**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-08-DV-0082      |
|                                  |   |                                 |
| Greeley Broadcasting Corporation | ) | NAL/Acct. No. 200832800005      |
|                                  |   |                                 |
| Licensee of Station KGRE-AM      | ) | FRN: 0005078597                 |
|                                  |   |                                 |
| Antenna Structure Registrant     | ) |                                 |
|                                  |   |                                 |
| Greeley, Colorado                | ) |                                 |
|                                  |   |                                 |
| Facility ID \# 33821             | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: July 29, 2008

By the District Director, Denver Office, Western Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Greeley Broadcasting Corporation (\"Greeley
    Broadcasting\"), licensee of station KGRE-AM in Greeley, Colorado,
    apparently willfully and repeatedly violated Section 73.49 of the
    Commission\'s Rules (\"Rules\")[^1] by failing to enclose the
    KGRE-AM antenna structure, a tower with radio frequency potential at
    the base, with an effective locked fence or other enclosure. We
    conclude, pursuant to Section 503(b) of the Communications Act of
    1934, as amended (\"Act\"),[^2] that Greeley Broadcasting is
    apparently liable for a forfeiture in the amount of seven thousand
    dollars (\$7,000).

# BACKGROUND

2.  On March 14, 2008, at 3:15 p.m., agents from the Enforcement
    Bureau\'s Denver Office conducted an inspection of an AM broadcast
    tower located at approximately 40° 26\' 15\" north latitude and 104°
    43\' 27\" west longitude in Greeley, Colorado. Close observation
    revealed that the lock to the gate for the fenced enclosure was not
    engaged. The agents found the lock stuck in the open position and
    were unable to close it. As a result the agents were able to gain
    access to the structure, a series-fed antenna with an insulated
    base. The agents observed that there were residences within 250
    yards of the tower and there was no perimeter fencing erected around
    the property to keep the public from approaching the structure. A
    search of the Commission\'s database on-scene indicated that
    KGRE-AM, licensed to Greeley Broadcasting, was broadcasting from the
    structure.

3.  Upon completion of the site inspection the Denver agents traveled to
    the KGRE-AM main studio in Greeley, Colorado. When they arrived at
    the studio at approximately 4:20 p.m., an oral warning was issued
    regarding the base fencing violation to the staff member present.
    The staffer then contacted the president of Greeley Broadcasting by
    phone to talk with the agents. The agents conducted a telephone
    interview with the executive, again issuing an oral warning for the
    non-secured base fence. During the interview, the executive
    acknowledged that the condition of the lock was a serious safety
    issue and he agreed to remedy the situation immediately and to
    contact the agent as soon as the repairs were completed. Later that
    day, at approximately 6:15 p.m., the executive notified the Denver
    agents, by cellular telephone call, that the lock on the tower fence
    had been replaced.

4.  On March 17, 2008, a Denver agent contacted the Greeley Broadcasting
    executive to obtain more information about recent access to the
    transmitter location. The executive admitted that he was unable to
    close the existing lock when he arrived at the transmitter site on
    March 14, 2008, to replace the device. When asked about recent site
    activity, the owner responded that he could not recall the date of
    his last visit to the site, but that he typically went there once a
    month to do work inside the building. On these occasions, he did not
    enter the fenced-in area around the tower base. Upon request, the
    owner provided the agent with the name of the engineers who had
    conducted work for the station on a contract basis.

5.  On March 18, 2008, a Denver agent traveled to the KGRE-AM tower site
    and verified that the lock had been replaced with a functioning
    device.

6.  On March 21, 2008, a Denver agent contacted all three engineers
    whose names had been provided by Greeley Broadcasting. Two of the
    engineers claimed they had not been to the site in three months or
    longer. The third engineer stated that he had been to the site
    approximately one week prior to the Denver agents\' inspection on
    March 14, 2008. As with the two other contract engineers, this third
    engineer could not recall the last time he had entered the fenced
    enclosure.

