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

In the Matter of                 )
                                 )
Visionary Related Entertainment, )                   File Number: 
L.L.C.                           )           EB-04-HL-049
                                 )
Licensee of FM Broadcast Station )                      NAL/Acct. 
KAOI-FM                          )         No. 200532860001
Wailuku, Hawaii                            FRN: 0005410295
Facility ID #70375



             NOTICE OF APPARENT LIABILITY FOR FORFEITURE


                                              Released:  February 
                                                          4, 2005

By the Resident Agent, Honolulu Resident Agent Office, Western 
Region, Enforcement Bureau:

I.   INTRODUCTION

      1.  In this Notice of Apparent Liability for Forfeiture 
 ("NAL"), we find that Visionary Related Entertainment, L.L.C. 
 (``Visionary''), licensee of FM Broadcast station KAOI-FM, in 
 Wailuku, Hawaii, apparently willfully and repeatedly 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 Visionary is apparently liable for a forfeiture in the 
 amount of ten thousand dollars ($10,000).  We also consider a 
 complaint filed by D.T. Fleming Arboretum and Martha Vockrodt-
 Moran against Visionary.

II.  BACKGROUND

     2.   The RFR Rules.  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  Licensees can demonstrate compliance by restricting 
public access to areas where RFR exceeds the public MPE limits.6 

     3.   The MPE limits specified in Table 1 of Section 1.1310 
are used to evaluate the environmental impact of human exposure 
to RFR and apply to ``...all facilities, operations and 
transmitters regulated by the Commission.''7  Table 1 provides 
that the general population RFR maximum permissible exposure 
limit for a station operating in the frequency range of 30 MHz to 
300 MHz is 0.200 mW/cm2.8  Broadcast stations that filed 
applications after October 15, 1997, for an initial construction 
permit, license, renewal or modification of an existing license 
were required to demonstrate compliance with the new RFR MPE 
limits, or to file an Environmental Assessment and undergo 
environmental review by Commission staff.9  In addition, all 
existing licensees were required to come into compliance with the 
new RFR MPE limits by September 1, 2000, or to file an 
Environmental Assessment.10

     4.   On July 19, 2004, Visionary filed an application to 
modify KAOI-FM's antenna height from the licensed height of 25 
meters AGL to 14 meters AGL.11  Visionary also proposed modifying 
KAOI-FM's licensed effective radiated power from 100 kW to 55 kW.  
This application was dismissed on November 18, 2004.12  As part 
of the application, Visionary indicated that it was unable to 
certify that ``the facility will not have a significant 
environmental impact and complies with the maximum permissible 
radiofrequency electromagnetic exposure limits for controlled and 
uncontrolled environments.''13  Visionary attached a ``detailed 
explanation of the RFR situation at the KAOI-FM site'' as part of 
the application.  In the explanation, Visionary stated that the 
current antenna system, operating at 100 kW, at a height of 14 
meters above ground, ``produces a maximum field intensity of 
4614.37 microwatts per squared centimeter at a distance of 2.8 
meters from the base of the tower.''14

     5.   On September 7, 2004, a Honolulu agent spoke to the 
President of Visionary, and requested that KAOI-FM be made 
available for inspection on September 8, 2004.  The Honolulu 
agent was later informed by the station engineer that KAOI-FM was 
running at reduced power due to transmitter technical problems.  
On October 14, 2004, the Honolulu Office issued a Letter of 
Inquiry (``LOI'') to Visionary regarding reduced power operations 
throughout calendar year 2004.  Visionary's October 26, 2004 
response delineated a series of eight separate instances between 
January and October of 2004 when equipment issues resulted in 
reduced power operations.  In a supplemental November 2, 2004 
response to the LOI, Visionary stated that the station had been 
operating at full licensed power levels since October 29, 2004, 
and pledged to notify the Honolulu Office of any further 
problems.

