Federal Communications Commission DA 09-2442
 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
The Evans Broadcast Company, Inc.
Licensee of Station KCMY(AM)
Carson City, Nevada
Facility ID # 40801
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File Number:  EB-08-SF-0284
NAL/Acct. No.:  200932960002
FRN:  0011889250
FORFEITURE ORDER
Adopted: November 18, 2009 Released: November 20, 2009 
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 three 
thousand, five hundred dollars ($3,500) to The Evans Broadcast Company, Inc. ("Evans"), licensee of 
station KCMY(AM), in Carson City, Nevada, for willful and repeated violation of Section 73.49 of the 
Commission's Rules ("Rules").1 On November 25, 2008, the Enforcement Bureau’s San Francisco Office 
issued a Notice of Apparent Liability for Forfeiture (“NAL”) in the amount of $5,600 to Evans for failing 
to enclose the KCMY(AM) antenna towers within an effective locked fence or other enclosure.2 Evans 
filed a response (“Response”) on December 24, 2008.  In this Order, we consider Evan’s arguments that it 
made good faith efforts to comply with the Rules, and that it has a history of compliance with the Rules.  
II. BACKGROUND
2. On June 10, 2008, an agent from the Enforcement Bureau’s San Francisco Office 
inspected KCMY(AM)’s antenna tower site in Carson City, Nevada, and found that large portions of the 
wooden base fences surrounding each of the two KCMY(AM) antenna towers making up the 
KCMY(AM) two-tower array were laying on the ground.  For one tower, half of the entire fence was 
laying on the ground.  For the other tower, large portions, approximately eight to ten feet wide, were 
laying on the ground.  The agent observed that there was no protective property fence surrounding the 
KCMY(AM) antenna site.  The agent also observed that there was a bike path approximately 100 yards 
from the antenna site.
3. On June 11, 2008, the San Francisco agent returned to the KCMY antenna site and again 
found that large segments of the base fences surrounding each of the two KCMY(AM) antenna towers 
were laying on the ground.  The agent also observed that there was no protective property fence 
surrounding the KCMY(AM) antenna site.  The agent then conducted an inspection of the KCMY(AM) 
main studio and interviewed KCMY(AM) management about the KCMY(AM) fences.  The KCMY(AM) 
manager acknowledged that the fences had blown down two or three times in the past, most recently six 
or seven weeks earlier.  The manager told the agent that the station had attempted to get the fences 
repaired, and produced a proposal for repairs, but said that the company proposing to do the work was 
  
1 47 C.F.R. § 73.49.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932960002 (Enf. Bur., Western Region, San Francisco 
Office, released November 25, 2008).  
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waiting for the ground to dry so that their vehicles did not get stuck in the mud.  The agent noted that 
there was no set date on the proposal for the repair of the fences.  The agent warned the KCMY(AM) 
manager that some type of temporary fencing enclosure had to be erected with warning signs to keep the 
public from approaching the KCMY(AM) towers.  Later that day, the San Francisco agent returned to the 
KCMY(AM) tower site and observed that orange, plastic temporary fencing had been installed around the 
two KCMY(AM) tower fences, along with warning signs.
4. On November 25, 2008, the San Francisco Office issued a NAL in the amount of $5,600 
to Evans, finding that Evans apparently willfully and repeatedly violated Section 73.49 of the Rules3 by 
failing to enclose the KCMY(AM) antenna towers within an effective locked fence or other enclosure, but 
that Evans had demonstrated a good faith effort to attempt to initiate repairs to the fence prior to the 
inspection by the FCC agent.4 In its Response, Evans argues that it made good faith efforts to comply with 
the Rules, that it promptly erected the temporary fence urged by the agent, that the stations gross revenues 
are marginal, and that it has a history of compliance with the Rules.   
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance with Section 
503(b) of the Act,5 Section 1.80 of the Rules,6 and The Commission’s Forfeiture Policy Statement and 
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines (“Forfeiture Policy 
Statement”).7 In examining Evan’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.8
6. 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.9 The KCMY(AM) antenna towers are 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.”10  On June 10, 2008, and June 11, 2008, a San 
Francisco agent inspected the KCMY(AM) antenna tower site and found that, for both towers, the base 
fences surrounding those towers were missing large portions of the fences, and that there was no 
protective property fence at the site beyond the base fence.  When asked by the San Francisco agent, a 
KCMY(AM) manger acknowledged that the fences had been blown down several weeks earlier, and that 
efforts had been made to contract with a company to repair them, but no repairs had been made because 
  
