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

In the matter of                 )
Radio Bonners Ferry, Inc.        )    FILE Number EB-02-ST-197
Licensee of  AM Radio Station    )    NAL/Acct. No. 200332980001
KBFI,                            )    Frn 0007741952
Bonners Ferry, Idaho             )

                        FORFEITURE ORDER

   Adopted:  March 17, 2004             Released:  March 19, 2004

By the Chief, Enforcement Bureau:

                    I.   INTRODUCTION

1.   In this Forfeiture Order (``Order''), we issue a monetary 
  forfeiture in the amount of  five thousand, six hundred 
  dollars ($5,600), to Radio Bonners Ferry, Inc. (``Bonners 
  Ferry''), licensee of Station KBFI(AM), Bonners Ferry Idaho, 
  for willful violation of  Section 73.49 of the Commission's 
  Rules.1  The noted rule violation involves Bonners Ferry's 
  failure to keep KBFI's antenna structure enclosed within an 
  effective locked fence or other enclosure.
2.   On October 2, 2002, the Commission's Seattle Washington's 
  Resident Agent Office (``Seattle Office'') issued a Notice of 
  Apparent Liability (``NAL'') in the amount of seven thousand 
  dollars ($7,000) to Bonners Ferry.  Bonners Ferry filed a 
  response on November 8, 2002 and supplemented its response on 
  November 12, 2002.
                    II.   BACKGROUND    

3.   On May 21, 2002, Commission agents from the Seattle Field 
  Office inspected the KBFI antenna site and observed that the 
  fencing around the antenna structure was leaning and the gate 
  could not be closed or locked.  On October 2, 2002, the 
  Seattle office issued an NAL for the failure to have an 
  effective locked fence around KBFI's antenna structure.  On 
  November 8, 2002, Bonners Ferry submitted a response to the 
  NAL, requesting a substantial reduction or cancellation of the 
  forfeiture, citing an inability to pay, Bonners Ferry's 
  compliance history, remedial measures undertaken, and the 
  physical location and seasonal ground conditions in the 
  immediate area of the antenna structure.

