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


In the Matter of                )       
                                )       
Americom Las Vegas Limited Partnership  )    File  No.  EB-02-DV-
094
                                )
Licensee of FM Radio Station KWNZ       )    NAL/Acct.        No. 
200332800006
Carson City, Nevada             )       FRN 0003-7662-92
Facility ID # 53706             )       
                                
                        FORFEITURE ORDER

Adopted:  May 26, 2004             Released:  May 28, 2004

By the Chief, Enforcement Bureau:

                         I.  Introduction

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary  forfeiture  in  the  amount  of  ten  thousand  dollars 
($10,000)   to   Americom    Las   Vegas   Limited    Partnership 
(``Americom''), licensee of FM  radio station KWNZ, Carson  City, 
Nevada, for willful and repeated  violation of Section 1.1310  of 
the Commission's Rules (``Rules'').1 The noted violations involve 
Americom's failing  to  comply  with  radio  frequency  radiation 
(``RFR'')   maximum   permissible   exposure   (``MPE'')   limits 
applicable to transmitters on towers.

2.        On November 22,  2002, we issued  a Notice of  Apparent 
Liability for Forfeiture (``NAL'')  to Americom for a  forfeiture 
in the amount of ten thousand dollars ($10,000).2  Americom filed 
its response to the NAL on December 23, 2002.

                         II.  Background

3.        KWNZ's transmission facilities are located on McClellan 
Peak, near Carson City, Nevada.  On November 6, 2001, agents from 
the  FCC's  San  Francisco,   California,  Field  Office   (``San 
Francisco Office'') conducted a site inspection at the  McClellan 
Peak antenna  site.   The McClellan  Peak  site is  on  unfenced, 
publicly accessible  property  managed  by  the  Bureau  of  Land 
Management (``BLM''), located at the junction of three  counties, 
Storey, Washoe,  and Lyon  Counties, approximately  4  kilometers 
northeast of Carson City.  There are 13 broadcast stations  which 
transmit from the  McClellan Peak site.   During the November  6, 
2001 inspection, the  personal RFR  monitors worn  by the  agents 
began to  alarm while  in the  vicinity of  the KWNZ  transmitter 
site.  The personal RFR monitors are designed by the manufacturer 
to begin alarming when  RFR exposure levels  reach 50 percent  of 
the Commission's occupational  exposure limit.  The  occupational 
exposure limit is  five times  greater than  the public  exposure 
limit.  Thus, the alarming appeared  to indicate that there  were 
RFR levels in excess of the  MPE limit for the general public  in 
the vicinity of the KWNZ transmitter.  

4.         On  May  1, 2002,  the  FCC's Denver,  Colorado  Field 
Office (``Denver Office'') issued  a Letter of Inquiry  (``LOI'') 
to Americom and 12 other broadcast licensees which transmit  from 
the McClellan Peak site regarding RFR compliance at the site  and 
advising that a site inspection would take place on May 15, 2002.

5.         On May 14,  2002, FCC agents from  the Denver and  San 
Francisco Offices conducted preliminary measurements in  publicly 
accessible  areas  throughout  the  McClellan  Peak  site.    The 
preliminary measurements indicated that  the RFR levels in  those 
areas exceeded the MPE limit for the general public.  On May  15, 
2002,  the  agents  returned  to  the  McClellan  Peak  site  and 
conducted  additional   measurements.    The  site   was   easily 
accessible to 4-wheel  drive vehicles  from a  public gravel  and 
dirt roadway  off Goni  Road.  Two  commercial gravel  pits  were 
located along  the  gravel  roadway  to  the  site.   An  ungated 
internal dirt road led from the gravel roadway to the site,  with 
multiple branches to reach  the various antenna structures.   The 
agents observed that there were trails for off-road 4-wheel drive 
vehicles and  all terrain  vehicles (``ATVs'')  along the  gravel 
roadway and at the site itself.  The agents also observed members 
of the public  driving ATVs,  ATV tire tracks,  a campfire  ring, 
beer and wine bottles, and  other trash indicative of public  use 
of the BLM site. 

