  on this  basis.  We  do, however,  agree  with 
Commonwealth that  their  station  appears  to  have  an  overall 
history of compliance.  For this reason we reduce the  forfeiture 
amount to $5,500.

                       IV.  ORDERING CLAUSES

     11.  Accordingly, IT IS  ORDERED that,  pursuant to  Section 
503(b) of the Act,  and Sections 0.111,  0.311 and 1.80(f)(4)  of 
the Rules,14 Commonwealth License Subsidiary, LLC IS LIABLE FOR A 
MONETARY FORFEITURE in the amount  of five thousand five  hundred 
dollars ($5,500)  for  failure  to enclose  its  AM  transmission 
system for  Station KLMR(AM)  within effective  locked fences  or 
other enclosures in  willful violation  of Section  73.49 of  the 

     12.  Payment of the forfeiture shall  be made in the  manner 
provided for in Section 1.80 of  the Rules within 30 days of  the 
release of this Order.  If the forfeiture is not paid within  the 
period specified, the case may  be referred to the Department  of 
Justice for collection pursuant to  Section 504(a) of the  Act.15  
Payment shall be made by  mailing a check or similar  instrument, 
payable to the order of the Federal Communications Commission, to 
the Federal Communications Commission,  P.O. Box 73482,  Chicago, 
Illinois 60673-7482.   The  payment  should  note  NAL/Acct.  No. 
200232800004 and  FRN 0003-7484-98.   Requests for  full  payment 
under an installment plan should  be sent to: Chief, Revenue  and 
Receivables Operations Group, 445 12th Street, S.W.,  Washington, 
D.C. 20554.16

     13.  IT IS FURTHER ORDERED that, a copy of this Order  shall 
be  sent  by  Certified   Mail,  Return  Receipt  Requested,   to 
Commonwealth License Subsidiary,  LLC, 2550  Fifth Avenue,  Suite 
723, San Diego, CA 92103.


                         David H. Solomon
                         Chief, Enforcement Bureau

1 47 C.F.R.  73.49.
2 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200232800004 (Enf. Bur., Denver Office, released May 30, 2002).
3 The inspection was the result of the Denver Office's receipt of 
information on April 25, 2001 that one of KLMR(AM)'s radio towers 
had a light outage.
4 FCC OST/OET  Bulletin Number 65,  ``Evaluating Compliance  with 
FCC-Specified Guidelines for  Human Exposure  to Radio  Frequency 
Radiation (Supplement A).''
5 47 U.S.C.  503(b).
6 47 C.F.R.  1.80.
7 47 U.S.C.  503(b)(2)(D).
8 We need not reach Commonwealth's arguments regarding the height 
of the fences  since the entry gate  to the NE  #1 tower was  not 
9 Family Broadcasting Inc., 17 FCC Rcd 6180 (2002) (sustaining  a 
Summary Decision for violation of Section 73.49, but remanding on 
other grounds) (finding based on a fence that had an opening that 
permitted access to the  antenna); MAPA Broadcasting, L.L.C.,  16 
FCC Rcd 22403 (2001) (forfeiture assessed where fence surrounding 
the tower was  unlocked); Culpeper  Broadcasting Corporation,  15 
FCC Rcd 12594 (2000) (forfeiture assessed for failure to maintain 
effective locked fence where several boards were missing and  gap 
in fencing large enough to permit a person to climb through).
10 See  e.g., AT&T  Wireless Services,  Inc., 17  FCC Rcd  21866, 
21871 (2002);  Seawest  Yacht Brokers,  9  FCC Rcd  6099  (1994); 
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
11 The minimum distance depends on frequency and power.
12 The agent determined that the station had arranged for  repair 
of the light prior to his inspection and the FCC took no  further 
enforcement action.
13  State  associations,  including  the  Colorado   Broadcasters 
Association,  recently  signed  new  ABIP  agreements  with   the 
Enforcement Bureau.  The new agreements, effective on August  15, 
2003, likewise provide  that the FCC  may inspect  ABIP-certified 
stations if there has been a complaint concerning non-compliance.
14 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
15 47 U.S.C.  504(a).
16 See 47 C.F.R.  1.1914.