# DISCUSSION

7.  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.[^3] The term \"repeated\" means
    the commission or omission of such act more than once or for more
    than one day.[^4]

8.  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.[^5] Individual tower fences need not be
    installed if the towers are contained within a protective property
    fence.[^6] 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.\"[^7]

9.  KGRE-AM broadcasts from a series-fed tower with an insulated base
    and, pursuant to Section 73.49, must be enclosed with an effective
    locked fence or other enclosure. The KGRE-AM tower is located
    adjacent to residential development and there is no other perimeter
    fencing to keep the public from approaching the structure. With no
    perimeter fence, the base fence around the individual AM tower must
    be effective.[^8] At the time of the March 14, 2008, inspection, the
    lock to the gated, fenced enclosure surrounding the KGRE-AM tower
    was found stuck in the unlocked position and the agents were unable
    to close it. An executive of Greeley Broadcasting admitted to
    experiencing the same difficulty when he inspected the lock later
    that day. With no working lock on the gate, the agents were able to
    easily access the base of the KGRE-AM tower, therefore, the fence
    surrounding the KGRE-AM tower was ineffective. Interviews conducted
    by the Denver agents revealed that no station employee or contractor
    had been to the KGRE-AM tower site for at least a week prior to the
    Denver agents\' inspection, and of those that had visited KGRE-AM
    tower site in the last few months, none acknowledged checking the
    lock or the gate at the site.

10. Greeley Broadcasting was aware of the requirement to maintain an
    effective locked fence or enclosure surrounding the KGRE-AM tower,
    given the fact it had maintained locks for the KGRE-AM tower fence
    in the past. Therefore, its violation was willful. The violation
    occurred on more than one day, therefore, it was repeated. Based on
    the evidence before us, we find that Greeley Broadcasting apparently
    willfully and repeatedly violated Section 73.49 of the Rules by
    failing to maintain the KGRE antenna structure within an effective
    enclosure.

11. 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 forfeiture amount for failing to enclose the
    antenna structure within an effective locked fence or other
    enclosure is \$7,000.[^9] In assessing the monetary forfeiture
    amount, we must also take into account the statutory factors set
    forth in Section 503(b)(2)(E) 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.[^10] Applying the *Forfeiture Policy Statement*,
    Section 1.80, and the statutory factors to the instant case, we
    conclude that Greeley Broadcasting is apparently liable for a
    \$7,000 forfeiture.

# ORDERING CLAUSES

12. Accordingly**, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, 0.314 and 1.80 of the Commission\'s Rules, Greeley
    Broadcasting Corporation 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.[^11]

13. **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, Greeley Broadcasting
    Corporation **SHALL PAY** the full amount of the proposed forfeiture
    or **SHALL FILE** a written statement seeking reduction or
    cancellation of the proposed forfeiture.

14. 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. [^12]  Please contact the Financial Operations Group
    Help Desk at 1-877-480-3201 or Email: <ARINQUIRIES@fcc.gov> with any
    questions regarding payment procedures. Greeley Broadcasting
    Corporation will also send electronic notification on the date said
    payment is made to WR-Response@fcc.gov.

15. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, Denver District
    Office, 215 S. Wadsworth Boulevard, Suite 303, Lakewood, CO 80226
    and must include the NAL/Acct. No. referenced in the caption. An
    electronic copy shall be sent to WR-Response@fcc.gov.

16. 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.

17. **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 Greeley Broadcasting
    Corporation.

FEDERAL COMMUNICATIONS COMMISSION

Nikki P. Shears

District Director

Denver Office

Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 73.49.

[^2]: 47 U.S.C. § 503(b).

[^3]: 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).

[^4]: 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]: 47 C.F.R. § 73.49.

[^6]: 47 C.F.R. § 73.49.

[^7]: *Review of the Technical and Operational Regulations of Part 73,
    Subpart A, AM Broadcast Stations,* 59 Rad. Reg. 2d (Pike & Fischer)
    927, ¶6 (1986) (\"*Report and Order\"*).

[^8]: *See Butterfield Broadcasting Corporation*, 20 FCC Rcd 20237 (EB
    2005).

[^9]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^10]: 47 U.S.C. § 503(b)(2)(E).

[^11]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    73.49.

[^12]: *See* 47 C.F.R. § 1.1914.