3 47 C.F.R. § 73.49.
4 Pursuant to Section 1.80 of the Rules, 47 C.F.R. § 1.80, the base forfeiture amount for violating the AM tower fencing 
rule is $7,000.  The San Francisco Office reduced the base forfeiture amount, pursuant to the downward adjustment 
criteria in  Section 1.80, based on its assessment that Evans had engaged in good faith efforts prior to the agent’s 
inspection.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
8 47 U.S.C. § 503(b)(2)(E).
9 47 C.F.R. § 73.49.
10 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”).
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of the muddy ground near the fences.
7. In its Response, Evans does not dispute that, at the time of the June 10 and June 11, 2008, 
inspections, the KCMY(AM) towers were not enclosed within an effective fence or enclosure.  Evans 
argues that the fence had blown down earlier in the year and that it had acted responsibly when on April 
8, 2008, prior to the agent’s inspection, it ordered repairs to be made.  The repairs had not yet been made, 
at the time of the inspection, because the ground surrounding the fence was too wet to allow vehicle 
access.  Evans also argues that at the agents’ urging on June 11, 2008, it promptly erected temporary 
fencing around the two towers and posted warning signs.  Consequently, Evans argues that the proposed 
forfeiture should be cancelled because of its good faith efforts to comply with the Rules, and its history of 
compliance with Rules.
8. We note that the San Francisco Office, in consideration of Evans’ pre-inspection efforts, 
proposed a reduced forfeiture in the NAL.  In view of the inability of the station to effect the repairs 
(including setting cement for fence posts) for which it had contracted prior to the agents’ inspection due 
to the wet ground, a factor outside Evans’ control, we will apply an additional good faith reduction to the 
forfeiture.  We decline, however, to cancel the forfeiture.  The erection of temporary fencing at the urging 
of the FCC agent does not warrant any further reduction.11 While Evans asserts its gross revenues are 
marginal, it did not proffer any of the evidence required for consideration of an inability of pay argument.  
We have also reviewed our records and we have determined that Evans does have a history of compliance 
with the Rules.  We therefore will reduce the forfeiture amount to $3,500.
9. We have examined the Response to the NAL pursuant to the statutory factors above, and 
in conjunction with the Forfeiture Policy Statement.  As a result of our review, we conclude that Evans 
willfully and repeatedly violated Section 73.49 of the Rules.  Considering the entire record and the factors 
listed above, we find that reduction of the proposed forfeiture to $3,500 is warranted.
IV.  ORDERING CLAUSES
10. 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, The Evans Broadcast Company, Inc., IS LIABLE FOR A MONETARY 
FORFEITURE in the amount of $3,500 for willfully and repeatedly violating Section 73.49 of the 
Rules.12
11.  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.13 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 
  
11 We note that addressing violations of the Rules post-inspection does not provide a basis for a downward adjustment 
in the proposed forfeiture.  The Commission has stated in the past 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. AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002); see also Rama Communications, Inc., 
23 FCC Rcd 18209, 18211 (EB 2008) (“[W]here lapses in compliance occur, neither the negligent acts nor omissions 
of station employees or agents, nor the subsequent remedial actions undertaken by the licensee, excuse or nullify the 
licensee’s rule violation”).  
12 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4), 73.49.
13 47 U.S.C. § 504(a).
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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.  Please contact the Financial Operations Group Help Desk at 1-877-480-3201 or Email: 
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First Class Mail 
and Certified Mail Return Receipt Requested to The Evans Broadcast Company, Inc., at its address of 
record, and its counsel of record, Aaron P. Shainis, Esquire. 
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau