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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Albino Ortega and Maria Juarez File No.: EB-06-PO-101
)
Licensees of AM Station KIGO NAL/Acct. No.: 200632920003
)
St. Anthony, Idaho FRN: 0011338407
)
Facility ID No. 22622
)
FORFEITURE ORDER
Adopted: May 2, 2007 Released: May 4, 2007
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 hundred dollars ($500) to Albino Ortega and Maria
Juarez, licensees of AM radio station KIGO in St. Anthony, Idaho, for
willfully and repeatedly violating Section 73.49 of the Commission's
Rules ("Rules"). On September 27, 2006, the Enforcement Bureau's
Portland Resident Agent Office issued a Notice of Apparent Liability
for Forfeiture ("NAL") in the amount of $7,000 to Ortega and Juarez
for failing to enclose the KIGO antenna tower within an effective
locked fence or other enclosures. In this Order, we consider Ortega
and Juarez's request that we reduce the forfeiture amount based on
their inability to pay the amount proposed by the Portland Office.
II. BACKGROUND
2. On August 1, 2006, an agent from the Enforcement Bureau's Portland
Resident Agent Office conducted an inspection of the AM antenna tower
used by Albino Ortega and Maria Juarez to broadcast AM station KIGO.
According to its license, the KIGO antenna tower is series fed and,
therefore, required to be fenced. Upon inspection of the KIGO antenna
tower, the Portland agent found that the antenna tower did not have a
locked fence or any type of barrier surrounding the base of the tower.
The antenna site, located in Rigby, Idaho, is approximately 3000 feet
northeast from a residential community. In addition, the agent noted
that there was no perimeter fence surrounding the property upon which
the antenna structure was sited to prevent the public from accessing
the tower.
3. On August 2, 2006, the Portland agent again inspected the KIGO tower
and found that there continued to be no locked fence or any type of
barrier surrounding the base of the KIGO tower. There also continued
to be no perimeter property fence surrounding the antenna site to
prevent the public from accessing the tower.
4. On August 3, 2006, the Portland agent inspected the KIGO main studio
in Idaho Falls, Idaho. The agent advised the chief operator on duty
about the lack of fencing or barriers around the KIGO tower. The chief
operator acknowledged the lack of fencing and barriers around the
tower.
5. On September 27, 2006, the Portland Office issued a NAL in the amount
of $7,000 to Ortega and Juarez, finding that Ortega and Juarez
apparently willfully and repeatedly violated Section 73.49 of the
Rules by failing to enclose the KIGO antenna tower within an effective
locked fence or other enclosures. Ortega and Juarez filed a response
("Response") on October 25, 2006, admitting the violation of Section
73.49, providing evidence that an effective fence now enclosed the
antenna structure, and requesting that the forfeiture amount be
reduced based on their inability to pay.
III. DISCUSSION
6. 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 Ortega and Juarez'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.
7. 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 KIGO AM antenna tower is 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." The Portland
agent's inspections on August 1, 2006, and August 2, 2006, revealed no
locked fence or barrier of any type surrounding the base of the KIGO
tower. Ortega and Juarez provide evidence that as of October 10,
2006, a barrier had been constructed around the base of the KIGO
antenna tower.
8. In their Response, Ortega and Juarez admit their violation of Section
73.49, but also request that the forfeiture amount be reduced based on
their inability to pay. To support their request, they supply three
years of income tax data. In analyzing a financial hardship claim, the
Commission generally has looked to gross revenues as a reasonable and
appropriate yardstick in determining whether a licensee is able to pay
the assessed forfeiture. While we find that Ortega and Juarez
willfully and repeatedly violated Section 73.49 of the Rules, based
upon their inability to pay, we conclude that pursuant to Section
503(b) of the Act and the Forfeiture Policy Statement, reduction of
the $7,000 forfeiture to $500 is warranted.
IV. ORDERING CLAUSES
9. 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, Albino Ortega and
Maria Juarez , ARE LIABLE FOR A MONETARY FORFEITURE in the amount of
$500 for willfully and repeatedly violating Section 73.49 of the
Rules.
10. 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/Acct. No.
and FRN No. referenced above. Payment by check or money order 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,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-
6106. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Albino
Ortega and Maria Juarez at their address of record.
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. 200632920003
(Enf. Bur., Western Region, Portland Resident Agent Office, released
September 27, 2006).
The residential community consists of single family homes along several
county roads in Rigby, Idaho.
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.
Review of the Technical an Operational Regulations of Part 73, Subpart A,
AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, P6 (1986)
("Report and Order").
We note 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. See, e.g., AT&T
Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
As part of their Response, Ortega and Juarez submit photographs of the
completed fence now surrounding the KIGO antenna tower.
See PLB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 73.49.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-1996
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Federal Communications Commission DA 07-1996