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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                 )
Cumulus Licensing LLC            )           File No. EB-03-DV-264
                                 )
Licensee of FM Stations          )      NAL/Acct. No. 200532800001
                                 )
KEKB(FM)                         )                  FRN 0002834810
Fruita, Colorado                 )
Facility ID # 30431              )
                                 )
KMXY(FM)                         )
Grand Junction, Colorado         )
Facility ID # 5550               )
                                 )
KBKL(FM)                         )
Grand Junction, Colorado         )
Facility ID # 30430              )
                                

           NOTICE OF APPARENT LIABILITY FOR FORFEITURE


                                             Released:  January 
6, 2005 
                                             
By the District Director, Denver District Office, Western Region, 
Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture 
(``NAL''), we find that Cumulus Licensing LLC (``Cumulus''), 
licensee of KEKB(FM), 99.9 MHz, Fruita, Colorado, KBKL(FM), 107.9 
MHz, Grand Junction Colorado, and KMXY(FM), 104.3 MHz, Grand 
Junction, Colorado, apparently willfully violated Section 1.1310 
of the Commission's Rules (``Rules'')1 by failing to comply with 
radio frequency radiation (``RFR'') maximum permissible exposure 
limits applicable to facilities, operations, or transmitters.  We 
conclude, pursuant to Section 503(b) of the Communications Act of 
1934, as amended (``Act''),2 that Cumulus is apparently liable 
for forfeiture in the amount of ten thousand dollars ($10,000).  

II.  BACKGROUND

     2.   Section 1.1310 of the Rules defines the maximum 
permissible exposure (``MPE'') limits for electric and magnetic 
field strength and power density for transmitters operating on 
towers at frequencies from 300 kHz to 100 GHz.3  These MPE limits 
include limits for ``occupational/controlled'' exposure and 
limits for ``general population/uncontrolled'' exposure.  The 
occupational exposure limits apply in situations in which persons 
are exposed as a consequence of their employment provided those 
persons are fully aware of the potential for exposure and can 
exercise control over their exposure.4  The limits of 
occupational exposure also apply in situations where an 
individual is transient through a location where the occupational 
limits apply, provided that he or she is made aware of the 
potential for exposure.  The more stringent general population or 
public exposure limits apply in situations in which the general 
public may be exposed, or in which persons that are exposed as a 
consequence of their employment may not be fully aware of the 
potential for exposure or cannot exercise control over their 
exposure.5

     3.   On August 26, 2003, the Commission received a complaint 
from a tower climber concerning an RFR exposure incident that 
allegedly occurred on June 5, 2003, while the tower climber 
performed maintenance on a Cumulus owned tower, located near 
Grand Junction, Colorado.  The tower climber alleged that while 
he was working on the tower, Cumulus re-energized its antenna 
back to full power without notification to the climber.  On 
September 2, 2003, and July 8, 2004, the tower climber was 
interviewed by an agent from the Commission's Denver Field 
Office.

     4.   Cumulus is the registered tower owner for Antenna 
Structure Registration Number (``ASRN'') 1022763, upon which the 
antennas for KBKL(FM), KMXY(FM) and KEKB(FM) are mounted.6  The 
KBKL(FM) and KMXY(FM) facilities are diplexed (combined) into one 
eight bay antenna mounted at a radiation center height of 73 
meters above ground level (AGL) with 100 kw ERP each.7  Further 
up the tower at 98 meters (AGL) is the KEKB(FM) six bay antenna 
with 79 kw ERP.8  The tower climber was on the Cumulus tower on 
June 5, 2003, to attempt to repair a transmission line leak.  The 
tower climber was wearing a suit and a hood specifically designed 
for protection in RFR environments.  After an initial climb of 
approximately 200 feet up the tower, the tower climber stated 
that his personal RFR meter indicated that the RFR was twenty-
five times the occupational MPE limit.9  The tower climber stated 
that he then descended the tower and radioed to the Cumulus 
engineer that the RFR level was too high for him to proceed.  
According to the tower climber, the Cumulus engineer agreed to 
turn off the transmitter on the tower.  The tower climber 
proceeded back up the tower.  At that time his personal RFR 
monitor was indicating only a minimal RFR reading which signaled 
to the tower climber that the station had been taken off the air.  
The tower climber stated that he then turned off his personal RFR 
monitor because the Cumulus engineer had told him that the 
station would be kept off the air until he finished his work.  
The tower climber also removed the protective suit hood and 
proceeded with the maintenance work.

