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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                                
                                                                          
     In the Matter of                    )                                
                                                                          
     The Evans Broadcast Company, Inc.   )    File Number: EB-08-SF-0284  
                                                                          
     Licensee of Station KCMY(AM)        )   NAL/Acct. No.: 200932960002  
                                                                          
     Carson City, Nevada                 )               FRN: 0011889250  
                                                                          
     Facility ID # 40801                 )                                
                                                                          
                                         )                                


                                FORFEITURE ORDER

   Adopted: November 18, 2009 Released: November 20, 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 three thousand, five hundred dollars ($3,500) to The
       Evans Broadcast Company, Inc. ("Evans"), licensee of station KCMY(AM),
       in Carson City, Nevada, for willful and repeated violation of Section
       73.49 of the Commission's Rules ("Rules"). On November 25, 2008, the
       Enforcement Bureau's San Francisco Office issued a Notice of Apparent
       Liability for Forfeiture ("NAL") in the amount of $5,600 to Evans for
       failing to enclose the KCMY(AM) antenna towers within an effective
       locked fence or other enclosure. Evans filed a response ("Response")
       on December 24, 2008. In this Order, we consider Evan's arguments that
       it made good faith efforts to comply with the Rules, and that it has a
       history of compliance with the Rules.

   II. BACKGROUND

    2. On June 10, 2008, an agent from the Enforcement Bureau's San Francisco
       Office inspected KCMY(AM)'s antenna tower site in Carson City, Nevada,
       and found that large portions of the wooden base fences surrounding
       each of the two KCMY(AM) antenna towers making up the KCMY(AM)
       two-tower array were laying on the ground. For one tower, half of the
       entire fence was laying on the ground. For the other tower, large
       portions, approximately eight to ten feet wide, were laying on the
       ground. The agent observed that there was no protective property fence
       surrounding the KCMY(AM) antenna site. The agent also observed that
       there was a bike path approximately 100 yards from the antenna site.

    3. On June 11, 2008, the San Francisco agent returned to the KCMY antenna
       site and again found that large segments of the base fences
       surrounding each of the two KCMY(AM) antenna towers were laying on the
       ground. The agent also observed that there was no protective property
       fence surrounding the KCMY(AM) antenna site. The agent then conducted
       an inspection of the KCMY(AM) main studio and interviewed KCMY(AM)
       management about the KCMY(AM) fences. The KCMY(AM) manager
       acknowledged that the fences had blown down two or three times in the
       past, most recently six or seven weeks earlier. The manager told the
       agent that the station had attempted to get the fences repaired, and
       produced a proposal for repairs, but said that the company proposing
       to do the work was waiting for the ground to dry so that their
       vehicles did not get stuck in the mud. The agent noted that there was
       no set date on the proposal for the repair of the fences. The agent
       warned the KCMY(AM) manager that some type of temporary fencing
       enclosure had to be erected with warning signs to keep the public from
       approaching the KCMY(AM) towers. Later that day, the San Francisco
       agent returned to the KCMY(AM) tower site and observed that orange,
       plastic temporary fencing had been installed around the two KCMY(AM)
       tower fences, along with warning signs.

    4. On November 25, 2008, the San Francisco Office issued a NAL in the
       amount of $5,600 to Evans, finding that Evans apparently willfully and
       repeatedly violated Section 73.49 of the Rules by failing to enclose
       the KCMY(AM) antenna towers within an effective locked fence or other
       enclosure, but that Evans had demonstrated a good faith effort to
       attempt to initiate repairs to the fence prior to the inspection by
       the FCC agent. In its Response, Evans argues that it made good faith
       efforts to comply with the Rules, that it promptly erected the
       temporary fence urged by the agent, that the stations gross revenues
       are marginal, and that it has a history of compliance with the Rules.

   III. DISCUSSION

    5. 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 Evan'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.

