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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Christopher H. Bennett Broadcasting )
of Washington, Inc. File No.: EB-07-PO-052
)
Licensee of AM Station KBMS NAL/Acct. No.: 200732920003
)
Vancouver, Washington FRN: 0005021084
)
Facility ID No. 11162
)
)
FORFEITURE ORDER
Adopted: July 28, 2008 Released: July 30, 2008
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 thousand, six hundred dollars ($5600) to
Christopher H. Bennett Broadcasting of Washington, Inc. ("Bennett
Broadcasting"), licensee of AM radio station KBMS in Vancouver,
Washington, for repeatedly violating Section 73.1125(a) of the Rules.
On May 22, 2007, the Enforcement Bureau's Portland Resident Agent
Office issued a Notice of Apparent Liability for Forfeiture ("NAL") in
the amount of $14,000 to Bennett Broadcasting for failing to enclose
the KBMS antenna towers within effective locked fences or other
enclosures, in violation of Section 73.49 of the Rules, and for
failing to maintain an accessible main studio in its community of
license, in violation of Section 73.1125(a) of the Rules. In this
Order, we consider Bennett Broadcasting's arguments that the
forfeiture should be cancelled because the KBMS antenna towers comply
with Section 73.49; that Bennett Broadcasting did not willfully
violate Section 73.1125(a) of the Rules, and that it has history of
compliance with the Commission's Rules.
II. BACKGROUND
2. On March 21, 2007, an agent from the Enforcement Bureau's Portland
Resident Agent Office contacted KBMS to conduct an inspection. The
Portland agent was advised by a KBMS representative that the
inspection could be made only by appointment. The agent left his
contact telephone number and waited for a return call from the KBMS
licensee.
3. On March 22, 2007, the agent was contacted by the owner of Bennett
Broadcasting, who advised the agent to make an inspection appointment with
his local station manager. The agent was then advised by the KBMS station
manger that the appointment was set up for 10:00 a.m. the next day, at the
combined KBMS transmitter and main studio located at 11197 N. Portland
Road, Portland, Oregon. Later on March 22, 2007, at approximately 1:30
p.m., the Portland agent arrived and surveyed the KBMS main studio at the
given address of 11197 N. Portland Road. The agent observed a locked gate
preventing access to the main road leading to the KBMS main studio. On the
middle of the gate was a yellow "No Trespassing" warning sign posted.
4. On March 23, 2007, the Portland agent inspected the KBMS main studio.
The agent asked the KBMS station manager why there was a locked gate in
front of the road leading to the KBMS main studio, and the station manager
replied that the individual who owned a residence next to the KBMS main
studio and transmitter site wanted the locked gate installed to prevent
the public from having access to his property.
5. Later on March 23, 2007, the Portland agent inspected the antenna
towers used by Bennett Broadcasting to broadcast KBMS. KBMS is a
directional AM station, which uses three antenna towers to broadcast its
signal: antenna structure #1034715; antenna structure #1034716; and
antenna structure #1034717. According to its license, the KBMS antenna
towers are series fed and, therefore, required to be fenced. Upon
inspection of the KBMS antenna towers, the agent found that there were no
effective locked fences or other barriers surrounding the bases of the
antenna structures. The agent noted that there was no perimeter fence
surrounding the entire KBMS-AM antenna site and that there was a residence
approximately 300 yards from KBMS antenna site. The agent also noted that
there were no radio frequency hazard warning signs posted near the bases
of the towers.
6. On March 26, 2007, at approximately 12:15 p.m., the Portland agent
returned to the KBMS main studio and transmitter site and he observed that
KBMS did not have any locked fences surrounding the bases of the antenna
towers. The agent also noted that the front door of the KBMS main studio
was locked, and that there was no staff in the main studio.
7. On April 5, 2007, Bennett Broadcasting provided a written statement
indicating that due to local zoning restrictions, the KBMS antenna towers
were built in 1984 on tall concrete piers without the required AM fencing.
