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 File No.: EB-FIELDWR-12-00001355
)
Alaska Integrated Media, Inc. NAL/Acct. No.: 201232780002
)
Licensee of Station KOAN FRN: 0020201240
)
Anchorage, Alaska Facility ID No.: 53491
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 26, 2012 Released: July 27, 2012
By the Resident Agent, Anchorage Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Alaska Integrated Media, Inc. (Alaska Integrated),
licensee of AM Station KOAN (Station), in Anchorage, Alaska,
apparently willfully and repeatedly violated Section 73.49 of the
Commission's rules (Rules), by failing to enclose the Station KOAN
antenna tower (the Antenna Structure) within an effective locked fence
or other enclosure. We conclude that Alaska Integrated is apparently
liable for a forfeiture in the amount of seven thousand dollars
($7,000). In addition, we direct Alaska Integrated to submit, no later
than thirty (30) calendar days from the date of this NAL, a statement
signed under penalty of perjury stating that its Antenna Structure
complies with the Commission's fencing requirements.
II. BACKGROUND
2. On March 8, 2012, and again on March 15, 2012, agents from the
Enforcement Bureau's Anchorage Office (Anchorage Office) inspected
Station KOAN's AM antenna tower site located in Knik, Alaska. The
agents observed a wooden plank fence enclosing the base of the Antenna
Structure. However, the agents also observed that several of the wood
planks were missing, lying on the snow next to the bottom of the
fence, and the missing planks allowed ready access to the base of the
Antenna Structure. The agents further observed a residence within 500
feet and a public road within 300 feet of the Antenna Structure. In
addition, no perimeter fence impeded access to the Antenna Structure
site.
3. On March 22, 2012, the Anchorage agents visited the Station's main
studio and notified the Station's operations manager about the
deficiencies in the fence. The operations manager told the agents that
he was unaware that planks were missing from the fence but stated that
he would have someone go out and assess the situation.
III. DISCUSSION
4. Section 503(b) of the Communications Act of 1934, as amended (Act),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful. The term "repeated" means the commission or omission
of such act more than once or for more than one day.
A. Failure to Enclose the Antenna Structure Within an Effective Locked
Fence
5. Section 73.49 of the Rules states that "[a]ntenna towers having radio
frequency at the base . . . 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." On March 8,
2012, and again on March 15, 2012, Anchorage agents observed that wood
planks were missing from the fence enclosing the base of the Station's
Antenna Structure, thereby allowing access to its base. In addition,
the agents did not observe a perimeter fence surrounding the property.
Based on the evidence before us, we find that Alaska Integrated
apparently willfully and repeatedly violated section 73.49 of the
Rules by failing to enclose the Station's Antenna Structure within an
effective locked fence or other enclosure.
A. Proposed Forfeiture Amount and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to maintain
effective AM tower fencing is $7,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Alaska Integrated is apparently liable for a forfeiture in the
amount of seven thousand dollars ($7,000).
7. We further order Alaska Integrated to submit a written statement,
pursuant to Section 1.16 of the Rules, signed under penalty of perjury
by an officer or director of Alaska Integrated, stating that the
Station complies with the Commission's fencing rules and that its
antenna structure is enclosed within an effective locked fence or
other enclosure. This statement must be provided to the Anchorage
Resident Agent Office at the address listed in paragraph 10 within
thirty (30) calendar days of the release date of this NAL.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Alaska Integrated
Media, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of seven thousand dollars ($7,000) for
violation of Section 73.49 of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Alaska Integrated Media, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10. IT IS FURTHER ORDERED that Alaska Integrated Media, Inc. SHALL SUBMIT
a written statement, as described in paragraph 7, within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Anchorage Resident Agent Office, P.O. Box 231949, Anchorage, Alaska,
99523-1949. Alaska Integrated Media, Inc. shall also e-mail the
written statement to WR-Response@fcc.gov.
11. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Alaska Integrated Media, Inc. will also send
electronic notification on the date said payment is made to
WR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
12. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Anchorage Resident Agent Office, P.O. Box 231949, Anchorage,
Alaska, 99523-1949 and include the NAL/Acct. No. referenced in the
caption. Alaska Integrated Media, Inc. also shall email the written
response to WR-Response@fcc.gov.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail to Alaska Integrated Media,
Inc. at 4700 Business Park Boulevard, Suite 44-A, Anchorage, Alaska
99503.
FEDERAL COMMUNICATIONS COMMISSION
Marlene Windel
Resident Agent
Anchorage Resident Agent Office
Western Region
Enforcement Bureau
47 C.F.R. S: 73.49.
The main studio is located approximately 21.5 miles from the Station KOAN
AM tower structure.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S: 73.49.
Id.
Review of the Technical and Operational Regulations of Part 73, Subpart A,
AM Broadcast Stations, Report and Order, 59 Rad. Reg. 2d (Pike & Fischer)
927, para. 6 (1986) (Report and Order).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S:1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.49.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1186
5
Federal Communications Commission DA 12-1186