******************************************************** 
                      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                   )                               
                                                                        
     Greeley Broadcasting Corporation   )   File Number: EB-08-DV-0082  
                                                                        
     Licensee of Station KGRE-AM        )   NAL/Acct. No. 200832800005  
                                                                        
     Greeley, Colorado                  )              FRN: 0005078597  
                                                                        
     Facility ID # 33821                )                               
                                                                        
                                        )                               


                                     ORDER

   Adopted: July 21, 2009 Released: July 23, 2009

   By the Regional Director, Western Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Order ("Order"), we cancel a $7,000 forfeiture proposed
       against Greeley Broadcasting Corporation ("Greeley"), licensee of
       station KGRE-AM in Greeley, Colorado, and admonish Greeley for
       violation of Section 73.49 of the Commission's Rules ("Rules"). On
       July 29, 2008, the Enforcement Bureau's Denver Office issued a Notice
       of Apparent Liability for Forfeiture ("NAL") in the amount of $7,000
       to Greeley for failing to enclose the KGRE-AM antenna tower within an
       effective locked fence or other enclosure. Greeley filed a response
       ("Response") on August 28, 2008. In this Order, we consider Greeley's
       arguments that the violation was minor, was immediately corrected, was
       not repeated, and that the forfeiture amount should be reduced based
       on Greeley's history of compliance with the Commission's Rules, and
       its inability to pay the forfeiture.

   II. BACKGROUND

    2. On March 14, 2008, at 3:15 p.m., agents from the Enforcement Bureau's
       Denver Office conducted an inspection of an AM broadcast tower located
       at approximately 40DEG 26' 15" north latitude and 104DEG 43' 27" west
       longitude in Greeley, Colorado. Close observation revealed that the
       lock to the gate for the fenced enclosure was not engaged. The agents
       found the lock stuck in the open position and were unable to close it.
       As a result the agents were able to gain access to the structure, a
       series-fed antenna with an insulated base. The agents observed that
       there were residences within 250 yards of the tower and there was no
       perimeter fencing erected around the property to keep the public from
       approaching the structure. A search of the Commission's database
       on-scene indicated that KGRE-AM, licensed to Greeley Broadcasting, was
       broadcasting from the structure.

    3. Upon completion of the site inspection the Denver agents traveled to
       the KGRE-AM main studio in Greeley, Colorado. When they arrived at the
       studio at approximately 4:20 p.m., an oral warning was issued
       regarding the base fencing violation to the staff member present. The
       staffer then contacted the president of Greeley Broadcasting by phone
       to talk with the agents. The agents conducted a telephone interview
       with the executive, again issuing an oral warning for the non-secured
       base fence. During the interview, the executive acknowledged that the
       condition of the lock was a serious safety issue and he agreed to
       remedy the situation immediately and to contact the agent as soon as
       the repairs were completed.  Later that day, at approximately 6:15
       p.m., the executive notified the Denver agents, by cellular telephone
       call, that the lock on the tower fence had been replaced.

    4. On March 17, 2008, a Denver agent contacted the Greeley Broadcasting
       executive to obtain more information about recent access to the
       transmitter location. The executive admitted that he was unable to
       close the existing lock when he arrived at the transmitter site on
       March 14, 2008, to replace the device. When asked about recent site
       activity, the owner responded that he could not recall the date of his
       last visit to the site, but that he typically went there once a month
       to do work inside the building. On these occasions, he did not enter
       the fenced-in area around the tower base. Upon request, the owner
       provided the agent with the name of the engineers who had conducted
       work for the station on a contract basis.

    5. On March 18, 2008, a Denver agent traveled to the KGRE-AM tower site
       and verified that the lock had been replaced with a functioning
       device.

    6. On March 21, 2008, a Denver agent contacted all three engineers whose
       names had been provided by Greeley Broadcasting. Two of the engineers
       claimed they had not been to the site in three months or longer. The
       third engineer stated that he had been to the site approximately one
       week prior to the Denver agents' inspection on March 14, 2008. As with
       the two other contract engineers, this third engineer could not recall
       the last time he had entered the fenced enclosure.

    7. On July 29, 2008, the Denver Office issued a NAL in the amount of
       $7,000 to Greeley, finding that Greeley apparently willfully and
       repeatedly violated Section 73.49 of the Rules by failing to enclose
       the KGRE-AM antenna tower within an effective locked fence or other
       enclosure. In its Response, Greeley argues that the violation was
       minor in nature, that it was immediately corrected, that it was not
       repeated, and that the forfeiture amount should be reduced based on
       Greeley's history of compliance with the Rules, as well as it
       inability to pay the forfeiture.