    6. 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. The KCMY(AM) antenna towers are series
       fed. 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."  On June 10,
       2008, and June 11, 2008, a San Francisco agent inspected the KCMY(AM)
       antenna tower site and found that, for both towers, the base fences
       surrounding those towers were missing large portions of the fences,
       and that there was no protective property fence at the site beyond the
       base fence. When asked by the San Francisco agent, a KCMY(AM) manger
       acknowledged that the fences had been blown down several weeks
       earlier, and that efforts had been made to contract with a company to
       repair them, but no repairs had been made because of the muddy ground
       near the fences.

    7. In its Response, Evans does not dispute that, at the time of the June
       10 and June 11, 2008, inspections, the KCMY(AM) towers were not
       enclosed within an effective fence or enclosure. Evans argues that the
       fence had blown down earlier in the year and that it had acted
       responsibly when on April 8, 2008, prior to the agent's inspection, it
       ordered repairs to be made. The repairs had not yet been made, at the
       time of the inspection, because the ground surrounding the fence was
       too wet to allow vehicle access. Evans also argues that at the agents'
       urging on June 11, 2008, it promptly erected temporary fencing around
       the two towers and posted warning signs. Consequently, Evans argues
       that the proposed forfeiture should be cancelled because of its good
       faith efforts to comply with the Rules, and its history of compliance
       with Rules.

    8. We note that the San Francisco Office, in consideration of Evans'
       pre-inspection efforts, proposed a reduced forfeiture in the NAL. In
       view of the inability of the station to effect the repairs (including
       setting cement for fence posts) for which it had contracted prior to
       the agents' inspection due to the wet ground, a factor outside Evans'
       control, we will apply an additional good faith reduction to the
       forfeiture. We decline, however, to cancel the forfeiture. The
       erection of temporary fencing at the urging of the FCC agent does not
       warrant any further reduction. While Evans asserts its gross revenues
       are marginal, it did not proffer any of the evidence required for
       consideration of an inability of pay argument. We have also reviewed
       our records and we have determined that Evans does have a history of
       compliance with the Rules. We therefore will reduce the forfeiture
       amount to $3,500.

    9. We have examined the Response to the NAL pursuant to the statutory
       factors above, and in conjunction with the Forfeiture Policy
       Statement. As a result of our review, we conclude that Evans willfully
       and repeatedly violated Section 73.49 of the Rules. Considering the
       entire record and the factors listed above, we find that reduction of
       the proposed forfeiture to $3,500 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, The Evans Broadcast
       Company, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of
       $3,500 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 The Evans
       Broadcast Company, Inc., at its address of record, and its counsel of
       record, Aaron P. Shainis, 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. 200932960002
   (Enf. Bur., Western Region, San Francisco Office, released November 25,
   2008).

   47 C.F.R. S: 73.49.

   Pursuant to Section 1.80 of the Rules, 47 C.F.R. S: 1.80, the base
   forfeiture amount for violating the AM tower fencing rule is $7,000. The
   San Francisco Office reduced the base forfeiture amount, pursuant to the
   downward adjustment criteria in Section 1.80, based on its assessment that
   Evans had engaged in good faith efforts prior to the agent's inspection.

   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.

   Review of the Technical and Operational Regulations of Part 73, Subpart A,
   AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, P:6 (1986)
   ("Report and Order").

   We note that addressing violations of the Rules post-inspection does not
   provide a basis for a downward adjustment in the proposed forfeiture. The
   Commission has stated in the past that a licensee is expected to correct
   errors when they are brought to the licensee's attention and that such
   correction is not grounds for a downward adjustment in the forfeiture.
   AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002); see also
   Rama Communications, Inc., 23 FCC Rcd 18209, 18211 (EB 2008) ("[W]here
   lapses in compliance occur, neither the negligent acts nor omissions of
   station employees or agents, nor the subsequent remedial actions
   undertaken by the licensee, excuse or nullify the licensee's rule
   violation").

   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 09-2442

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   Federal Communications Commission DA 09-2442