**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | FILE Number EB-02-DV-436     |
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| Pilgrim Communications, Inc.     | ** | NAL/Acct. No. 200332800008   |
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| Station KDMN (AM),               | *  | FRN 0006-1624-73             |
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| Buena Vista, CO                  | ** |                              |
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**FORFEITURE ORDER**

**Adopted: June 30, 2004 Released: July 2, 2004**

By the Chief, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Forfeiture Order ("Order"),* we issue a monetary forfeiture
    in the amount of seven thousand dollars (\$7,000), to Pilgrim
    Communications, Inc. ("Pilgrim"), licensee of AM Station KDMN, Buena
    Vista, Colorado, for willful and repeated violation of Section 73.49
    of the Commission's Rules ("Rules").[^1] The noted violation
    involves Pilgrim's failure to keep KDMN's antenna structure enclosed
    within an effective locked fence or other enclosure.

2.  On December 31, 2002, the Commission's Denver, Colorado, Field
    Office ("Denver Office") issued a *Notice of Apparent Liability For
    Forfeiture*[^2] ("*NAL*") in the amount of seven thousand dollars
    (\$7,000) to Pilgrim for willful and repeated violation of Section
    73.49 of the Rules. Pilgrim filed a response on January 30, 2003,
    and supplemented its response on February 20, 2003.

# II. BACKGROUND

3.  On October 28, 2002, a Commission agent from the Denver Field Office
    inspected the KDMN antenna site and observed that the fencing
    surrounding the base of the antenna was constructed close to the
    antenna structure and contained large gaps between wooden pickets
    permitting easy contact with the AM antenna from outside the fence.
    Further, the agent from outside the fence observed that the fence
    had broken pickets allowing access to children and small adults. On
    December 31, 2002, the Denver office issued an *NAL* for the failure
    to have an effective locked fence around KDMN's antenna structure in
    willful and repeated violation of Section 73.49 of the Rules.

4.  In its January 30, 2003, response, as supplemented on February 20,
    2003, Pilgrim did not contest the findings in the *NAL* regarding
    the violation. However, Pilgrim requested cancellation of the
    forfeiture, citing an inability to pay. In support, Pilgrim
    described losses from a prior burglary and submitted its tax returns
    from 1998-2001. Pilgrim also described remedial measures undertaken
    as further justification for forfeiture cancellation.

    **III. DISCUSSION**

5.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^3] Section 1.80 of the Rules,[^4] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC
    Rcd. 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999). In
    examining Pilgrim'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 such other matters as justice may require.[^5]

6.  Section 73.49 of the Rules requires that antenna towers having radio
    frequency potential at the base be enclosed within effective locked
    fences or other enclosures. According to Pilgrim's license, its
    antenna system is described as a series -- excited or series fed
    radiator that radiates energy. The AM transmission fencing
    requirements thus apply to the antenna structure for Station KDMN.
    Effective base fencing is an important safety requirement to prevent
    physical contact with the KDMN antenna structure. The agent observed
    in her October 28, 2002, inspection of KDMN that the fence
    surrounding KDMN's antenna structure had aged broken and damaged
    pickets that had created sufficiently large gaps between the pickets
    which allowed access to the AM antenna. Based on the agent's
    inspection, we find that Pilgrim willfully and repeatedly violated
    Section 73.49 of the Commission Rules.[^6]

7.  In its response, Pilgrim acknowledges the deficiencies noted by the
    agent and cites efforts to cure them in seeking cancellation*.* The
    Commission has repeatedly stated that remedial actions taken to
    correct a violation are expected and as such are not mitigating
    factors warranting reduction of a forfeiture.[^7] Additionally, in
    support of its financial hardship claim, Pilgrim submits copies of
    its 1998, 1999, 2000 and 2001 federal income tax returns.[^8] The
    Commission has determined that, in general, a licensee's gross
    revenues are the best indicator of its ability to pay a
    forfeiture.[^9] After reviewing the financial data submitted, we
    find that the proposed monetary forfeiture should not be cancelled
    or reduced.[^10]

8.  We have examined Pilgrim's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that
    Pilgrim Communications, Inc. willfully and repeatedly violated
    Section 73.49 of the Rules and find that cancellation of the
    proposed monetary forfeiture is not warranted.

    **IV. ORDERING CLAUSES**

9.  Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act and sections 0.111, 0.311 and 1.80(f) of the Rules,[^11]
    Pilgrim Communications, Inc. **IS LIABLE FOR A MONETARY FORFEITURE
    i**n the amount of seven thousand dollars (\$7,000) 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.[^12] Payment shall be made by
    mailing a check or similar instrument, payable to the order of the
    "Federal Communications Commission," to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should note NAL/Acct. No. 200332800008, and FRN
    0006-1624-73. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivable Group, 445 12^th^
    Street, S.W., Washington, D.C. 20554.[^13]

11. **IT IS FURTHER ORDERED** that, a copy of this *Order* shall be sent
    by Certified Mail, Return Receipt Requested, and by First Class mail
    to Pilgrim's Counsel, Marnie K. Sarver, Wiley Rein & Fielding, LLP,
    1776 K Street, N.W., Washington, D.C. 20006.

    FEDERAL COMMUNICATIONS COMMISSON

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 73.49

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332800008 (Enf. Bur. , Denver Office, released December 31, 2002.

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 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, ... 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).
    Repeated merely means that the act was committed or omitted more
    than once, or lasts more than one day, *See Southern California
    Broadcasting Co*., at 4388, ¶ 5; *Callais Cablevision, Inc*., 16 FCC
    Rcd 1359 at 1362, ¶ 9 (2001).

[^7]: *See, e.g., AT&T Wireless Services, Inc.,* 17 FCC Rcd. 21866,
    21871 (2002); *Seawest Yacht Brokers,* 9 FCC Rcd 6099 (1994);
    *Station KGVL, Inc.*42 FCC 2d 258, 259 (1973).

[^8]: Since we consider only the three most recent federal income tax
    returns, we are not considering the 1998 return.

[^9]: *See PJB Communications of Virginia, Inc.,* 7 FCC Rcd 2088, 2089
    (1992).

[^10]: *Id.* at 2089 (forfeiture not deemed excessive where it
    represented approximately 2.02 percent of he violator's gross
    revenues); *Hoosier Broadcasting Corporation,* 15 FCC Rcd 8640, 8641
    (Enf. Bur. 2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    revenues); *Afton Communications Corp.,* 7 FCC Rcd 6741 (Com. Car.
    Bur. 1992) (forfeiture not deemed excessive where it represented
    approximately 3.9 percent of the violator's gross revenues). We have
    reviewed Pilgrim's financial data in this case and two other cases
    involving Pilgrim simultaneously and have determined it is able to
    pay all the forfeitures. *See Pilgrim Communications, Inc*., 19 FCC
    Rcd 8877 (Enf. Bur. 2004); *Pilgrim Communications, Inc.,* 19 FCC
    Rcd 8881 (Enf. Bur. 2004).

[^11]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^12]: 47 U.S.C. § 504(a).

[^13]: *See* 47 C.F.R. § 1.1914.