6.         The measurements taken by the agents on May 15,  2002, 
indicated that there were RFR fields in publicly accessible areas 
at ground  level  that exceeded  the  FCC's MPE  limits  for  the 
general public.  The agents  found spatially averaged RFR  fields 
measuring 0.284  mW/cm2, which  exceeds the  MPE limits  for  the 
general public  by  42%,  in  unfenced  areas  between  the  KWNZ 
transmitter building and  the KWNZ  antenna tower.3   On May  15, 
2002, at the request of the agents, KWNZ temporarily powered down 
to enable the agents to determine if there were other significant 
RFR contributors in the primary 10 square foot area identified as 
exceeding the  limits.   While KWNZ  was  powered down,  the  RFR 
fields in this primary area measured only 0.0115 mw/cm2 or  5.75% 
of the RFR MPE  limits for the general  public.  The agents  also 
requested two  other broadcasters  in the  immediate vicinity  to 
power down in  turn.  While  each of the  other broadcasters  was 
powered down, the measured RFR fields in the primary area did not 
change.  The agents determined, based on these measurements, that 
KWNZ was contributing over 94% of the measured RFR field and that 
KWNZ's operation alone  exceeded the MPE  limits for the  general 
public by  36% in  unfenced areas  between the  KWNZ  transmitter 
building and the KWNZ antenna tower.

7.        Americom submitted its response to  the LOI on June  7, 
2002.  As part of  the response, Americom  submitted a report  of 
RFR measurements conducted at the McClellan Peak site on May  15, 
2002, by  an Americom  consultant.  This  report shows  that  RFR 
fields in an unfenced  area adjacent to  the KWNZ tower  exceeded 
the MPE limits for  the general public  by 18%.  Americom  stated 
that out of an abundance of  caution, it has contracted for  this 
location  to  be  fenced  as  if  it  were  in  an   uncontrolled 
environment.

8.        On November  22, 2002,  we issued  the subject  NAL  to 
Americom for a forfeiture in  the amount of ten thousand  dollars 
($10,000).  In its response to the NAL, filed  December 23, 2002, 
Americom seeks cancellation of the proposed monetary  forfeiture.  
Americom argues that there is ``only circumstantial evidence'' of 
recent public use  of the  area near the  KWNZ transmitter  site; 
that there  is ``no  evidence  whatsoever of  public use  of  the 
particularized ten square foot area'' where Americom exceeded the 
RFR MPE limits; that Americom  has in ``good faith'' treated  the 
KWNZ  transmitter  site  as  a  ``controlled  environment''   and 
implemented a ``common sense''  approach to RFR compliance  which  
is consistent with OET Bulletin 654; and that, if it did  violate 
Section  1.1310  of  the  Rules,  the  appropriate  sanction   is 
admonishment.



                         III.   Discussion

9.        The forfeiture amount in this case is being assessed in 
accordance with Section 503(b) of the Communications Act of 1934, 
as amended  (``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,  12 
FCC Rcd  17087  (1997), recon.  denied,  15 FCC  Rcd  303  (1999) 
(``Policy Statement'').  Section 503(b) of the Act requires that, 
in  examining  Americom's  response,  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.7

10.       Section 1.1310  of the  Rules requires  that  licensees 
comply with RFR exposure limits. Table 1 in Section 1.1310 of the 
FCC's rules provides that  the public RFR MPE  limit for a  radio 
station operating  on channel  247 (97.3  MHz) is  0.200  mW/cm2.  
Based on the investigation  of the FCC agents,  we find that  the 
operation of  KWNZ  created  RFR fields  that  exceeded  the  RFR 
exposure  limits  for  the   public  in  an  unfenced,   publicly 
accessible area on both May 14 and 15, 2002.