     5.   Within forty minutes of resuming his work, the tower 
climber stated that he felt a burning sensation on his lower 
legs.  About three to four minutes later, the tower climber 
stated that he saw smoke coming from the bottom of his suit.  
According to information received from the manufacturer of the 
suit worn by the tower climber, the suit is rated for use up to 
fifteen to twenty times the occupational RFR MPE limit.10  The 
tower climber stated that he attempted to contact the Cumulus 
engineer but was unsuccessful.  The tower climber then began to 
climb approximately forty feet down the tower, to what he thought 
was a safe place on the tower, indicating that it took him about 
one to two minutes to make that climb.  

     6.   On February 4, 2004, the Denver Field Office sent a 
Letter of Inquiry to Cumulus asking for more information 
concerning the events of June 5, 2003.11  Cumulus responded to 
the LOI on March 5, 2004,12 and supplemented its Response on 
April 8, 2004.13  In its Response, Cumulus stated that when the 
tower climber arrived to fix the transmission line leak, the 
Cumulus engineers were told that the tower climber was in a 
hurry.14  One engineer initially attempted to reduce power for 
each of the three Cumulus stations on the tower (KEKB(FM), 
KBKL(FM) and KMXY(FM)) ``as much as possible.''15  The engineer 
stated that he reduced the stations' power to ten to twelve 
percent of full power and the tower climber began his climb.  
When the tower climber notified the engineer that his personal 
RFR meter was registering levels in excess of safety standards, 
the engineer powered down the transmitters.16

     7.   Once the transmitters were turned off, the tower 
climber began his climb again.  According to the Cumulus 
engineer, at one point the tower climber yelled down from the 
tower that there was a problem with the radiation.  The engineer 
``immediately ran back to the transmitter building and discovered 
that the KBKL and KMXY transmitters were on.''17  The engineer 
indicated that the main breaker for the transmitters was on and 
he turned it off.18  The engineer acknowledged that due to, among 
other things ``the sense of urgency on the part of the tower 
crew, [he] failed to explicitly follow the procedures and [ ] did 
not notify the appropriate persons who had access to the 
transmitters on the KEKB tower.''19  

     8.   Cumulus further stated in response to the LOI that the 
events surrounding the incident on June 5, 2003, were isolated, 
that Cumulus takes RFR safety seriously and that it is taking the 
necessary steps to prevent any similar incident from ever 
happening again.20       

III.       DISCUSSION

     9.   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.21 

     10.  Section 1.1310 of the Rules requires licensees to 
comply with RFR exposure limits.22 Table 1 in Section 1.1310 of 
the Rules provides that the occupational RFR maximum permissible 
exposure limit for a station operating in the frequency range of 
30 MHz to 300 MHz is 1.0 mW/cm2.  On June 5, 2003, a tower 
climber engaged by Cumulus to perform maintenance work on the 
KEKB tower was apparently exposed to levels of RFR that far 
exceed the MPE limits for occupational exposure.  The tower 
climber has stated that he was working on the KEKB tower, at a 
height of approximately 200 feet, which apparently placed him in 
close proximity to the diplexed KBKL(FM)/KMXY(FM) antenna.  
Cumulus engineers acknowledge that despite the decision to turn 
off all three of the transmitters on the tower, once the climber 
ascended the tower and began work, a Cumulus engineer discovered 
that the KBKL and KMXY transmitters were on.23  The engineer 
acknowledged that due to, among other things, ``the sense of 
urgency on the part of the tower crew, [he] failed to explicitly 
follow the procedures and [ ] did not notify the appropriate 
persons who had access to the transmitters on the KEKB tower.''24  
According to the tower climber, he had been on the tower for 
approximately forty minutes when he felt a burning sensation on 
his lower legs.  A few minutes later, the tower climber stated 
that he saw smoke coming from the bottom of his suit.  The tower 
climber immediately began to climb approximately forty feet down 
the tower.  