   III. DISCUSSION

    8. 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 Greeley'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.

    9. 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." KGRE-AM
       broadcasts from a series-fed tower with an insulated base and,
       pursuant to Section 73.49, must be enclosed with an effective locked
       fence or other enclosure. The KGRE-AM tower is located adjacent to
       residential development and there is no other perimeter fencing to
       keep the public from approaching the structure. With no perimeter
       fence, the base fence around the individual AM tower must be
       effective. At the time of the March 14, 2008, inspection, the lock to
       the gated, fenced enclosure surrounding the KGRE-AM tower was found
       stuck in the unlocked position and the agents were unable to close it.
       An executive of Greeley Broadcasting admitted to experiencing the same
       difficulty when he inspected the lock later that day. With no working
       lock on the gate, the agents were able to easily access the base of
       the KGRE-AM tower, therefore, the fence surrounding the KGRE-AM tower
       was ineffective. Interviews conducted by the Denver agents indicated
       that no station employee or contractor had been to the KGRE-AM tower
       site for at least a week prior to the Denver agents' inspection, and
       of those that had visited KGRE-AM tower site in the last few months,
       none acknowledged checking the lock or the gate at the site.

   10. In its Response, Greeley does not dispute that, at the time of the
       March 14, 2008, inspection, the KGRE-AM tower fence gate was unlocked
       and could not be closed. Greeley argues, however, that the open and
       unlocked gate was a minor violation of Section 73.49 of the Rules,
       when compared to other violations of Section 73.49 where an AM tower
       was enclosed by no fence at all, or the fence was a wooden structure
       with missing boards and in generally poor condition. Greeley also
       argues that as soon as it learned of the unlocked gate, it took
       immediate steps to rectify the problem. Further, Greeley argues that
       there is no evidence that the violation was repeated or that it
       occurred for more than a three hour period. Finally, Greeley argues it
       has an overall history of compliance with the Commission's Rules,
       having operated KRGE-AM for eleven years with no other violations.

   11. We disagree with Greeley that the violation was minor. As noted above,
       the harm that Section 73.49 was enacted to prevent is access by the
       general public to antenna towers with radio frequency potential at the
       base. With a tower easily accessible from a residential area, such as
       the KGRE-AM tower, a locked gate is imperative to ensure protection
       from that type of harm. However, we agree with Greeley that the
       evidence does not conclusively demonstrate that the duration of the
       violation was more than three hours in length. Given this fact, along
       with Greeley's history of compliance with the Rules, we find that the
       circumstances surrounding and the nature and the extent of Greeley's
       violation justifies cancellation of the NAL. However, we admonish
       Greeley for its violation of Section 73.49 of the Rules.

   IV. ORDERING CLAUSES

   12. 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, that the proposed
       forfeiture in the amount of seven thousand dollars ($7,000) issued to
       Greeley Broadcasting Corporation, in the July 29, 2008, Notice of
       Apparent Liability for willful and repeated violations of Section
       73.49 of the Rules IS CANCELLED.

   13. IT IS FURTHER ORDERED that Greeley Broadcasting Corporation, IS
       ADMONISHED for its violation of Section 73.49 of the Rules.

   14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to Greeley
       Broadcasting Corporation, at its address of record, and its counsel of
       record, A. Wray Fitch III, Esquire.

   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. 200832800005
   (Enf. Bur., Western Region, Denver Office, released July 29, 2008).

   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 Butterfield Broadcasting Corporation, 20 FCC Rcd 20237 (EB 2005).

   In its Response, Greeley notes that KGRE-AM "voluntarily participates in
   the FCC's self inspection program and passed its most recent inspection in
   2007." We note that the Denver Office's investigation was limited to the
   tower safety issues raised by the unlocked fence gate, and that nothing in
   the NAL concerned any other alleged violations by Greeley of the
   Commission's Rules.

   Albino Ortega and Maria Juarez, 22 FCC Rcd 8515 (EB 2007).

   Radio Plus, Inc., 23 FCC Rcd 10334 (EB 2008).

   Greeley was notified of the violation by the Denver agents at 3:15 p.m. on
   March 14, 2008, and reported back to the agents by 6:15 p.m. that day that
   a new lock had been installed.

   See Anastos Media Group, Inc.18 FCC Rcd 8573 (EB 2003); Kaspar
   Broadcasting Company, 19 FCC Rcd 4719 (EB 2004).

   Because we are cancelling the NAL, we do not reach Greeley's argument that
   it is unable to pay the proposed forfeiture.

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

   47 C.F.R. S: 73.49.

   Federal Communications Commission DA 09-1568

   1

   2

   Federal Communications Commission DA 09-1568