          6.   On October 20, 2004, Martha Vockrodt-Moran, along 
with the D.T. Fleming Arboretum, filed a complaint with the 
Commission's Enforcement Bureau requesting that the Bureau 
``order KAOI-FM to cease transmitting because it operations pose 
a significant threat to health and safety.''15  Specifically, the 
complaint alleged that ``for the past fourteen years, [Visionary] 
has operated KAOI in violation of the RF exposure rules'' and 
that the property adjacent to the KAOI transmitter site ``is 
regularly used by Arboretum workers, residents, children, campers 
and hikers.''16  Visionary filed a Motion to Dismiss the 
Complaint on December 14, 2004.17  Vockrodt-Moran and the 
Arboretum filed a response to the Motion to Dismiss on December 
23, 2004.18

     7.   Honolulu agents inspected the KAOI-FM facility on 
November 17, 2004, accompanied by KAOI-FM station engineers, as 
well as a broadcast consultant.  KAOI-FM is authorized to operate 
with 100 kW ERP.  The KAOI-FM antenna system is a Jampro JHPC-8, 
eight bay circular ``Double V'' antenna, mounted on a 25 meter/83 
foot tall wooden pole at the edge of a cinder cone building 
overlooking a steep hilltop.  A roadway passes within 30 feet of 
the KAOI-FM antenna.  The roadway is gated on both entrances to 
the antenna.  There is a locked gate on the access road north of 
the transmitter site that bars routine public vehicular access to 
the entire area. A portion of the D.T. Fleming Arboretum 
property, Ulupalakua, Maui, is adjacent to the site, and 
Arboretum visitors and maintenance personnel are able to access 
the area.   A second gate, bordering on Arboretum property and 
limiting access between the transmitter site area and the 
Arboretum property, is approximately 35 to 42 feet south of the 
antenna.  A cell tower with multiple antennas is located 
approximately 100 feet east of the KAOI-FM antenna site.   
Although vehicular access to the antenna site is restricted by 
means of a locked gate, pedestrian access is not restricted, and 
there is a private residence past the locked gate.
  
     8.   The agents observed no fence restricting public access 
to the antenna support pole, and no RFR warning signs posted.  
The KAOI-FM transmitter was running at a power output of 96,732 
watts, a representative level in view of the mountaintop 
commercial power fluctuations.  The agents employed a personal RF 
monitor to initially identify a seventy foot long, twenty foot 
wide area in front of the transmitter building with potential 
high RFR levels.19    Measurements were conducted at four 
locations using a calibrated meter.  The measurements employed a 
spatial averaging measurement technique, where measurements in 
four quadrants are averaged to give a representative reading for 
each location.20  Public RFR MPE levels were exceeded in a twenty 
foot by ten foot rectangular area in front of the antenna support 
pole.  Measurements indicated RFR levels of 1.2 mW/cm2 or 609% of 
the public RFR MPE levels in areas within three feet of the 
pole.21  Agents repeated the measurements at the same four 
designated locations with the transmitter running at a reduced 
output power of 56,350 watts.  Measurements indicated RFR levels 
of 0.48 mW/cm2 or 240% of the public RFR MPE levels in the areas 
of the immediate vicinity of the support pole.  At the conclusion 
of the inspection, the station engineers reduced the transmitter 
power and stated that the station would operate at a reduced 
power level until the RFR issue was resolved.  The station 
engineers informed the agents that the station intended to 
install fencing to restrict public access, and also intended to 
submit a request for special temporary authority (``STA'') to 
operate at reduced power levels.22  A review of Commission 
records reveals that no STA request has been filed regarding 
KAOI-FM during the last twelve months.23
 
III.      DISCUSSION

     III.A.    Visionary's Apparent Violation  of Section  1.1310 
          of the Rules

     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.24  The term 
``repeated'' means the commission or omission of such act more 
than once or for more than one day.25 

     10.  Section 1.1310 of the Rules requires licensees to 
comply with RFR exposure limits.26 Table 1 in Section 1.1310 of 
the Rules provides that the general population RFR maximum 
permissible exposure limit for a station operating in the 
frequency range of 30 MHz to 300 MHz is 0.200 mW/cm2.  

     11.  As part of the July 2004 Application, filed on July 19, 
2004, Visionary was unable to certify that the facility complied 
with the maximum permissible radiofrequency electromagnetic 
exposure limits for controlled and uncontrolled environments, and 
attached a detailed explanation of the RFR situation at the KAOI-
FM site as part of the application.  Specifically, Visionary 
predicted that its antenna system produced a maximum field 
intensity of 4.6 mW/cm2 within nine feet of the base of the 
tower.  According to the supplemental November 2, 2004, response 
filed by Visionary to a Honolulu Office LOI, KAOI-FM had been at 
``normal power'' of approximately 100 kW since October 29, 2004.  
On November 17, 2004, Honolulu agents took actual field 
measurements and found publicly accessible areas measuring 1.2 
mW/cm2 or 600% of the public RFR MPE limits within three feet of 
the KAOI-FM antenna tower.  The area found to exceed the public 
MPE limits, which included the KAOI-FM antenna support pole, was 
not enclosed within protective fencing, and no RFR warning signs 
were posted.  As of December 14, 2004, Visionary indicated that 
it was in the process of building a four foot fence coming out 
from the tower.

