Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   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

   2

   2

   Federal Communications Commission DA 09-1538