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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                            )                                
                                                                             
     In the Matter of                       )                                
                                                                             
     Christopher H. Bennett Broadcasting    )                                
     of Washington, Inc.                             File No.: EB-07-PO-052  
                                            )                                
     Licensee of AM Station KBMS                NAL/Acct. No.: 200732920003  
                                            )                                
     Vancouver, Washington                                  FRN: 0005021084  
                                            )                                
     Facility ID No. 11162                                                   
                                            )                                
                                                                             
                                            )                                


                                FORFEITURE ORDER

   Adopted: July 28, 2008 Released: July 30, 2008

   By the Regional Director, Western Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of five thousand, six hundred dollars ($5600) to
       Christopher H. Bennett Broadcasting of Washington, Inc. ("Bennett
       Broadcasting"), licensee of AM radio station KBMS in Vancouver,
       Washington, for repeatedly violating Section 73.1125(a) of the Rules.
       On May 22, 2007, the Enforcement Bureau's Portland Resident Agent
       Office issued a Notice of Apparent Liability for Forfeiture ("NAL") in
       the amount of $14,000 to Bennett Broadcasting for failing to enclose
       the KBMS antenna towers within effective locked fences or other
       enclosures, in violation of Section 73.49 of the Rules, and for
       failing to maintain an accessible main studio in its community of
       license, in violation of Section 73.1125(a) of the Rules. In this
       Order, we consider Bennett Broadcasting's arguments that the
       forfeiture should be cancelled because the KBMS antenna towers comply
       with Section 73.49; that Bennett Broadcasting did not willfully
       violate Section 73.1125(a) of the Rules, and that it has history of
       compliance with the Commission's Rules.

   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, at approximately 1:30
   p.m., the Portland agent arrived and surveyed the KBMS 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 the 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, at approximately 12:15 p.m., 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 the KBMS 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, at 1:40 p.m., and on April 20, 2007, at 2:00 p.m.,
   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.

   9. On May 22, 2007, the Portland Office issued a NAL in the amount of
   $14,000 to Bennett Broadcasting, finding that Bennett Broadcasting
   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. Bennett Broadcasting filed a response
   ("Response") on June 15, 2007, arguing that the forfeiture should be
   cancelled because the KBMS antenna towers comply with Section 73.49 of the
   Rules. Bennett Broadcasting also argues that it did not willfully violate
   Section 73.1125(a) of the Rules, and that it has a history of compliance
   with the Rules.

   III. DISCUSSION

   10. The proposed forfeiture amount in this case was assessed in accordance
   with Section 503(b) of the Act, Section 1.80 of the Rules, and The
   Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of
   the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture Policy
   Statement"). In examining Bennett Broadcasting'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.

   11. 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."

   12. Bennett Broadcasting argues that it complies with Section 73.49 of the
   Rules. Specifically, Bennett Broadcasting states that the three antenna
   structures were constructed in 1984, prior to ownership of the station by
   Bennett Broadcasting, and that they were constructed on "12 foot pier
   bases" because of their location in a flood plain area, and that the
   construction of the antenna structures on the piers meets the "other
   enclosures" requirement of Section 73.49. Upon further review of the
   evidence, and the Response, along with the totality of the circumstances
   presented, we agree and cancel the proposed $7,000 forfeiture to Bennett
   Broadcasting for violation of Section 73.49 of the Rules.

   13. 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
       between 10:00 a.m. and 4:00 p.m. 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.

   14. Bennett Broadcasting argues that it did not willfully violate Section
       73.1125(a) of the Rules. We note that the Portland Office proposed the
       forfeiture because Bennett Broadcasting apparently repeatedly violated
       Section 73.1125(a) of the Rules, not because Bennett Broadcasting
       willfully violated Section 73.1125(a) of the Rules. Bennett
       Broadcasting also argues that security is an issue for its station "as
       a result of 9/11" and that its takes "strong security measures in
       regards to public access to the Main Studio and Tower site which is in
       protective property (the agent experienced this)." Regardless of
       whatever security measures Bennett Broadcasting takes, the Commission
       requires that the main studio be accessible to the public. A locked
       gate during regular business hours, however porous, as argued by
       Bennett Broadcasting, does not fulfill the requirement of
       accessibility by the public.

