**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+-----------------------------------+-----------------------------------+
| In the Matter of                  | )                                 |
|                                   |                                   |
| Pilgrim Communications, Inc.      | )                                 |
|                                   |                                   |
| Licensee of Station KDMN(AM)      | ) File Number EB-02-DV-436        |
|                                   |                                   |
| Buena Vista, Colorado             | ) NAL/Acct. No. 200332800008      |
|                                   |                                   |
| Facility ID #1153                 | ) FRN 0006-1624-73                |
|                                   |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | )                                 |
+-----------------------------------+-----------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Released: December 31, 2002

By the District Director, Denver Office, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Pilgrim Communications, Inc., (\"Pilgrim\"), licensee of
    Station KDMN, in Buena Vista, Colorado, apparently willfully and
    repeatedly violated Section 73.49 of the Commission\'s Rules
    (\"Rules\")[^1] by failing to provide an effective locked fence
    enclosing the station\'s antenna structure. We conclude, pursuant to
    Section 503(b) of the Communications Act of 1934, as amended
    (\"Act\"),[^2] that Pilgrim is apparently liable for a forfeiture in
    the amount of seven thousand dollars (\$7,000).

**II.** **BACKGROUND**

2.  During an inspection on October 28, 2002, a FCC agent from the
    Denver Office inspected the registered antenna structure for AM
    station KDMN, in Buena Vista, Colorado, (ASR# 1233212), licensed to
    Pilgrim. The base fencing was constructed close to the tower
    structure. At the time of the inspection, the agent found the wooden
    picket base fence damaged, allowing access to the radiating tower
    with radio frequency potential at the base. In particular, the agent
    observed large gaps between the wooden pickets that permitted easy
    contact with the structure by merely reaching through the gaps in
    the fence. In addition, the agent observed aged broken and damaged
    pickets that created gaps sufficiently large for a child or small
    adult to enter the enclosure.

**III.** **DISCUSSION**

###  {#section .unnumbered}

### 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.[^3] The term \"willful\" as used in Section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly and the term "repeated" means the commission or omission of such act more than once or for more than one day.[^4] 

###  {#section-1 .unnumbered}

### Section 73.49 of the Rules states in part that \"\[a\]ntenna 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.\" Pilgrim's license for KDMN describes the antenna system as a series-excited radiator. A \"series excited\" radiator may also be described as a \"series fed\" radiator. The AM transmission fencing requirements thus apply to station KDMN. The October 28, 2002, inspection of the KDMN antenna structure found the fence enclosing the antenna structure to have broken pickets and gaps between pickets, allowing access to the radiating tower. Effective base fencing is an important safety requirement. AM series-fed antenna structures radiate energy that renders any physical contact with the antenna structure itself extremely dangerous. In addition, AM antenna structures are capable of generating radio frequency fields at the base of the antenna structure that may exceed the Commission\'s maximum permissible exposure guidelines. Effective base fencing is thus important to prevent possible contact with the radiating structure and excessive radio frequency radiation exposure.

3.  Based on the evidence before us, we find that Pilgrim, licensee of
    station KDMN, failed to enclose the AM transmission system with an
    effective locked fence or other enclosure in willful and repeated
    violation of Section 73.49 of the Rules. The base forfeiture amount
    set by *The Commission\'s Forfeiture Policy Statement and Amendment
    of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, (\"*Forfeiture Policy Statement*\"),^5^ and Section
    1.80 of the Commissions Rules,[^5] for failure to comply with 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)(D) of the Act,[^6] which include the
    nature, circumstances, extent, and gravity of the violation(s), 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 Statement* and the
    statutory factors to the instant case, a \$7,000 forfeiture is
    warranted.

####  IV. ORDERING CLAUSES

## 

## Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the Communications Act of 1934, as amended,[^7] and Sections 0.111, 0.311 and 1.80 of the Commission\'s Rules,[^8] Pilgrim is hereby NOTIFIED of an 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,[^9]**^0^** within thirty days of the release date of this NOTICE OF APPARENT LIABILITY, Pilgrim SHALL PAY 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 may be made by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Forfeiture Collection Section, Finance Branch, Federal Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment must include the FCC Registration Number (FRN) and the NAL/Acct. No. referenced in the caption.

## 

## The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Technical and Public Safety Division, 445 12^th^ Street, S.W., Washington, D.C. 20554 and must include the NAL/Acct. No. referenced in the caption.

4.  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.

5.  Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief,
    Revenue and Receivables Operation Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^10]^1^

6.  Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Federal
    Communications Commission, Enforcement Bureau, Technical and Public
    Safety Division. Your certification should indicate whether you,
    including your parent entity and its subsidiaries, meet one of the
    definitions set forth in the list provided by the FCC's Office of
    Communications Business Opportunities (OCBO) set forth in Attachment
    A of this Notice of Apparent Liability. This information will be
    used for tracking purposes only. Your response or failure to respond
    to this question will have no effect on your rights and
    responsibilities pursuant to Section 503(b) of the Communications
    Act. If you have questions regarding any of the information
    contained in Attachment A, please contact OCBO at (202) 418-0990.

7.  IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by First Class and Certified Mail 7001 0320
    0002 9702 9455, Return Receipt Requested, to Gene Hood, Pilgrim
    Communications, Inc., 54 Monument Circle, Suite #250, Indianapolis,
    IN 46204.

#####  FEDERAL COMMUNICATIONS COMMISSION

#####  Leo E. Cirbo

District Director, Denver Office

Enclosure: Attachment A

[^1]: ^1^ 47 C.F.R. § 73.49.

[^2]: ^2^ 47 U.S.C. § 503(b).

[^3]: ^3^ 47 U.S.C. § 503(b).

[^4]: ^4^ 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."

    ^5^ 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^5]: ^6^ 47 C.F.R. § 1.80.

[^6]: ^7^ 47 U.S.C. § 503(b)(2)(D).

[^7]: ^8^ 47 U.S.C. § 503(b).

[^8]: ^9^ 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^9]: ^10^ 47 C.F.R. § 1.80.

[^10]: ^11^ *See* 47 C.F.R. § 1.1914.