     12.  Although vehicular access to the site was restricted by 
means of a locked gate, pedestrian access was relatively 
unrestricted, and there is a private residence past the locked 
gate.  In addition, D.T. Fleming Arboretum visitors and 
maintenance personnel can access the area.  We therefore find 
that Visionary did not restrict public access to an area where 
RFR exceeded the public MPE limits between October 29, 2004 and 
November 17, 2004.  Visionary bears the responsibility to 
restrict access to areas that exceed the RFR limits or to modify 
the facility and operation so as to bring the station's operation 
within the RFR exposure limits prior to public or worker access 
to the impacted area.27  Visionary apparently took no action to 
comply with public RFR MPE limits within this time span, although 
it is evident from their July 2004 Application that they were 
aware of their responsibilities.28  Visionary acknowledges in the 
July 2004 Application that the RFR level in close proximity to 
the antenna site exceeded the public MPE, therefore, Visionary's 
violation is willful.  The violation occurred on more than one 
day, therefore, it is repeated.
 
     13.  Based on the evidence before us, we find that Visionary 
apparently willfully and repeatedly violated Section 1.1310 of 
the Rules29 by exceeding the public RFR MPE limits in a publicly 
accessible area and by failing to adequately take measures to 
prevent the public from accessing an area that exceeded the RFR 
exposure limits.  

     14.  The Commission's Forfeiture Policy Statement and 
Amendment of Section 1.80(b) of the Rules to Incorporate the 
Forfeiture Guidelines (``Forfeiture Policy Statement'')30 does 
not specify a base forfeiture for violation of the RFR maximum 
permissible exposure limits in Section 1.1310.31  However, the 
Commission has determined that an appropriate base forfeiture 
amount for violation of the RFR MPE limits is $10,000, reflecting 
the public safety nature of the rules.32  

     15.  We propose the $10,000 base forfeiture amount for 
Visionary, who apparently failed to comply with Section 1.1310 of 
the Rules, failed to take measures to adequately prevent the 
public from accessing areas that exceeded the RFR exposure 
limits, and produced power density levels exceeding the public 
MPE limits.  Consequently, it is appropriate to hold Visionary 
apparently liable for a $10,000 forfeiture.  

     16.  In assessing the 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 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.33  Applying the Forfeiture Policy Statement, Section 
1.80, and the statutory factors to the instant case, we conclude 
that Visionary is apparently liable for a $10,000 forfeiture.

     17.  We also direct Visionary to file, within 30 days of 
release of this NAL, a sworn statement describing: 1) what, if 
any, steps it took between July, 2004, and November, 2004, to 
ensure compliance with the Commission's RFR Rules at the KAOI-FM 
transmitter site; 2) what, if any, steps it has taken since the 
Honolulu agents' inspection in November, 2004, to ensure 
compliance with the Commission's RFR Rules at the site; and 3) 
its current plan to ensure compliance with the Commission's RFR 
Rules at the site.  The statement must be filed with the response 
to this NAL, or separately if Visionary does not respond and pays 
the proposed forfeiture.  Further, we direct Visionary to place a 
copy of this plan in the KAOI-FM Public Inspection File.

     III.B.    Complaint of  D.T.  Fleming Arboretum  and  Martha 
          Vockrodt-Moran

     18.  The Complaint filed by the Arboretum and Vockrodt-Moran 
(``Complainants'') requests that the ``Enforcement Bureau order 
KAOI to immediately cease operation until the Bureau has 
determined the facts and circumstances surrounding the radiation 
exposure to humans in close proximity to the antenna . . . .''34  
In its Motion to Dismiss the Complaint, Visionary states that the 
Complaint contains substantially the same allegations as an 
informal objection filed by the Arboretum and Vockrodt-Moran 
against Visionary's July 2004 Application, and that it should be 
dismissed to avoid duplicative proceedings.35  In their Response 
to the Motion to Dismiss, the Complainants argue that the 
pleadings are not duplicative and that the Bureau should order 
Visionary to reduce power, cease operations, or at ``the very 
least'' give Visionary ``a substantial fine.''36 