     11.  Agents from the Denver Field Office, in consultation 
with the Commission's Office of Engineering and Technology 
(``OET''), performed calculations to determine what level of RFR 
the tower climber may have been exposed to on June 5, 2003.  The 
occupational RFR MPE limit for facilities, operations or 
transmitters, such as FM transmitters, in the 30 to 300 MHz range 
is 1.0 mW/cm2.25  Assuming, as the Cumulus engineer states, that 
both KBKL(FM) and KMXY(FM) came back on at the same time, the 
tower climber could have been exposed to levels of RFR of 184 
mW/cm2  which is 18,400% of the occupational RFR MPE limit.26  If 
only one of the stations had come back on, the tower climber 
could have been exposed to levels of 92 mW/cm2 which is 9,200% of 
the occupational RFR MPE limit.27  Even taking into account the 
fifteen-fold safety factor of the tower climber's protective 
suit, the tower climber still could have been exposed to RFR 
above the occupational MPE limits.  Considering Cumulus' 
acknowledgement that it failed to keep its transmitters from 
coming back on while the tower climber was on the tower, and 
taking into account the calculated RFR levels given off by the 
KBKL(FM)/ KMXY(FM) diplexed antenna, it appears that Cumulus 
exposed the tower climber to levels of RFR greatly exceeding the 
occupational MPE limits.

     12.  Cumulus, by its employees, was responsible for and 
appropriately powered down the transmitters on the Cumulus tower 
when the tower climber stated that his personal RFR meter was 
reading RFR limits above the occupational MPE limit, which 
indicates Cumulus was aware of the potential of RFR exposure to 
the tower climber.  Cumulus, by its employees, was also 
responsible for powering on one or more of the transmitters on 
the tower while the climber was performing maintenance on the 
tower.  The powering on of one or more of the transmitters 
without warning to the tower climber while the tower climber was 
in the proximity of the antennas resulted in Cumulus apparently 
exposing the tower climber to levels of RFR exceeding the 
occupational/controlled MPE limit.  Based on the evidence before 
us, we find that the Cumulus apparently willfully violated 
Section 1.1310 of the Rules on June 5, 2003, by exposing the 
tower climber to levels of RFR exceeding the 
occupational/controlled MPE limit permitted by the Commission.

     13.  The Commission's Forfeiture Policy Statement and 
Amendment of Section 1.80(b) of the Rules to Incorporate the 
Forfeiture Guidelines (``Forfeiture Policy Statement'')28 does 
not specify a base forfeiture for violation of the RFR maximum 
permissible exposure limits in Section 1.1310.29  However, we 
previously determined that an appropriate base forfeiture amount 
for violation of the RFR MPE limits is $10,000, noting the public 
safety nature of the rules.30  We propose the $10,000 base 
forfeiture amount for Cumulus, licensee of KEKB(FM), KBKL(FM) and 
KMXY(FM), for producing power density levels in excess of the 
occupational levels stated in section 1.1310 of the Rules and for 
failing to take measures to adequately prevent a worker from 
accessing areas that exceeded the RFR exposure limits.

     14.  In assessing the proposed monetary forfeiture amount, 
we must also take into account the statutory factors set forth in 
Section 503(b)(2)(D) of the Act, which include 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.31  We believe that the seriousness of the 
safety violation warrants the proposed forfeiture amount of 
$10,000.  Accordingly, applying the Forfeiture Policy Statement, 
Section 1.80, and statutory factors to the instant case, we 
conclude that Cumulus is apparently liable for a $10,000 
forfeiture.

