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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Albino Ortega and Maria Juarez ) File Number: EB-08-PO-0079
Licensee of AM Station KIGO ) NAL/Acct. No.: 200832920003
St. Anthony, Idaho ) FRN: 0011338407
Facility ID No. 22622 )
)
FORFEITURE ORDER
Adopted: July 15, 2009 Released: July 17, 2009
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 hundred dollars ($500) to Albino Ortega and Maria
Juarez, licensees of AM radio station KIGO in St. Anthony, Idaho, for
willful and repeated violations of Section 73.49 of the Commission's
Rules ("Rules"). On July 31, 2008, the Enforcement Bureau's Portland
Resident Agent Office issued a Notice of Apparent Liability for
Forfeiture ("NAL") in the amount of $7,000 to Ortega and Juarez for
failing to maintain an effective locked fence around KIGO's antenna.
Ortega and Juarez filed a response ("Response") on August 8, 2008. In
this Order, we consider Ortega and Juarez's arguments that the
violation occurred while they were in the process of upgrading the
KIGO transmitter equipment, and that the forfeiture should be reduced
because of Ortega and Juarez's inability to pay.
II. BACKGROUND
2. Ortega and Juarez have previously violated Section 73.49 of the Rules.
On September 27, 2006, the Portland Office issued a Notice of Apparent
Liability for Forfeiture in the amount of $7,000 to Ortega and Juarez
for apparent willful and repeated violation of Section 73.49 of the
Rules by failing to enclose the KIGO antenna tower within an effective
locked fence or other enclosures. Ortega and Juarez filed a response
on October 25, 2006, admitting the violation of Section 73.49,
providing evidence that an effective fence now enclosed the antenna
structure, and requesting that the forfeiture amount be reduced based
on their inability to pay. They also provided a statement of the
corrective action taken by sending photographs of the newly built
locked fence and the displayed ASR Number at the gate of the fence. On
May 4, 2007, the Western Region, Enforcement Bureau, ("Region") issued
a Forfeiture Order assessing a $500 forfeiture against Ortega and
Juarez for violation of Section 73.49 of the Rules. The Region reduced
the forfeiture amount proposed by the Portland Office based on Ortega
and Juarez's inability to pay, supported by three years of tax
returns. Ortega and Juarez later paid the $500 forfeiture.
3. On April 1, 2008, an agent from the Portland Office re-inspected
KIGO's antenna tower site in Rigby, Idaho, and found that the gate of
the base fence surrounding KIGO antenna tower was open. The agent also
observed that there was no protective property fence surrounding the
KIGO antenna site.
4. On April 2, 2008, the Portland returned to the KIGO antenna site and
again found that the gate of the base fence surrounding KIGO antenna
tower was open. The agent also observed that there was no protective
property fence surrounding the KIGO antenna site.
5. On July 31, 2008, the Portland Office issued a NAL in the amount of
$7,000 to Ortega and Juarez, finding that they apparently willfully
and repeatedly violated Section 73.49 of the Rules by failing to
maintain an effective locked fence around KIGO's antenna tower. In
their Response, Ortega and Juarez argue that the violations occurred
when they were upgrading their antenna transmitter equipment, and that
the forfeiture amount should be reduced because of their demonstrated
inability to pay. They also included a photograph of the closed,
locked gate to the fence and reported that the gate to the fence is
now locked and secure.
III. DISCUSSION
6. 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 Ortega and Juarez'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.
7. 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." The KIGO AM
antenna tower is series fed. On April 1 and April 2, 2008, the
Portland Office inspected the KIGO antenna tower site and found that
the gate of the base fence surrounding KIGO's antenna tower was open
and that there was no protective property fence at the site beyond the
base fence.
8. In its Response, Ortega and Juarez do not dispute that the KIGO tower
fence gate was open at the time of the inspections on April 1 and
April 2, 2008. Instead, Ortega and Juarez argue that they were in the
process of the upgrading the KIGO transmitter equipment and that the
Portland agent must have inspected while this upgrading was occurring.
While we do not doubt that Ortega and Juarez were upgrading their
equipment at the time of the two inspections, this does not eliminate
their responsibility to keep the gate closed and locked, especially in
an area with no other protective property fence. Therefore, we find no
merit to this argument.
9. Ortega and Juarez also ask that the forfeiture amount be reduced
because they are a small broadcaster with limited financial resources.
To support this claim, Ortega and Juarez supply their last three years
of tax records. Because Ortega and Juarez have corrected the
violation, and provided proof of their efforts, and are not involved
in a continuing violation of Section 73.49, we will consider this
claim. In analyzing a financial hardship claim, the Commission
generally has looked to gross revenues as a reasonable and appropriate
yardstick in determining whether a licensee is able to pay the
assessed forfeiture. While we find that Ortega and Juarez willfully
and repeatedly violated Section 73.49 of the Rules, based upon their
inability to pay, we conclude that pursuant to Section 503(b) of the
Act and the Forfeiture Policy Statement, reduction of the $7,000
forfeiture to $500 is warranted.
IV. ORDERING CLAUSES
10. 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, Albino Ortega and
Maria Juarez, ARE LIABLE FOR A MONETARY FORFEITURE in the amount of
$500 for willfully and repeatedly violating Section 73.49 of the
Rules.
11. 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.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Albino
Ortega and Maria Juarez, at their address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S:73.49.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832920003
(Enf. Bur., Western Region, Portland Resident Agent Office, released July
31, 2009).
47 C.F.R. S: 73.49.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632920003
(Enf. Bur., Western Region, Portland Resident Agent Office, released
September 27, 2006).
47 C.F.R. S: 73.49.
Albino Ortega and Maria Juarez, 22 FCC Rcd 8515 (EB 2007) ("Forfeiture
Order").
See 47 U.S.C. S: 504(c).
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").
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
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 09-1538
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Federal Communications Commission DA 09-1538