11.       Americom   contends   that    the   less    restrictive 
occupational RFR exposure  limits apply to  the KWNZ  transmitter 
site because there is ``only circumstantial evidence'' of  recent 
public use  of  the area  near  the KWNZ  transmitter  site.   In 
particular, Americom asserts  that ``the remote  nature'' of  the  
KWNZ transmitter site  makes it an  unlikely destination for  the 
general public;  that  the NAL  ``fails  to establish  the  exact 
location and extent of  the trash, [campfire  ring] and ATV  tire 
tracks''; that its former  Chief Engineer  (1984-1998) has  never 
seen fire  rings  or trash  on  McClellan Peak  Ridge;  that  its 
current Chief Engineer  (1998-present) recently  looked for  fire 
rings and trash on  McClellan Peak Ridge but  could find no  fire 
rings and  ``only sparse  and  old'' trash  that was  ``no  where 
near'' the KWNZ  transmitter site;  and that the  trash and  tire 
tracks observed by FCC agents may  have been left by workers  who 
service the  transmission  facilities on  McClellan  Peak  Ridge.  
There is, in  fact, ample evidence  of recent public  use of  the 
area near the KWNZ transmitter site.  FCC agents observed:  trash 
in at least  four locations throughout  the approximately   mile 
long area on McClellan Peak  Ridge where the transmission  towers 
are located; ATV tracks throughout that area; and a campfire ring 
in the same area.  The trash observed by the FCC agents  included 
beer and wine bottles -- not the kind of trash likely to be  left 
by workers who service transmission facilities.  The tire  tracks 
observed by the FCC agents were ATV tracks; these tracks were not 
made by the kind  of vehicles that would  be used to service  the 
transmission sites on McClellan Peak Ridge.  Finally, the  agents 
also observed  ATV  use  by  at  least  two  drivers  during  the 
inspection of KWNZ.  We conclude that the public exposure  limits 
applied to the area in which Americom exceeded those limits.

12.       Americom also  contends  that there  is  ``no  evidence 
whatsoever of public  use of the  particularized ten square  foot 
area'' where Americom exceeded the RFR MPE limits.  To show  that 
the  public  exposure  limits  apply,  it  is  not  necessary  to 
establish actual public use of that area.  The public use of  the 
area near the  KWNZ transmitter site  is sufficient to  establish 
the applicability of the public exposure limits.

13.       In addition,  Americom asserts  that it  has in  ``good 
faith'' treated  the  KWNZ  transmitter site  as  a  ``controlled 
environment'' and implemented a ``common sense'' approach to  RFR 
compliance consistent  with  OET Bulletin  65.   In view  of  the 
public use of the area near  the KWNZ transmitter site, the  KWNZ 
transmitter site  was  accessible  to  the  general  public  and, 
therefore, not a  ``controlled environment.''  Furthermore,  even 
in those situations  where the remoteness  of a transmitter  site 
allows the licensee  to dispense  with fencing,  OET Bulletin  65 
indicates that warning signs at  the area of concern may  obviate 
the need  for fencing8;  there were,  however, no  warning  signs 
which applied to  the area  where Americom exceeded  the RFR  MPE 
limits.  Americom argues that  signs 10 - 15  feet from the  area 
affected by excessive  RFR were  sufficient to  warn the  public.  
When the  agents  took  the RFR  measurements,  they  looked  for 
warning signs; the only warning  signs they observed were at  the 
front of  the building  at KWNZ's  transmitter site,  where  they 
would not be  seen by  persons approaching the  area affected  by 
excessive RFR from  a different direction.   We find,  therefore, 
that Americom did not have signs sufficient to warn the public.

14.       Based on the evidence before us, we find that  Americom 
willfully9 and repeatedly10 violated Section 1.1310 of the  Rules 
by exceeding  the  RFR MPE  limits  for the  general  public  and 
failing to adequately  take measures to  prevent the public  from 
accessing areas that exceeded the RFR exposure limits. 

15.       Americom contends  that,  if  it  did  violate  Section 
1.1310 of the Rules, the  violation is minor and the  appropriate 
sanction is admonishment.  Specifically, Americom argues that its 
violation is ``more  technical in  nature than  a general  public 
safety threat'' and that,  compared to the  RFR violation in  A-O 
Broadcasting  Corporation,11  its  violation  is  ``comparatively 
insignificant.''  We do not agree.  Any significant violation  of 
those limits is a hazard  to human health.  Americom  contributed 
over 94% of  the RFR field  which exceeded the  MPE limit by  42% 
and, by itself, exceeded the RFR MPE limit by 36%  -- significant 
amounts.   We  find   that  a  monetary   forfeiture  -  not   an 
admonishment -- is the  appropriate sanction for this  violation.  
The Commission determined  in A-O  Broadcasting Corporation  that 
$10,000 is an appropriate base forfeiture amount for violation of 
the RFR MPE limits.   An RFR violation need not be as significant 
as  A-O   Broadcasting  Corporation's   violation12  to   warrant 
imposition of the  full $10,000  base forfeiture  amount. 13   We 
conclude Americom's  violation of  the  RFR MPE  limits  warrants 
imposition of the full base forfeiture amount.