IV.        ORDERING CLAUSES

     15.  Accordingly, IT IS ORDERED that, pursuant to Section 
503(b) of the Communications Act of 1934, as amended, and 
Sections 0.111, 0.311, and 1.80 of the Commission's Rules, 
Cumulus Licensing, LLC, licensee of KEKB(FM), KBKL(FM) and 
KMXY(FM), is hereby NOTIFIED of this APPARENT LIABILITY FOR A 
FORFEITURE in the amount of ten thousand dollars ($10,000) for 
violations of Section 1.1310 of the Rules.32 

     16.  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, Cumulus 
Licensing LLC SHALL PAY the full amount of the proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

     17.  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 Forfeiture Collection Section, 
Finance Branch, Federal Communications Commission, P.O. Box 
73482, Chicago, Illinois 60673-7482.  Payment by overnight mail 
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor 
Mailroom, Chicago, IL 60661.   Payment by wire transfer may be 
made to ABA Number 071000013, receiving bank Bank One, and 
account number 1165259.

     18.  The response, if any, must be mailed to Federal 
Communications Commission, Enforcement Bureau, Western Region, 
Denver Field Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood, 
Colorado, 80226, and must include the NAL/Acct. No. referenced in 
the caption.

     19.  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.

     20.  Requests for payment of the full amount of this Notice 
of Apparent Liability for Forfeiture under an installment plan 
should be sent to: Chief, Revenue and Receivable Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.33

     21.  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 Cumulus 
Licensing LLC, 3535 Piedmont Road, Building 14, 14th Floor, 
Atlanta, Georgia, 30305.




                                FEDERAL COMMUNICATIONS 
COMMISSION





                                Nikki P. Shears
                                District Director
                                Denver District Office
                                Western Region
                                Enforcement Bureau

_________________________

147 C.F.R.  1.1310.  See also Guidelines for Evaluating the 
Environmental Effects of Radiofrequency Radiation, Report and 
Order, ET Docket No. 93-62, 11 FCC Rcd 15123 (1996), recon. 
granted in part, First Memorandum Opinion and Order, 11 FCC Rcd 
17512 (1996), recon. granted in part, Second Memorandum Opinion 
and Order and Notice of Proposed Rulemaking, 12 FCC Rcd 13494 
(1997) (``Guidelines'').

247 U.S.C.  503(b).

3See 47 C.F.R.  1.1310, Table 1.  The MPE limits are generally 
based on recommended exposure guidelines published by the 
National Council on Radiation Protection and Measurements 
(``NCRP'') in ``Biological Effects and Exposure Criteria for 
Radiofrequency Electromagnetic Fields,'' NCRP Report No. 86, 
Sections 17.4.1, 17.4.1.1., 17.4.2, and 17.4.3 (1986).  In the 
frequency range from 100 MHz to 1500 MHz, the MPE limits are also 
generally based on guidelines contained in the RF safety standard 
developed by the Institute of Electrical and Electronics 
Engineers, Inc. (``IEEE'') and adopted by the American National 
Standards Institute (``ANSI'') in Section 4.1 of ``IEEE Standard 
for Safety Levels with Respect to Human Exposure to Radio 
Frequency Electromagnetic Fields, 3 kHz to 300 GHz,'' ANSI/IEEE 
C95.1-1992 (1992).  Power density is equal to the square of the 
electric field strength divided by the characteristic impedance 
of free space (377 ohms).  Similarly, power density is equal to 
the square of the magnetic field strength times the 
characteristic impedance of free space.  The power density is 
expressed in milliwatts per square centimeter.  Guidelines, 
Second Memorandum Opinion and Order and Notice of 
4
5
6According to the Commission's records, ASRN 1022763 is located 
at 39 3? 56? north latitude and 108 44? 54? west longitude near 
Fruita, Colo
7April 8, 2004 
8Supplement at Exhibit 1.