   15. Bennett Broadcasting also argues that its "busy staff is not `tied to
       the studio' at all hours while serving the needs of the community" and
       states that the Portland agent "would had been greeted had he waited a
       little longer." The requirement regarding staffing of the main studio
       is clear: 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." The Portland agent visited the KBMS main studio four
       times during regular business hours. On March 23, 2007, he had an
       appointment with the station and found the main studio staffed. On
       March 26, 2007, April 19, 2007, and April 20, 2007, he returned,
       during regular business hours, with no appointment and found no staff
       at, and, consequently, no access to, the KMBS main studio.
       Consequently, we find that Bennett Broadcasting repeatedly violated
       Section 73.1125(a) of the Rules.

   16. We are particularly troubled with the fact that during the agent's
       initial attempt to inspect KMBS, he was told by a Bennett Broadcasting
       staffer that he would have to make an appointment. We caution Bennett
       Broadcasting that KBMS must be made available to Commission agents
       during the station's business hours, or at any time it is in
       operation, and that the KBMS main studio must be accessible to the
       public during regular business hours to ensure, among other reasons,
       that the public has access to the KBMS public inspection file. Failure
       to maintain such accessibility in the future may result in further
       enforcement proceedings.

   17. Bennett Broadcasting also argues that it has a history of compliance
   with the Commission's Rules. We have reviewed our records and we agree.
   Therefore, we reduce the proposed forfeiture for failing to maintain an
   accessible main studio in its community of license from $7,000 to $5,600. 
   We have examined the Response to the NAL pursuant to the statutory factors
   above, and in conjunction with the Forfeiture Policy Statement. As a
   result of our review, we conclude that Bennett Broadcasting repeatedly
   violated Section 73.1125(a)  of the Rules. Considering the entire record
   and the factors listed above, we find that reduction of the proposed
   forfeiture to $5,600 is warranted.

   IV. ORDERING CLAUSES

   18. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
   Communications Act of 1934, as amended ("Act"), and Sections 0.111, 0.311
   and 1.80(f)(4) of the Commission's Rules, Christopher H. Bennett
   Broadcasting of Washington, Inc., IS LIABLE FOR A MONETARY FORFEITURE in
   the amount of $5,600 for repeated violations of Section 73.1125(a) of the
   Rules.

   19. IT IS ORDERED that, pursuant to Section 503(b) of the Communications
   Act of 1934, as amended ("Act"), and Sections 0.111, 0.311 and 1.80(f)(4)
   of the Commission's Rules, that the proposed forfeiture in the amount of
   seven thousand dollars ($7,000) issued to Christopher H. Bennett
   Broadcasting of Washington, Inc., for repeated violations of Section 73.49
   of the Rules IS CANCELLED.

   20. 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. 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. 
   Christopher H. Bennett Broadcasting of Washington, Inc., shall also send
   electronic notification on the date said payment is made to
   WR-Response@fcc.gov.

   21. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
   Class Mail and Certified Mail Return Receipt Requested to Christopher H.
   Bennett Broadcasting of Washington, Inc., at its address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   47 C.F.R. S: 73.1125(a).

   47 C.F.R. S: 73.49.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732920003
   (Enf. Bur., Western Region, Portland Resident Agent Office, released May
   22, 2007).

   In its Response, Bennett Broadcasting disputes that it told the agent to
   make an appointment.

   The Portland agent also interviewed the neighbor, who told him that a key
   was left in the mailbox so that individuals who had permission could
   unlock the gate and access the property. The neighbor at this time gave
   the Portland agent permission to access the property by using the key in
   the mailbox to unlock the main gate.

   During this visit, the agent also observed that the front gate to the
   property was locked, prohibiting public access to the main studio. The
   Portland agent unlocked the main gate using the key kept in the mailbox,
   as described above.

   47 C.F.R. S: 73.49.

   47 U.S.C. S: 503(b).

   47 C.F.R. S: 1.80.

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

   47 U.S.C. S: 503(b)(2)(E).

   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, P:6 (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.

   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."

   Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
   clarified 7 FCC Rcd 6800 (1992).

   Id.

   47 C.F.R S: 73.1225(a).

   47 C.F.R S: 73.3526(b),(c).

   47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.49.

   47 U.S.C. S: 504(a).

   Federal Communications Commission DA 08-1755

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   Federal Communications Commission DA 08-1755