     19.  We will consider the Complainants' Complaint as an 
informal request for action pursuant to Section 1.41 of the 
Commission's Rules.37  The investigation that culminated in this 
NAL began prior to the filing of the Complaint.  However, at 
least one of the remedies requested by the Complainants, that of 
a substantial fine, is being proposed against Visionary.  This 
remedy is consistent with our proceedings under the RFR Rules.38  
In addition, we are requiring Visionary to file a plan detailing 
its efforts to comply with the RFR Rules, and to place a copy of 
the plan in the KAOI-FM Public Inspection File, so that members 
of the public, like the Complainants, may view it.  Because we 
have already begun enforcement action against Visionary for its 
apparent violation of the Commission's RFR Rules, we dismiss the 
Complaint.

IV.  ORDERING CLAUSES

     20.  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, 
Visionary Related Entertainment L.L.C. 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.39

     21.  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, Visionary 
Related Entertainment, L.L.C. SHALL PAY the full amount of the 
proposed forfeiture or SHALL FILE a written statement seeking 
reduction or cancellation of the proposed forfeiture.

     22.  IT IS FURTHER ORDERED that, the Complaint of the D.T. 
Fleming Arboretum and Martha Vockrodt-Moran, against Visionary 
Related Entertainment, L.L.C. IS DISMISSED.

     23.  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.

     24.  The response, if any, must be mailed to Federal 
Communications Commission, Enforcement Bureau, Western Region, 
Honolulu Resident Agent Office, P.O. Box 971030, Waipahu, HI 
96797-1030, and must include the NAL/Acct. No. referenced in the 
caption.  

     25.  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.  

     26.  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 Receivables Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.40

     27.  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 Visionary 
Related Entertainment L.L.C. 


                              FEDERAL COMMUNICATIONS COMMISSION




                              John R. Raymond
                              Resident Agent
                              Honolulu 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).

447 C.F.R.  1.1310, Note 1 to Table 1.  

547 C.F.R.  1.1310, Note 2 to Table 1.

6See, for example, OET Bulletin 65.

7See 47 C.F.R.  1.1307(b), 1.1307(b)(1), 1.1310.
8
47 C.F.R.  1.1310.
9
Guidelines, Second Memorandum Opinion and Order and Notice of 
Proposed Rulemaking, 12 FCC Rcd at 13538; 
47 C.F.R.  1.1307(b). 
10
Guidelines, Second Memorandum Opinion and Order and Notice of 
Proposed Rulemaking, 12 FCC Rcd at 13540; 47 C.F.R.  
1.1307(b)(5).   See also, Public Notice, Year 2000 Deadline for 
Compliance with Commission's Regulations Regarding Human Exposure 
to Radiofrequency Emissions (released Feb. 25, 2000); Public 
Notice, Erratum to February 25, 2000 Public Notice, 15 FCC Rcd 
13600 (released April 27, 2000); Public Notice, Reminder of 
September 1, 2000, Deadline for Compliance with Regulations for 
Human Exposure to Radiofrequency Emissions, 15 FCC Rcd 18900 
(released Aug. 24, 2000).