16.       We  have  examined  Americom'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 Americom willfully and repeatedly violated  Section 
1.1310 of the Rules and that the appropriate forfeiture amount is 
$10,000.

                      IV.  Ordering Clauses

17.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
503(b) of the Act,  and Sections 0.111,  0.311 and 1.80(f)(4)  of 
the Rules,14 Americom IS LIABLE FOR A MONETARY FORFEITURE in  the 
amount of ten  thousand dollars ($10,000)  for failing to  comply 
with  radio  frequency  radiation  maximum  permissible  exposure 
limits applicable  to  transmitters  on towers,  in  willful  and 
repeated violation of Section 1.1310 of the Rules.

18.       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.15  
Payment may 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 reference NAL/Acct.  No. 
200332800006 and  FRN 0003-7662-92.   Requests for  full  payment 
under an installment plan should  be sent to: Chief, Revenue  and 
Receivables Group, 445 12th Street, S.W., Washington, D.C. 20554.

19.       IT IS FURTHER ORDERED THAT  a copy of this Order  shall 
be sent by first  class mail and  certified mail, return  receipt 
requested, to  Americom's counsel  Dennis P.  Corbett, Esq.,  and 
Phillip A. Bonomo, Esq., Leventhal  Senter & Lerman PLLC, 2000  K 
Street, N.W., Suite 600, Washington, D.C. 20006-1806.


                                FEDERAL COMMUNICATIONS 
COMMISSION




                                David Solomon
                                Chief, Enforcement Bureau
 

  - Unhandled Picture -   

_________________________

1   47 C.F.R.  1.1310.

  2 Americom Las Vegas Limited Partnership, 17 FCC Rcd 26689 
(Enf. Bur. 2002).   

  3 The agents averaged two sets of measurements, one that 
measured 126% of the MPE limit and one set that measured 159% of 
the MPE.

4          OET  Bulletin  65, ``Evaluating  Compliance  with  FCC 
Guidelines for Human  Exposure to Radiofrequency  Electromagnetic 
Fields'' (August 1997). 

  5 47 U.S.C.  503(b).

  6 47 C.F.R.  1.80.

  7 47 U.S.C.  503(b)(2)(D).

8       OET Bulletin 65 contains the following guidelines: 

     There may be situations where RF levels may exceed the MPE 
     limits for the general public in remote areas, such as 
     mountain tops, that could conceivably be accessible but are 
     not likely to be visited by the public.  In such cases, 
     common sense should dictate how compliance is to be 
     achieved.  If the area is properly marked by appropriate 
     warning signs, fencing or the erection of other permanent 
     barriers may not be necessary.

9         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).

  10 As provided by 47 U.S.C.  312(f)(2), a continuous 
violation is ``repeated'' if it continues for more than one day.   
The Conference Report for Section 312(f)(2) indicates that 
Congress intended to apply this definition to Section 503 of the 
Act as well as Section 312.  See H.R. Rep. 97th Cong. 2d Sess. 51 
(1982).  See Southern California Broadcasting Company, 6 FCC Rcd 
4387, 4388 (1991).

  11 17 FCC Rcd 24184 (2002); Forfeiture Order 18 FCC Rcd 27069 
(2003).

  12 In A-O Broadcasting Corporation, supra, United States 
Forest Service personnel, who were unaware of the risk, had 
unrestricted access to an area in an observation tower that 
exceeded the RFR  MPE limits by over 1000%.

  13 See, e.g., AMFM Radio Licenses, L.L.C., e t al, 18 FCC Rcd 
22769 (2003).
   
  14 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  15 47 U.S.C.  504(a).