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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Kaspar Broadcasting Co. of ) File No. EB-02-KC-757
Missouri ) NAL/Acct. No. 200332560001
Licensee of Station KWRE(AM) ) FRN 0003-7474-82
Warrenton, Missouri
MEMORANDUM OPINION AND ORDER
Adopted: March 16, 2004 Released: March 19, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
cancel the $7,000 Notice of Apparent Liability for Forfeiture
(``NAL'') issued to Kaspar Broadcasting Co. of Missouri
(``Kaspar''), licensee of Station KWRE(AM), Warrenton, Missouri.1
The NAL found that Kaspar failed to enclose the antenna
structure, which had radio frequency potential at its base,
within an effective locked fence or other enclosure, in apparent
willful violation of Section 73.49 of the Commission's Rules
(``Rules'').2
II. BACKGROUND
2. On September 11, 2002, an agent from the Commission's
Kansas City, Missouri Office (``Kansas City Office'') conducted
an on-site inspection of Station KWRE(AM)'s antenna structure.
The agent found that the gate to the fence enclosing the antenna
structure was unlocked. On October 28, 2002, the Kansas City
Office released the NAL. Kaspar filed a response to the NAL on
November 8, 2002.3
3. In its response, Kaspar did not dispute the NAL's
findings, but sought cancellation of the NAL based on the
circumstances presented and its past history of FCC compliance.
Specifically, Kaspar explained that during the inspection it had
been broadcasting a service commemorating the September 11, 2001
tragedy from the local firehouse (located a block from the
station's antenna structure), that it had experienced technical
difficulties with its remote equipment, and that its employees
left the gate open briefly (over a period of thirty minutes) to
facilitate repairs to the equipment while providing continuous
coverage of the community memorial event.4 But for the unusual
circumstances of the September 11th broadcast and the brief
thirty minute period, Kaspar stated that its practice is to
maintain a locked gate.5 Kaspar also stated that, since 1936, it
has held and continues to hold licenses for various broadcast
stations, ``has never received a notice of violation for any of
the FCC's rules,'' has been ``extremely proud of the record,''
and did not ``want it blemished at this late date because of a
misunderstanding.''6
III. DISCUSSION
4. In the instant case, Kaspar did not deny that on the
morning of September 11, 2002 its employees left the gate to the
fence gate open. As a Commission licensee, Kaspar is held
accountable for the actions of its employees,7 and is responsible
for maintaining an effectively enclosed antenna structure. We
find that Kaspar willfully violated the antenna fencing
requirements of Section 73.49 of the Rules,8 by consciously and
deliberately leaving the gate open on the morning of September
11, 2002. However, as discussed below, we agree with Kaspar that
cancellation of the NAL is appropriate.9
5. The record establishes that on the morning of September
11, 2002, the gate, which Kaspar's practice was to lock, was open
for a very brief period of time to facilitate the necessary
equipment repairs that allowed Station KWRE(AM) to serve its
community needs by continuing its coverage of the local
commemorative event. Under the circumstances, we find the nature
and extent of Kaspar's infraction to be relatively
insignificant,10 when compared to other Section 73.49
violations.11 Additionally, we find that, as Kaspar asserted and
a search of agency decisions and notices confirmed, the stations
licensed to Kaspar and its commonly owned and controlled company
Kaspar Broadcasting Company, Inc., have an unblemished history of
serving their broadcast communities. We believe that the
circumstances surrounding and the nature and extent of Kaspar's
violation, together with its unblemished past history, justifies
cancellation of the NAL.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section
504(b) of the Act and Section 1.80(f)(4) of the Rules,12 the
prior Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332560001, IS CANCELLED.
7. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Vern Kaspar, President, Kaspar Broadcasting Co. of
Missouri, P.O. Box 545, Frankfort, Indiana 46041.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332560001 (Enf. Bur., Kansas City Office, released October 28,
2002).
2 47 C.F.R. § 73.49.
3 See Letter from Vern Kaspar, President, Kaspar Broadcasting of
Missouri to the Federal Communications Commission, Office of the
Secretary (dated November 5, 2002) (``NAL Response'').
4 See NAL Response at 1; see also Exhibit 1 (the corroborating
statement of Mike Thomas, Station KWRE(AM)'s program
coordinator).
5 Id.
6 Id. at 1.
7 See Eure Family Limited Partnership, 17 FCC Rcd 21861, 21864-65
¶¶ 7-8 (2002); Sonderling Broadcasting Corp., 69 FCC 2d 289, 291
¶ 6 (1978); American Paging, Inc., 12 FCC Rcd 10417, 10419 ¶ 11
(Enf. Bur. 1997); Dial-A-Page, Inc., 10 FCC Rcd 8825, 8826 ¶ 5
(Enf. Bur. 1995).
8 See 47 U.S.C. § 503(b)(1)(B) (providing that that any person
found to have ``willfully'' or repeatedly failed to comply with
any provision of the Act or Commission Rule or Order ``shall be
liable to the United States for a forfeiture penalty''); see also
47 U.S.C. § 312(f); Southern California Broadcasting Co., 6 FCC
Rcd 4387, 4387-88, ¶ 5 (1991).
9 See 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4) (providing
that the Commission may cancel or adjust proposed forfeitures by
taking into account the violation's nature, circumstances, extent
and gravity; the violator's degree of culpability, history of
prior offenses, ability to pay; and other matters as justice may
require).
10 See Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 ¶ 8 (1994);
WWC License LLC, 16 FCC Rcd 19490, 19492 ¶ 9 (Enf. Bur. 2001);
Califormula, Inc., 16 FCC Rcd 15087, 15087-88 ¶ 4 (Enf. Bur.
2001); see also Anastos Media Group, Inc., 18 FCC Rcd 8573, 8574
¶ 8 (Enf. Bur. 2003).
11 See, e.g., Commonwealth License Subsidiary, LLC, 18 FCC Rcd
20483, 20485 ¶ 8 (Enf. Bur. 2003); Mitchell Communications,
Inc., 17 FCC Rcd 22391, 22393-94 ¶ 9 (Enf. Bur. 2002)
12 47 U.S.C. § 504(b); 47 C.F.R. § 1.80(f)(4).