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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.