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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 )
Grand Junction, Colorado )
Facility ID # 5550 )
Grand Junction, Colorado )
Facility ID # 30430 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the District Director, Denver District Office, Western Region,
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).
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
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
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
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
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
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
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
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.
Nikki P. Shears
Denver District Office
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
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, 188.8.131.52., 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
6According to the Commission's records, ASRN 1022763 is located
at 39º 3? 56? north latitude and 108º 44? 54? west longitude near
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
12March 5, 2004 letter from Mark N. Lipp, Vinson & Elkins to
Nikki P. Shears, Federal Communications Commission
13April 8, 2004 letter from Mark N. Lipp, Vinson & Elkins to
Nikki P. Shears, Federal Communications Commission
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
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
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.