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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Brahmin Broadcasting Corporation File Number: EB-07-DV-132
)
Licensee of Station KRAE-AM NAL/Acct. No.: 200732800006
)
Cheyenne, WY FRN: 0010593085
)
Facility ID # 35510
)
)
MEMORANDUM OPINION AND ORDER
Adopted: October 22, 2008 Released: October 24, 2008
By the Associate Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended ("Act"), and Section
1.106 of the Commission's rules, we deny a Petition for
Reconsideration ("Petition") filed on April 1, 2008, by Brahmin
Broadcasting Corporation ("Brahmin"), licensee of station KRAE, in
Cheyenne, Wyoming, of a Forfeiture Order issued by the Western Region
("Region") of the Enforcement Bureau, imposing a four thousand, two
hundred dollar ($4,200) monetary forfeiture against Brahmin for
repeated violation of Section 73.49 of the Commission's Rules
("Rules"). The noted violation concerned Brahmin's failure to enclose
the KRAE antenna tower within an effective locked fence or other
enclosure. For the reasons discussed below, we deny Brahmin's Petition
and affirm the forfeiture.
II. BACKGROUND
2. On March 6, 2007, agents from the Enforcement Bureau's Denver District
Office conducted an inspection of a structure located at approximately
41DEG 07' 26" north latitude and 104DEG 49' 12" west longitude in
Cheyenne, Wyoming. Close observation revealed that a single wooden
panel section of the base fence, approximately six feet in width, was
laying on the ground, and allowing access to the structure, a
series-fed antenna with an insulated base. The agents observed that
the structure resided in an open field located within a residential
area. A search of the Commission's database on-scene confirmed that
the structure was broadcasting the signal of KRAE, an AM station
licensed to Brahmin, in Cheyenne, Wyoming.
3. Later on March 6, 2007, the agents arrived at the KRAE studio and
issued a verbal warning regarding the base fence violation to the two
Brahmin employees present for the inspection. The agents interviewed
Brahmin's business manager and the chief engineer for KRAE. During the
interview, the engineer acknowledged that he had received a call on
February 20, 2007, regarding an issue with KRAE's base fence. The
engineer assumed that the caller, a former owner of the station, was
merely referring to a single vertical slat of the fence, which the
engineer recounts that he had repaired the week prior to the call,
when informing Brahmin of a "hole in the fence." The engineer admitted
on March 6, 2007, that he had yet to revisit the KRAE transmitter site
in order to assess the damage to the fence as of the date of the
agents' interview. The KRAE staff indicated to the agents that they
would immediately repair the fence. Brahmin confirms in the Response
to the NAL that the fence was repaired on March 6, 2007, and was
completely replaced in May of 2007.
4. On July 31, 2007, the Denver Office issued a NAL in the amount of
$7,000 to Brahmin, finding that Brahmin apparently repeatedly violated
Section 73.49 of the Rules by failing to enclose the KRAE antenna
tower within an effective locked fence or other enclosure. In its
Response, Brahmin requested a reduction of the proposed forfeiture
based on its good faith efforts to repair the fence surrounding the
KRAE antenna tower, and its history of compliance with the
Commission's Rules.
5. In the Forfeiture Order, issued March 3, 3008, the Region considered
Brahmin's Response and determined that Brahmin's efforts to repair the
KRAE antenna tower fence after the March 6, 2007, inspection by the
Denver agents did not support a good faith reduction, however,
Brahmin's efforts to repair the fence prior to the inspection did
support a good faith reduction. Consequently, the Region reduced the
forfeiture amount to $5,600. The Region also determined that Brahmin
had a history of compliance with the Commission's Rules, and further
reduced the forfeiture amount to $4,200.
III. DISCUSSION
6. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters. A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied. In its Petition, Brahmin asks
that the forfeiture be reconsidered because the Brahmin employee
responsible for the KRAE tower site underwent surgery around the same
time that the KRAE fence fell into disrepair on February 20, 2007.
This employee was recuperating until March 6, 2007, when the Denver
agent inspected the tower site and discovered the issues with the KRAE
fence. Brahmin argues that the Region did not take into account this
"exculpatory factor" and that "the totality of the circumstances in
the instant proceeding demonstrate that Brahmin does not bear
culpability for the 73.49 violation." We disagree.
7. Brahmin is the licensee of KRAE and as such is required to ensure that
the KRAE tower "be enclosed within effective locked fences or other
enclosures." Brahmin cannot avoid this responsibility when one of its
employees falls ill. The Commission has long held that licensees and
other Commission regulatees are responsible for the acts and omissions
of their employees and independent contractors, and has "consistently
refused to excuse licensees from forfeiture penalties where actions of
employees or independent contractors have resulted in violations." The
Brahmin employee's inability to work due to illness does not excuse
Brahmin's failure to maintain the KRAE tower fence, nor does it supply
sufficient exculpatory evidence to relieve Brahmin of liability for
the forfeiture. We find that the Region correctly reviewed and weighed
all of the evidence presented by Brahmin and correctly reduced the
proposed forfeiture amount because of Brahmin's prior good faith
efforts to secure the KRAE tower fence, and because of Brahmin's
history of compliance with the Commission's Rules. Upon review of the
evidence, and the totality of the circumstances involved, we find that
Brahmin is not entitled to further reductions or to a dismissal of the
forfeiture.
8. We have considered the arguments raised by Brahmin in its Petition and
find they are unpersuasive. Therefore, we deny Brahmin's Petition, and
affirm the Region's Forfeiture Order finding Brahmin liable for a
forfeiture in the amount of $4,200.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, Brahmin Broadcasting Corporation's Petition for
Reconsideration, filed April 1, 2008, IS DENIED, and the Region's
Forfeiture Order IS AFFIRMED.
10. Payment of the forfeiture ordered by the Region and affirmed by this
Memorandum Opinion and Order 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.
Brahmin Broadcasting Corporation shall also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
11. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Brahmin
Broadcasting Corporation, at its address of record, and Barry A.
Friedman, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
Brahmin Broadcasting Corporation, 23 FCC Rcd 3519 (EB 2008) ("Forfeiture
Order").
47 C.F.R. S: 73.49.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732800006
(Enf. Bur., Western Region, Denver Office, released July 31, 2007).
NAL at 1; Response Affidavit at 1.
47 C.F.R. S: 73.49.
Forfeiture Order at para. 7.
Forfeiture Order at para. 8.
See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., 15 FCC Rcd 18257 (EB
2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain
Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.
967 (1966).
EZ Sacramento, Inc., 15 FCC Rcd at 18257.
Petition at 3.
47 C.F.R. S: 73.49.
See Jerry Russell d/b/a The Russell Company, 22 FCC Rcd 9065 (EB 2007);
Claro Communications, LTD., 23 FCC Rcd 359 (EB 2008).
See Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863 - 64 (2002).
See American Paging, Inc. of Virginia, 12 FCC Rcd 10417, 10420 (Wireless
Bur., Enf. and Cons. Inf. Div., 1997) (quoting Triad Broadcasting Company,
Inc., 96 FCC 2d 1235 (1984)).
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-2335
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Federal Communications Commission DA 08-2335