                    III.      DISCUSSION

4.   The proposed forfeiture amount in this case was assessed in 
  accordance with Section 503(b) of the Communications Act of 
  1934, as amended (``Act''),2 Section 1.80 of the Rules,3 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 Bonners Ferry'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.4
5.   Section 73.49 of the Rules provides that antenna towers 
  having radio frequency potential at the base must be enclosed 
  within effective locked fences or other enclosures. The 
  agents' May 21, 2002, observations were that AM Station KBFI 
  has a series fed radio frequency potential at the base of its 
  antenna tower, thereby requiring an effective locked fence or 
  other enclosure.  The agents also observed that the gate was 
  incapable of being either closed or locked as required by 
  Section 73.49.  Bonners Ferry admits the cited fence was 
  deficient, resulting in its replacement rather than mere 
  repair.  Bonners Ferry argues that a combination of factors 
  render it not liable for the imposition of a forfeiture.  
  Bonners Ferry cites the physical factors of the structure's 
  remote, rural setting; the inaccessibility of the site due to 
  the road closure from frost heaves, the location of cultivated 
  fields on three sides of the structure, and a rail road track 
  on the fourth side as mitigating factors.  We disagree.  The 
  Rule requires an effective locked fence, which Bonners Ferry 
  admittedly did not have.  Moreover, it is undisputed that the 
  agents were able to reach the location by road, and upon 
  reaching the site found the antenna structure readily 
  accessible, not behind the required effective locked fence. We 
  find the fact that the Commission agents were able to reach 
  the structure means that the structure was accessible at the 
  time the violation was observed by the agents. We therefore 
  need not further consider the factors cited by Bonners Ferry, 
  as these factors reference previous circumstances, not the 
  location as it existed at the time of the inspection.  We find 
  that Bonners Ferry's failure to have an effective locked fence 
  around the antenna structure for Station KBFI to be a willful 
  violation of Section 73.49 of the Rules based on the then 
  existing conditions (frost heaves had already occurred), as 
  the roads were open, and thus, accessible.5  Bonners Ferry 
  should have inspected the fence after the roads were reopened, 
  but it failed to do so.
6.   Bonners Ferry requests a substantial reduction or 
  cancellation of the proposed forfeiture because it took 
  immediate measures to remedy the violation noted by the NAL.  
  The Commission has repeatedly stated that remedial actions 
  taken to correct a violation are expected and as such are not 
  mitigating factors warranting reduction of a forfeiture.6  
  Additionally, Bonners Ferry submits copies of its financial 
  statements for fiscal year 1999, 2000 and 2001 in support for 
  its claim of inability to pay the proposed forfeiture amount.  
  We note that Bonners Ferry supplemented its response with a 
  declaration which included the statement that Station KBFI is 
  part of and has generated a percentage of revenue of Blue Sky 
  Broadcasting.  We must look to the totality of the 
  circumstances surrounding Bonners Ferry's ability to pay the 
  forfeiture.  The parent company's ability to pay, therefore, 
  is relevant in evaluating the subsidiary company's ability to 
  pay the forfeiture.7  Because Bonners Ferry has not provided 
  sufficient information from which we can evaluate the 
  financial condition of its parent company, we must reject its 
  inability to pay claim.  Finally, Bonners Ferry submits its 
  claim of an overall history of compliance with the 
  Commission's Rules as a mitigating circumstance warranting a 
  reduction in its forfeiture amount.  We agree that the 
  compliance record of both Bonners Ferry and its parent 
  company, Blue Sky Broadcasting is a mitigating circumstance.
7.   We have examined Bonners Ferry's response to the NAL 
  pursuant to the statutory factors above, and in conjunction 
  with the Policy Statement as well.   As a result of our 
  review, we conclude that Radio Bonners Ferry willfully 
  violated Section 73.49 of the Rules and find that cancellation 
  of the proposed monetary forfeiture is not warranted.  
  However, we find that reduction of the proposed forfeiture is 
  warranted because of the compliance record of both Bonners 
  Ferry and its parent company, Blue Sky Broadcasting with the 
  Commission's Rules.  Accordingly, the forfeiture amount is 
  reduced from seven thousand dollars ($7,000) to five thousand, 
  six hundred dollars ($5,600).
                    IV.  ORDERING CLAUSES

8.   Accordingly, IT IS ORDERED that, pursuant to Section 503(b) 
  of the Act and sections 0.111, 0.311 and 1.80(f) of the 
  Rules,8 Radio Bonners Ferry IS LIABLE FOR A MONETARY 
  FORFEITURE in the amount of five thousand, six hundred dollars 
  ($5,600) for willfully violating Section 73.49 of the Rules.
9.   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.9  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. 200332980001, and FRN 
  0007741952.  Requests for full payment under an installment 
  plan should be sent to: Chief, Revenue and Receivable Group, 
  445 12th Street, S.W., Washington, D.C. 20554.10
10.  IT IS FURTHER ORDERED that, a copy of this Order shall be 
  sent by Certified Mail, Return Receipt Requested, and by First 
  Class mail to Radio Bonners Ferry, Inc., c/o Kim Benefield, 
  Blue Sky Broadcasting, Inc., 327 Marion Avenue, Sandpoint, ID 
  83864, and a copy to its counsel, Ellen Mandell Edmundson, 
  Esquire, Edmundson & Edmundson, 1818 N Street, N.W., Suite 
  700, Washington, D.C. 20036.
                              FEDERAL COMMUNICATIONS COMMISSON

                              David H. Solomon
Chief, Enforcement Bureau


1 47 C.F.R.  73.49
2 47 U.S.C.  503(b).
3 47 C.F.R.  1.80.
4 47 U.S.C.  503(b)(2)(D).
5 Section 312(f)(1) of  the Act, 47 U.S.C.   312 (f) (1),  which 
applies to violations  for which forfeitures  are assessed  under 
Section 503(b) of  the Act, provides  that ``the term  `willful,' 
... 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).
6 See, e.g.,  AT7T 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).
7 See, e.g., Forfeiture  Policy Statement at  17158,  113.   See 
KASA Radio Hogar, Inc., 17 FCC Rcd 6256 (2002).
8 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
9 47 U.S.C.  504(a).
10 See 47 C.F.R.  1.1914.