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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:


    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.


    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.


    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

    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.


    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: with any questions regarding payment procedures. 
       Brahmin Broadcasting Corporation shall also send electronic
       notification on the date said payment is made to

   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.


   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

   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



   Federal Communications Commission DA 08-2335