11See File No. BPH-20040716ABZ, accepted July 19, 2004 (``July 
2004 Application'').  During an inspection on January 26, 2004, 
Honolulu agents observed that the KAOI-FM's antenna height of 
radiation center above ground level (AGL) was approximately 14 
meters, as opposed to the authorized 25 meters.  Consequently, 
the Honolulu Resident Agent Office issued a Notice of Violation 
(``NOV'') to Visionary on February 26, 2004, for modifying the 
KAOI-FM transmission systems without authorization pursuant to 47 
C.F.R.  73.1690(c)(1).  Visionary responded to the NOV on April 
19, 2004, stating that the authorized center of radiation of 25 
meters, as shown on the Commission's data base, was a typo or 
transposition and that it would take action to correct the error. 
Visionary also states, in the July 2004 Application that a 1995 
license grant to Visionary used parameters underlying an older 
construction permit, and that the license issued by the 
Commission on October 19, 1995 contained the alleged 
typographical error. July 2004 Application, Engineering Statement 
at p. 1 - 2. Commission's records reveal, however, that in 
correspondence dated October 18, 1995, John Detz, President, KAOI 
Radio Group, wrote that ``item 9 d [radiation center above 
ground] on Form 302-FM, page 4 as corrected should read the 
accurate 25 meters RCAGL.''  Letter of John Detz to Dan Fontaine, 
Federal Communications Commission, October 18, 1995.  
12See ``Media Bureau Announces Dismissal of Unamended Form 301, 
314, and 315 AM and FM Applications'' (DA 04-3647, Released 
November 18, 2004.) (``Public Notice'').  According to the Public 
Notice, the application was dismissed pursuant to Section 
73.3568(a)(1) of the Commission's Rules for failure to prosecute.  
Specifically, Visionary failed to amend its application to show 
compliance with the new local ownership rules or to request a 
waiver of those rules.  Visionary filed a petition for 
reconsideration of the dismissal on December 15, 2004.
13July 2004 Application, Item 17.
14July 2004 Application, Engineering Statement at p. 3.  4614.37 
microwatts per squared centimeter is equivalent to 4.614 mW/cm2.  
15Complaint of D.T. Fleming Arboretum and Martha Vockrodt-Moran, 
filed October 20, 2004 (``Complaint'').  Ms. Vockrodt-Moran had 
previously telephoned the Honolulu resident Agent Office in 
November, 2003, about the potential RFR hazards from the KAOI-FM 
antenna.  She also filed informal complaints in August, 2004. 
16Complaint at 5. 
17Visionary Related Entertainment LLC Motion to Dismiss 
Complaint, filed December 14, 2004 ``(Motion to Dismiss''). 
18Response of D.T. Fleming  Arboretum and Martha  Vockrodt-Moran, 
filed December 23, 2004 (``Response''). 
19The personal RF monitor LED lit continually throughout this 
area, and the unit emitted an audible warning, indicating the RFR 
in the area likely exceeded the public RFR MPE.   
20The result was then multiplied by a probe calibration factor of 
0.58 for measurements in the 100 MHz FM band.  
21The area in the immediate vicinity of the antenna support  pole 
also exceeded the occupational RFR MPE limits, with a reading  of 
122%. 
22 In the Motion to Dismiss, filed December 14, 2004, Visionary 
notes that its engineers met with the Honolulu agents on November 
17, 2004, to take RFR measurements and that Visionary is 
``constructing a four foot fence extending out from the tower 
site as an added buffer, which construction should be completed 
shortly.'' Motion to Dismiss at 4.  On January 17, 2005, 
Visionary notified the Commission's Honolulu Office that they had 
``constructed a fence at the base of the tower that complies with 
the full Class C power level at the currently licensed 
allocation.''  Letter of Visionary Related Entertainment to 
Federal Communications Commission, Honolulu Office, January 17, 
2005. 
23Despite Visionary's response to the LOI, and the station 
engineers' statement to the Honolulu agents on November 17, 2004, 
Visionary has not filed any requests for STA with the Commission 
for KAOI-FM during the past year.  
24Section 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).
25
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.''
 
2647 C.F.R.  1.1310.

2747 C.F.R.   1.1307(b)(1),  1.1307(b)(5), 1.1310.   Additional 
guidance is provided in OET Bulletin 65.

28The July 2004 Application Engineering Statement states that 
``[b]ecause the predicted field intensity exceeds the maximum 
levels for controlled and uncontrolled exposure at ground level, 
procedures for the existing and proposed facilities will help 
bring the facility into compliance . . .''  Engineering Statement 
at p.4  The Engineering Statement also indicates that ``[p]roper 
RF Warning signs and a full list of RF safety procedures for 
tower maintenance posted on site should be sufficient to satisfy 
Federal Regulations concerning the controlled/occupied [sic] 
standards.'' Id.  During the November 17, 2004 inspection, the 
Honolulu agents found no signs warning the public or workers of 
RFR in the vicinity of the antenna system or even on the antenna 
support pole. 
29 47 C.F.R. 1.1310
30
Forfeiture 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).
31
The 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.

32A-O Broadcasting Corporation, 17 FCC Rcd 24184 (2002).

3347 U.S.C.  503(b)(2)(D).

34Complaint at 5. 
35Motion to dismiss at 1. 
36Response at 2. 
3747 C.F.R.   1.41.
38See, e.g., Radio One, et al, 2004 WL 2848616 (FCC 04-281, 
Released December 10, 2004).

3947 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 0.314, 1.80, 
1.1310.
40
 See 47 C.F.R.  1.1914.