8. On April 19, 2007, at 1:40 p.m., and on April 20, 2007, at 2:00 p.m.,
the Portland agent returned to the KBMS transmitter site and observed that
KBMS still did not have any fences surrounding the bases of the antenna
towers. The agent also noted that the front door of the KBMS main studio
was locked, and that there was no staff in the main studio.
9. On May 22, 2007, the Portland Office issued a NAL in the amount of
$14,000 to Bennett Broadcasting, finding that Bennett Broadcasting
apparently repeatedly violated Section 73.49 of the Commission's Rules
("Rules") by failing to enclose the KBMS antenna towers within effective
locked fences or other enclosures and apparently repeatedly violated
Section 73.1125(a) of the Rules by failing to maintain an accessible main
studio in its community of license. Bennett Broadcasting filed a response
("Response") on June 15, 2007, arguing that the forfeiture should be
cancelled because the KBMS antenna towers comply with Section 73.49 of the
Rules. Bennett Broadcasting also argues that it did not willfully violate
Section 73.1125(a) of the Rules, and that it has a history of compliance
with the Rules.
III. DISCUSSION
10. 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 Bennett Broadcasting'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.
11. 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."
12. Bennett Broadcasting argues that it complies with Section 73.49 of the
Rules. Specifically, Bennett Broadcasting states that the three antenna
structures were constructed in 1984, prior to ownership of the station by
Bennett Broadcasting, and that they were constructed on "12 foot pier
bases" because of their location in a flood plain area, and that the
construction of the antenna structures on the piers meets the "other
enclosures" requirement of Section 73.49. Upon further review of the
evidence, and the Response, along with the totality of the circumstances
presented, we agree and cancel the proposed $7,000 forfeiture to Bennett
Broadcasting for violation of Section 73.49 of the Rules.
13. Section 73.1125(a) of the Rules requires the licensee of a broadcast
station to maintain a main studio at one of the following locations:
(1) within the station's community of license; (2) at any location
within the principal community contour of any AM, FM or TV broadcast
station licensed to the station's community of license; or (3) within
twenty-five miles from the reference coordinates of the center of its
community of licensed as described in Section 73.208(a)(1). In
addition, the station's main studio must serve the needs and interests
of the residents of the station's community of license. To fulfill
this function, a station must, among other things, maintain a
meaningful managerial staff presence at its main studio. The
Commission has defined a minimally acceptable "meaningful presence" as
full-time managerial and full-time staff personnel. In addition, there
must be "management and staff presence" on a full-time basis during
normal business hours to be considered "meaningful." Although
management personnel need not be "chained to their desks" during
normal business hours, they must "report to work at the main studio on
daily basis, spend a substantial amount of time there and ... use the
studio as a home base." The Portland agent's inspections conducted
between 10:00 a.m. and 4:00 p.m. on March 23, 2007, March 26, 2007,
April 19, 2007, and April 20, 2007, revealed that the site held out by
Bennett Broadcasting as the main studio location for KBMS had no
public access due to the locked gate and the "No Trespassing" warning
sign. Other than the day of the appointment that the Portland agent
made to inspect the KBMS main studio, the agent found no staff
presence at the KBMS main studio.
14. Bennett Broadcasting argues that it did not willfully violate Section
73.1125(a) of the Rules. We note that the Portland Office proposed the
forfeiture because Bennett Broadcasting apparently repeatedly violated
Section 73.1125(a) of the Rules, not because Bennett Broadcasting
willfully violated Section 73.1125(a) of the Rules. Bennett
Broadcasting also argues that security is an issue for its station "as
a result of 9/11" and that its takes "strong security measures in
regards to public access to the Main Studio and Tower site which is in
protective property (the agent experienced this)." Regardless of
whatever security measures Bennett Broadcasting takes, the Commission
requires that the main studio be accessible to the public. A locked
gate during regular business hours, however porous, as argued by
Bennett Broadcasting, does not fulfill the requirement of
accessibility by the public.
