Federal Communications Commission - PDF document

1 Federal Communications Commission Befo
Federal Communications Commission Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Sandhill Media Group, LLC Licensee of AM Station KUPI Ammon, Idaho Facility ID No. 55238 47 C.F.R. § 73.49. 47 U.S.C. § 503(b). The base fence around antenna structure # 1042030 was effective. Federal Communications Commission inquire about the condition of the fencing surrounding the two KUPI-AM towers. On September 18, 2006, the KUPI-AM chief engineer responded via email to the Portland agent that all repairs to the fences were made on August 10, 2006. The chief engineer attached photographs of the fences to the email, to show the repairs that were made, and to show that a lock had been installed at the main gate of the perimeter fence.DISCUSSION Section 503(b) of the 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. The term "willful" as used in Section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly. The term “repeated” means the commission or omission of such act more than once or for more than one day.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 Individual tower fences need not be installed if the towers are contained within a protective property fence.Report and Order promulgating the most recent amendment of Section 73.49, the Commission stated that “a fencing requirement is necessary to protect At the time of the inspection on August 3, 2006, a perimeter fence existed around the KUPI-AM towers, but the gate to the perimeter fence was unlocked and open, therefore, the perimeter fence did not qualify as a protective property fence. Because

2 the perimeter fence was not effective,
the perimeter fence was not effective, the base fences around the individual AM towers must be effective.The KUPI-AM antenna towers are series fed and,three KUPI-AM towers must be enclosed within an effective locked fence or other enclosure. Only one of the three towers, however, was properly enclosed. The other two towers, antenna structure # 1042078 their fences missing, making both towers easily accessible to the general public. This is of particular concern, given that the KUPI-AM antenna site is adjacent to an industrial and commercial area. Twfencing or other enclosures for more than one day. Additionally, Sandhill’s failure to properly enclose an AM tower used by KUPI-AM occurred more than once. For these reasons, Sandhill’s violation is repeated. Based on the evidence before us, we find that Sandhill apparently repeatedly violated Section 73.49 of the Rules by failing to enclose two of the KUPI-AM antenna towers within effective locked fences Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that "[t]he term 'willful', when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act…." See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). Section 312(f)(2) of the Act, 47 U.S.C. § 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.” 47 C.F.R. § 73.49. 47 C.F.R. § 73.49. Review of the Technical an Operational Regulations of Part 73, Subpart

3 A, AM Broadcast Stations, 59 Rad. Reg.
A, AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, ¶6 (1986) (“Report and Order”). See Metropolitan Radio Group, 19 FCC Rcd 11846 (EB 2004). See Butterfield Broadcasting Corporation, 20 FCC Rcd 20237 (EB 2005). Federal Communications Commission or other enclosures. Pursuant to The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,Forfeiture Policy Statement"), and Section 1.80 of the Rules, the base amount for failure to maintain an effective AM tower fence is seven thousand dollars, In assessing the monetary forfeiture amount, we must also take into account the statutory factors set forth in Section 503(b)(2)(D) of the Act, which include the nature, circumstances, extent, and gravity of the violations, and with respect to the violator, the degree of culpability, and history of prior offenses, ability to pay, and other such matters as justice may require. Applying the Forfeiture Policy Statement1.80, and the statutory factors to the instant case, we conclude Sandhill is apparently liable for a seven thousand dollar ($7,000) forfeiture. ORDERING CLAUSES Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311 and 1.80 of the Commission's Rules, Sandhill 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.IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's Rules within thirty days of the release date of this Notice of Apparent Liability for Forfeiture, Sandhill, SHALL the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 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/Acct. No. and FRN No. referenced above. Payment by check or money order

4 may be mailed to Federal Communications
may be mailed to Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburg, PA 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911-6106. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Western Region, Portland Resident Agent Office, P.O. Box 61469, Vancouver, Washington 98666-1469 and must include the NAL/Acct. No. referenced in the caption. 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. Requests for payment of the full amount of this Notice of Apparent Liability for Forfeiture under an installment plan should be sent to: Associate Managing Director-Financial Operations, Room 1A625, 445 12 Street, S.W., Washington, D.C. 20554. 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. §1.80. 47 U.S.C. § 503(b)(2)(D). 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 73.49. 47 C.F.R. § 1.1914. Federal Communications Commission IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by Certified Mail, Return Receipt Requested, and regular mail, to Sandhill Media Group, LLC at its address of record. FEDERAL COMMUNICATIONS COMMISSION Binh Nguyen Resident Agent Portland Resident Agent Office Western Region Enforcement Bureau