9200 feet is equivalent to 60.96 meters. 
10The suit was made by Euclid Garment Manufacturing Company, 
http://euclidgarment.com/KWBrochure.pdf. When the hood is removed 
in RFR environments where transmitters operate in frequency 
ranges below 500 MHz, the suit is rated for use in up to fifteen 
times the occupational RFR MPE limit.  

11February 4, 2004 Letter of Inquiry from Nikki P. Shears, 
District Director, Denver Field Office to Cumulus Licensing 
Corporation (``LOI'').

12March 5, 2004 letter from Mark N. Lipp, Vinson & Elkins to 
Nikki P. Shears, Federal Communications Commission 
(``Response'').

13April 8, 2004 letter from Mark N. Lipp, Vinson & Elkins to 
Nikki P. Shears, Federal Communications Commission 
(``Supplement'').

14Response at Exhibit 4, Exhibit 5.

15Response at Exhibit 5.  According to Cumulus, KEKB(FM), 
KBKL(FM) and KMXY(FM) are the only stations on the KEKB tower. 
Response at 3.

16Response at Exhibit 5.

17Response at Exhibit 5.

18Response at Exhibit 4, Exhibit 5.
 
19Response at Exhibit 5.  The Program Director at KBKL stated 
that on the morning of June 5, 2003 he received calls from 
listeners complaining that about the low quality of the KBKL(FM) 
signal.  The Program Director called the transmitter site and 
queried the system which indicated that the main transmitters 
were not at full power for KBKL(FM), KMXY(FM) and, he believed,  
KEKB(FM).  He then ``reset the KBKL transmitter and it began to 
power up, but when [he] rechecked it after a few minutes it was 
off.''  He stated that he was unable to reset the KMXY(FM) 
transmitter.  He attempted to contact the chief engineer who did 
not answer his phone.  After a few more minutes, the Program 
Director called the transmitter site again, queried the system, 
found that ``[a]ccording to the system, all of the stations were 
operating at normal power.''  Response at Exhibit 6. 
 
20Response at 2 and 4; Supplement at 1.  Cumulus also submitted 
an RFR and Environmental Assessment Study for ground level RFR 
exposure as Exhibit 1 to the Supplement. 

21Section 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).  

2247 C.F.R.  1.1310.

23Response at Exhibit 5.

24Response at Exhibit 5.

25Table 1 of Section 1.1310 specifies the applicable MPE limits 
in terms of power density (mW/cm2) for FM  transmitters. 

26This calculated RFR level assumes operation by the diplexed 
stations KBKL(FM) and KMXY(FM) at 100% power.  Each station is 
licensed to broadcast at 100 kW effective radiated power.  There 
is no indication in the Cumulus Response or Supplement that the 
stations came back on the air at anything less than their full 
licensed power.

27This calculated RFR level assumes operation by either KBKL(FM) 
or KMXY(FM) at 100% power only. 

28Forfeiture Policy Statement and Amendment of Section 1.80(b) of 
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 
17087 (1997), recon denied, 15 FCC Rcd 303 (1999).

29The fact that the Forfeiture Policy Statement does not specify 
a base amount does not indicate that no forfeiture should be 
imposed.  The Forfeiture Policy Statement states that ``... any 
omission of a specific rule violation from the ... [forfeiture 
guidelines] ... should not signal that the Commission considers 
any unlisted violation as nonexistent or unimportant.  Forfeiture 
Policy Statement, 12 FCC Rcd at 17099.  The Commission retains 
the discretion, moreover, to depart from the Forfeiture Policy 
Statement and issue forfeitures on a case?by?case basis, under 
its general forfeiture authority contained in Section 503 of the 
Act.  Id.

30A-O Broadcasting Corporation, 17 FCC Rcd 24184 (2002).

3147 U.S.C.  503(b)(2)(D).

3247 C.F.R.  0.111, 0.311 1.80 and 1.1310.

33See 47 C.F.R.  1.1914.