15. Bennett Broadcasting also argues that its "busy staff is not `tied to
the studio' at all hours while serving the needs of the community" and
states that the Portland agent "would had been greeted had he waited a
little longer." The requirement regarding staffing of the main studio
is clear: the Commission has defined a minimally acceptable
"meaningful presence" as full-time managerial and full-time staff
personnel. In addition, there must be "management and staff presence"
on a full-time basis during normal business hours to be considered
"meaningful." The Portland agent visited the KBMS main studio four
times during regular business hours. On March 23, 2007, he had an
appointment with the station and found the main studio staffed. On
March 26, 2007, April 19, 2007, and April 20, 2007, he returned,
during regular business hours, with no appointment and found no staff
at, and, consequently, no access to, the KMBS main studio.
Consequently, we find that Bennett Broadcasting repeatedly violated
Section 73.1125(a) of the Rules.
16. We are particularly troubled with the fact that during the agent's
initial attempt to inspect KMBS, he was told by a Bennett Broadcasting
staffer that he would have to make an appointment. We caution Bennett
Broadcasting that KBMS must be made available to Commission agents
during the station's business hours, or at any time it is in
operation, and that the KBMS main studio must be accessible to the
public during regular business hours to ensure, among other reasons,
that the public has access to the KBMS public inspection file. Failure
to maintain such accessibility in the future may result in further
enforcement proceedings.
17. Bennett Broadcasting also argues that it has a history of compliance
with the Commission's Rules. We have reviewed our records and we agree.
Therefore, we reduce the proposed forfeiture for failing to maintain an
accessible main studio in its community of license from $7,000 to $5,600.
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 Bennett Broadcasting repeatedly
violated Section 73.1125(a) of the Rules. Considering the entire record
and the factors listed above, we find that reduction of the proposed
forfeiture to $5,600 is warranted.
IV. ORDERING CLAUSES
18. 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, Christopher H. Bennett
Broadcasting of Washington, Inc., IS LIABLE FOR A MONETARY FORFEITURE in
the amount of $5,600 for repeated violations of Section 73.1125(a) of the
Rules.
19. 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 Christopher H. Bennett
Broadcasting of Washington, Inc., for repeated violations of Section 73.49
of the Rules IS CANCELLED.
20. 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.
Christopher H. Bennett Broadcasting of Washington, Inc., shall also send
electronic notification on the date said payment is made to
WR-Response@fcc.gov.
21. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Christopher H.
Bennett Broadcasting of Washington, Inc., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S: 73.1125(a).
47 C.F.R. S: 73.49.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732920003
(Enf. Bur., Western Region, Portland Resident Agent Office, released May
22, 2007).
In its Response, Bennett Broadcasting disputes that it told the agent to
make an appointment.
The Portland agent also interviewed the neighbor, who told him that a key
was left in the mailbox so that individuals who had permission could
unlock the gate and access the property. The neighbor at this time gave
the Portland agent permission to access the property by using the key in
the mailbox to unlock the main gate.
During this visit, the agent also observed that the front gate to the
property was locked, prohibiting public access to the main studio. The
Portland agent unlocked the main gate using the key kept in the mailbox,
as described above.
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").
47 C.F.R. S: 73.208(a)(1).
See Main Studio and Program Origination Rules, 2 FCC Rcd 3215, 3217-18
(1987), clarified 3 FCC Rcd 5024, 5026 (1988).
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified 7 FCC Rcd 6800 (1992).
Id.
7 FCC Rcd at 6802.
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."
Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified 7 FCC Rcd 6800 (1992).
Id.
47 C.F.R S: 73.1225(a).
47 C.F.R S: 73.3526(b),(c).
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 08-1755
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Federal Communications Commission DA 08-1755